Brexit and the contest between process and publicity

1st March 2018

When historians one day seek to make sense of Brexit what will be the most useful documents for them to look at so as to understand the respective approaches of the UK and the EU?

For the EU, it will be straight-forward.

To understand how the EU approached the UK’s departure from the EU, the historian will be able to look at position papers and other official documents.

Of course, these documents will need to be supplemented by other evidence not in the public domain.  But there has been a remarkable consistency between what the EU has said about Brexit and what has done.  One set of public statements has led to another.

For example, you can trace most parts of the draft Withdrawal Agreement back to the December joint report, and then in turn back to the position papers from the negotiation.

You can then trace the structure of those position papers back to the EU’s approach to sequencing, and then all the way back to the first press releases after the Brexit vote.

This is not to say that the EU’s approach is correct.

There are legitimate concerns that, for example, it may be over-reaching its hand on the Northern Ireland issue.

And if the EU does not end up with a deal at all, because what it offers is not acceptable to the UK government then all of this will have led to nothing.

But the one thing which is most apparent is that to understand the EU’s approach to Brexit means you have to understand process.

The EU is process-driven. That is why one can say that “Brexit by timetable” is taking place.

But what should the historian look at to understand the UK’s side?

It would not be many official documents. Most of the UK’s formal documents on Brexit have not been impressive.

There was, for example, a rushed and improvised white paper (published just so as to meet a Labour demand before the Article 50 vote).  The white paper has hardly been referred to since.

And the less said about the sector analyses the better.

Even the Article 50 notification went on for pages when only a couple of paragraphs at most were needed for the document to do its job.

The historian would have to look elsewhere.

The historian would have to look at Theresa May’s speeches – especially the Conservative Party conference speech, the Lancaster House speech, and the Florence speech.

The historians would have to look at newspaper articles, especially those by Boris Johnson and Michael Gove.

But most of all a historian would need to look at the rhetoric, on both sides, of the relationship between the government and its supporters, on the backbenches and in the media.

For, in contrast to the EU’s emphasis on process, the UK government’s emphasis has been on publicity.

This is not to say this is a bad thing: a government taking controversial decisions is right to mobilise and maintain support.

The problem is that this can lead to a mismatch: in their approaches to Brexit, the EU and the UK government are often like vessels passing in the darkness.

(And this is not an issue unique to Brexit.  In America, Trump and his political supporters seem to believe that tweets and memes are how to deal with the slow methodical march of Robert Meuller and the FBI.)

Process is not everything: a bureaucracy rarely wins over hearts or even minds.

And so when process prevails, as it usually will, the populists can seek to discredit it and blame it for the populists’ own failings.


Regardless of the outcome, what the UK and EU do not have on Brexit is any genuine engagement.

And this is so needless.

The UK has an outstanding civil service and diplomatic service.

UK officials have negotiated opt-out after opt-out with the EU.

It was even a UK (and Conservative) member of the European Commission who put in place the Single Market in the late 1980s.

UK officials are more than a match for their EU counterparts, but only if they are allowed to be so.

But on Brexit, the UK has thrown away this benefit.

David Cameron did not allow the civil service to prepare for the possibility of a “Leave” vote – even though that was one of two foreseeable outcomes of a binary referendum.

Theresa May created two new pop-up Whitehall departments for Brexit, both of which have not fared well, instead of using the inherent strengths of the Foreign Office, the Treasury, and UKRep.

She then carelessly lost Sir Ivan Rogers because she did not like what he had to say.

Just this week, Liam Fox has derided a former senior trade department official.

It is almost as if that UK ministers do not want to do well in the negotiations with the EU.  They instead just want to win support for their position.

But to do well against those who are process-driven, you need to be able to match them.  And on Brexit, the UK could have been the equal to the EU in the negotiations.

So if the UK does not do well with Brexit, it may well be that a fair-minded historian does not conclude that this was because the UK “failed” – but because the UK did not even engage.


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Where are we now on Brexit?

31st January 2018

My apology for the lack of posts: I was unwell from before Christmas until a few days ago.

There is everything, and nothing, to say about Brexit.

The same hard facts are still there, and looming.

The UK will leave the EU by automatic operation of international law on 29 March 2019, unless something not now in view happens.

The UK government does not know what it wants, and there is no UK Brexit policy worth the name.

The EU27 do know what they want and, again unless something not now in view happens, that will be what the UK gets – both in terms of transition arrangements and future relationship.

There is less and less time for there to be any further referendum before 29 March 2019.  Nor is there any real time left for a “Remain” reversal of the Brexit process.

Any “transition” arrangements will be for the the full acquis of EU law, and all the paraphernalia of EU obligations, but without any formal presence in any institution – this is, as somebody has said, vassal status.

And it remains (bleedingly) obvious that the Article 50 period should be extended substantially beyond 29 March 2019 to give UK more time, but this seems as politically impossible as ever.

What is changing is the steady reduction of time, and the widening awareness of UK’s inability to address the problems.

All this, and nobody knows what will happen.


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The subtle rhetoric of Barnier’s now-famous graph

4th January 2018

The now famous graph of the EU’s Brexit negotiation team is an impressive exercise in subtle rhetoric.

The UK’s “red lines” are explicitly stated.

And as one goes downward (of course) from left to right one can only blame the UK for adopting such positions.

At the base of the stair is where the UK must end up, by reason of its “red lines”.

But this outcome is not only because of the UK’s positions.

The EU also has its own red lines – but you will not see them in the graph.

For example: all four freedoms, the single market is indivisible, no cherry-picking, etc.

Those red lines are taken as given.

And so it is the UK which looks unreasonable and indeed foolish.

Of course, there is something in this: the UK has adopted a number of positions and seems unwilling (or unable) to think through the implications of those positions.

The graph shows those implications well.

But what is not said explicitly is more important than what is said – and these unstated red lines exemplify how the EU has (so far) controlled the terms of the Brexit negotiations.


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There’s a hole in my Brexit

8th December 2017

There’s a hole in my Brexit, dear Liza.

Then fix it, dear Henry.

The border is too hard, dear Liza.

Then soften it, dear Henry.

With what shall I soften it, dear Liza?

With regulatory alignment, dear Henry.

With what regulations, dear Liza?

With Internal Market and Customs Union rules, dear Henry.

Where do I get these Internal Market and Customs Union rules, dear Liza?

From the European Union, dear Henry.

And how do I get these rules, dear Liza?

From a Norway-type agreement, dear Henry.

What is a Norway-type agreement, dear Liza?

Much the same as staying in the EU, but with no say as to the rules, dear Henry.

[Wait for it.]

There’s a hole in my Brexit, dear Liza.



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There will soon not be enough time for a further referendum before 29 March 2019

1st December 2017

Here is some downbeat information for those who want a further referendum on Brexit before 29 March 2019, the day on which the United Kingdom leaves the European Union by automatic operation of law (unless something exceptional and not currently in view happens).

There will soon not be enough time to get legislation in place.

A further referendum, like the last one, would require its own legislation.  There would also need to be a period for implementing regulations and (of course) for a campaign.

The legislation for the last referendum was the European Union Referendum Act 2015.

A look at its parliamentary stages shows that it took from May to December 2015 to get through parliament: seven months.

Straightforward implementing regulations were still being passed three months later in March 2016, and there was even an urgent regulation in June 2016.

The implementation and campaign period was a further three to six months before the June 2016 vote.

Taking the 2015 legislation as a precedent, it would require ten to thirteen months between commencing the legislative process and there being a vote.

Now factor that into the time available: a new Bill would need to be presented by April next year for a vote before 29 March 2019.

Of course: the process could be hastened.  But the 2015 legislation was botched even at its (relatively) leisurely pace – the urgent need for voter registration regulations in June 2016 was one example.

Another example of botched legislation – which would have made the Miller litigation and the 2016 Notification Act unnecessary – would have been an explicit provision on whether the vote was binding or not.

Referendum legislation, like most most things to do with Brexit, should not be rushed.

And if the vote is to be on a “deal” then that deal is unlikely to be in final form until after April 2018 – so the legislative process would have to begin without anyone knowing what the referendum would be about in that respect.

There is the possibility that the exit date could be changed and the Article 50 period extended, though this is currently not being proposed on any official level.

But unless there is such an extension, soon time will run out for those who want to reverse Brexit by a referendum.

(My opposition to a further referendum is set out at this FT post.  That opposition is primarily on basic constitutional principle. Not a great fan of referendums.)


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The early history of the 58 Brexit sector analyses

This post tells the early story, based on public domain sources, of the UK government’s 58 analyses of sectors which will be affected by Brexit.

There has now been a binding vote by the House of Commons for the government to provide these panalyses to Parliament.

The government has said it will comply with this vote, though we do not yet know extent of this promised disclosure.

But whatever is eventually published, the story of these reports is interesting in itself and shows much about what has been wrong about how the UK government has prepared (or not prepared) for Brexit.



July 2016

As early as July 2016 (the month after the vote) the then relevant ministers told a parliamentary committee of the need to examine the impact of Brexit on various sectors.


September 2016

Once appointed, Mr Davis himself described the need to examine various sectors affected by Brexit in his evidence to a Lords committee in September 2016.

The day after Mr Davis is pressed about this need, and the obvious problems about such analyses and the robustness of the evaluation of data, at a Commons committee:

“Mike Gapes MP: Yesterday you told the Lords EU Select Committee that you are going to ask businesses to give you a quantitative assessment of the impact of various scenarios on their sectors. How are you going to assess the validity of that data?

“Mr Davis: You have elided two things. I think I was talking to Lord Green, and what I said was that we will carry out quantitative assessments and, yes, of course, some of the information will come from there, but it will be the same way you test any data given to you. You look at how it was calculated, you ask for the—

“Mr Gapes: You will carry it out, or the businesses will carry it out?

“Mr Davis: We will carry out some of our own, yes; that’s right. The example I cited earlier is people comparing the effect of tariffs and nontariff barriers. How do you assess that? How big are the problems? Where are they?

“Mr Gapes: You also said that your Department doesn’t yet have the capacity to assess that data. When do you expect to have that capacity?

“Mr Davis: The trite answer is “before we need it”, but the sequence of events is a little like this: we are, at the moment, doing the round tables and the bilateral discussions; we will then be asking for data and submissions from them, which is already coming in some cases; we will then be doing the assessments. That is a little way away. The Department has doubled in one month, and I suspect it will double in size again, and that is about the point at which we will be looking for that information.

“Mr Gapes: Will that be before or after article 50 is triggered?

“Mr Davis: Before.”

Then, in answer to another question at that evidence session, about what his new department is doing, Mr Davis mentioned the following:

“A variety of things. First, there is the sectoral analysis: they are working through about 50 cross-cutting sectors—what is going to happen to them, what the problems of those industrial groups are, and so on. That is both them and in liaison with other Departments. Some of them are setting up an engagement strategy.”

So the figure of “about 50” is in place quite early in this process, by September 2016, and Mr Davis is openly confident that the work will be done before Article 50 is notified. Indeed, so confident is Mr Davis that he also states at that session:

“Because of the way the process is staged—data gathering at this stage, engagement at this stage, analysis later, policy design later after that, and so on—I don’t think we are going to have a problem.”


October 2016

A month later, in October 2016, Mr Davis assured the Commons:

“The Government continue to undertake a wide range of analysis covering all parts of the UK to inform the UK’s position for the upcoming negotiation with the European partners.”

Also in October 2016, the then junior Brexit minister David Jones told a Commons committee:

“…my Department is involved in various analyses. We are analysing over 50 sectors and that includes, of course, engaging very closely with other Government departments so that we can establish what we consider to be the best possible terms for departure. That, of course, will inform our negotiation once it starts.”

And again in October 2016, then Brexit minister Lord Bridges tells a Lords committee that the reports are in a “manageable format” and that they dealt with the impact of Brexit on sectors:

It is an attempt to try to get this into a manageable format so that we can analyse what Brexit might mean for those particular sectors. 


December 2016

By early December 2016, the analysis had become “extensive”, with Mr Davis telling the Commons:

“…we are carrying out an extensive programme of sectoral analysis on the key factors that affect our negotiations with the European Union”.

Mr Davis then again asserted that all the analysis will be in place before the Article 50 notification:

“This is a single-shot negotiation, so we must get it right, and we will get it right by doing the analysis first and the notification second. I will do that.”

Mr Jones, at the same session, added more detail about the analyses:

“The Department is carrying out a programme of work to analyse the economic significance and trade dynamics of more than 50 sectors of the economy. That includes analysis at both national and regional levels.”

At this point we have to note that in December 2016 a motion is passed by the House of Commons in support of Brexit and the March deadline for sending the notification, supported by the Labour front bench as well as by the government. For the purposes of this post, the important part of the motion was that the House:

“confirms that there should be no disclosure of material that could be reasonably judged to damage the UK in any negotiations to depart from the European Union after Article 50 has been triggered”.

Who would be the “reasonable judge” of whether any such disclosure would damage the UK was not stipulated. Of course, it would be the government itself, rendering it a fairly meaningless and self-serving provision: the government could use the “damage” excuse to cover anything which it did not want to disclose, whether because of mere embarrassment or something serious. A few days later the Brexit secretary David Davis is before a Commons select committee, and he again mentioned the analyses:

“We are in the midst of carrying out about 57 sets of analyses, each of which has implications for individual parts of 85% of the economy. Some of those are still to be concluded.”

So by December 2016 Mr Davis is more exact about the number of the analyses and about their overall economic significance. (This December 2016 statement has been cited recently as if it were the first reference to the analyses, although as the quotes above show, the analyses dated back until at least September 2016.) Mr Davis then added, referring to the Commons motion of the week before:

“As you will remember from the motion, one of the constrictions in the Government-amended motion, which got through by a majority of 372, was that I should do it in such a way, or the Government should do it in such a way, that it does not undermine our negotiating position. We have got to be very careful about what we publish. I want to be as open as we can be, but we must be sure that we are not undermining our own position.”



January 2017

In January 2017, Brexit ministers are still talking up the analyses – here was Mr Jones at a Lords committee, where the analyses are coupled with “extensive” consultations:

“As you are aware, my department is conducting an extensive programme of consultation with more than 50 sectors. It will not surprise you to hear that the City of London is at the very top of that list. That consultation continues.”

Later that month, in reply to a question about whether the government had made an assessment of the potential effect of the UK leaving the EU on businesses in (a) the UK and (b) the EU, another Brexit minister Robin Walker said:

“Our Department, working with officials across government, continues to undertake a wide range of analysis, covering the entirety of the UK economy and our trading relationships with the EU. We are looking at more than 50 sectors, as well as cross-cutting regulatory issues.”

At the same session, Mr Jones said the analysis is “thorough”:

“The Department has been undertaking a thorough analysis of more than 50 business sectors.”


February 2017

In February 2017, the government produced a (now largely forgotten) White Paper on Brexit. It was a flimsy and rushed document, but parts of it are revealing. In respect of the fifty or so analyses, it said:

“We have structured our approach by five broad sectors covering the breadth of the UK economy: goods; agriculture, food and fisheries; services; financial services; and energy, transport and communications networks, as well as areas of crosscutting regulation. Within this, our stakeholder engagement and analysis covers over 50 specific sectors.”

In introducing this White Paper, Mr Davis told the House of Commons:

“We continue to analyse the impact of our exit across the breadth of the UK economy, covering more than 50 sectors —I think it was 58 at the last count—to shape our negotiating position.”


March 2017

Days before the Article 50 notification on 29 March 2017, Mr Jones told a Commons committee of the “huge amount” in respect of “over fifty sectors”:

“There is quite a lot of work going on to address all sorts of eventualities. You are quite right: it is quite possible that the negotiations will turn out to be impossible to conclude, or there may well be a negotiated settlement whereby we leave on other terms. That is why my department has been carrying out a huge amount of work over the last seven or eight months, engaging with over 50 separate sectors of the economy, many of which have cross-cutting issues that need to be addressed, to ensure we are in a position to plan for whatever may eventually take place.


April 2017

In April 2017, Labour MP Seema Malhotra asked about an economic evaluation of “no deal”. Mr Jones replied, describing the analyses as “in-depth” and – interestingly – in the past tense (“carried out”):

“The Department has carried out an in-depth assessment right across 50 sectors of the economy. We have made it clear, however, that it is not in the national interest for us to produce a running commentary on the way in which we are developing our negotiating position, and that will remain the case.”


May 2017

This use of the past tense is again used by Mr Jones in a letter dated 23 May 2017 in response to request for the analyses from Green MEP Molly Scott Cato:

“DExEU has conducted analysis of over 50 sectors of the economy”


June 2017

In June 2017 Tracey Brabin, the Labour MP, decided to ask more about the reasoning for the non-disclosure (though not for the reports themselves):

“To ask the Secretary of State for Exiting the European Union, with reference to the Answer of 30 March 2017 […], for what reason he believes the information requested would undermine the ability to negotiate the best possible deal for Britain.”

In a reply a few days later, Mr Walker held to the view that blanket disclosure would “harm” the UK’s negotiating position, though he said a list of the sectors would “shortly” be disclosed:

“The Department for Exiting the European Union, working with officials across Government, continues to undertake a wide range of analysis to support our negotiations. Our work covers the breadth of the UK economy, and we are looking in detail at more than 50 sectors as well as areas of cross-cutting regulation. Parliament has agreed that we will not publish anything that would undermine the Government’s ability to negotiate the best deal for Britain.

“Now, that the Prime Minister has initiated the Article 50 process and negotiations have begun in earnest, I can confirm that we will shortly be publishing the list of sectors we have been examining – though this of course does not mean that we have changed our position on revealing information which may harm our negotiating position. “


The analyses by June 2017

So by June 2017, we had already been told:

– the number of analyses (57 or 58)

– the analyses are in a “manageable format”

– the supposed overall significance of the analyses (85% of the economy)

– the analyses covered economic issues and “trade dynamics”

– the analyses were “extensive” and “thorough”

– the analyses were at both national and regional level

– the analyses dealt with the impact of Brexit on sectors

– the analyses were to be complete before notification and before Brexit policy-making

– the government was already minded not to publish any of the analyses, using the excuse that disclosure would undermine the government’s position


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Brexit and tribalism

27th November 2017

This is a tweet in response to yesterday’s post here at Jack of Kent.

The post yesterday was critical of a tweet heavily RTd by influential Leavers.

The post also warned Remainers that the UK will leave the EU by automatic operation of law on 29 March 2019, unless something exceptional happens – and that re-fighting the 2016 referendum would not directly lead to Brexit being revoked.

But @RemainerAction saw this as “crossing to the other side”.


In fact, I was never on the Remain “side” to begin with, at least not in principle.

I have no objection to Brexit in principle – my blogging is usually about the problems about how it is (not) being done in practice and the madness of the Article 50 process.

(That said, I admire the Single Market and the “four freedoms”.)

The reason I have so far focused on Leave daftness and lack of realism is because it is evident in (indeed, demonstrated by) news events every day.

But Leave do not have a monopoly in their lack of realism.

Some Remainers seem to think that the Article 50 process, once triggered, can be ended lightly.

Just a matter of politics; just a quick fix; just some tinkering; it will all be alright in the end.

And there is some force to this: if the politics of Brexit change, then the legal process can be ended (or paused).

If a lever is pulled then the conveyor belt to the big industrial jagged saw will jolt and then halt.

But the politics takes place in a framework of hard law: and the hard law is that, under the EU treaty, the UK departs the EU on 29 March 2019 (unless something exceptional happens).

The politics of Brexit are subject to that deep legal truth.

But some Remainers are as blinkered as the hardest hard-Brexit Leavers.

Every challenge to Brexit must be cheered, however ludicrous.


Partisanship on Brexit is not just a feature of Leave supporters.

Brexit will not be easy; but reversing Brexit, since the Article 50 notification has been sent, will also not now be easy.

There is an old famous observation that the first battles of each war are lost when generals re-fight the battles of the war before.

The battle to reverse Brexit may also be lost because Remainers (and others opposed to the government’s policy on Brexit) are re-fighting the referendum.

Brexit can only be stopped (if at all) if:

(a) the UK government formally asks the European Council that the Article 50 notification be revoked; and

(b) the European Council accepts this revocation (or, if the revocation is not accepted, the revocation is upheld by the European Court of Justice).

Unless a political or legal action leads directly to this outcome then it will not make the difference.  Brexit will still go ahead.

And pointing this out is not to “cross to the other side”.

It is instead to be looking ahead.


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A false hope for Remainers

26th November 2017

Since the referendum result there has been a lack of realism about Brexit by the UK government and many Leavers.

The current difficulty about the Irish border are one of many examples.

But lack of realism is not a monopoly of those wanting the UK to depart the EU.

There is wishful thinking – indeed, magical thinking – by those who want the UK to remain in the EU, or at least by those who want to have a Brexit significantly “softer” than that which is currently likely to happen.

The (grim or glorious) truth is that the UK will be leaving the EU by automatic operation of law on 29 March 2019, unless something exceptional happens to change that legal position.

On the face of Article 50, the departure date can only be changed in two ways.

First, the date can be changed to a later (or even earlier) date if that is part of the overall Brexit agreement.

Second, the date can be postponed with the unanimous consent of the UK and EU27.

There is nothing express in Article 50 about the Article 50 notification being capable of revocation (and there is no judicial decision on the point) – though many commentators agree that a revocation sent in good faith is likely to be accepted by the European Council and, if litigated, upheld by the European Court of Justice.

But unless the date is altered in accordance with one of the two ways set out in Article 50, or unless there is a revocation which is agreed either by the European Council or the European Court of Justice, then the UK leaves the EU on 29 March 2019.

The implication of this is that there is nothing the UK can now do – directly – to stop or even pause the process.

What power the UK had went with the Article 50 notification.

The most the UK government can do now, if it wanted to pause or halt the process, is to ask the European Council (and, if refused, the European Court of Justice) and hope.

There is nothing which any organ of the UK state – the government, the courts or parliament (still less the devolved administrations) – can do to directly stop the clock.

The clock is now outside the UK’s reach.

The best that could be done is for the UK to ask the EU one way or another to stop the clock.

A false hope

This futile position has not prevented those opposed to Brexit (or the government’s policy on Brexit) from seeking alternative ways to end or slow down the process.

One example was the reaction to this tweet yesterday, which was heavily RTd by influential Remainers on Twitter.

The piece it links to is here and it is titled:

Exclusive: Brexit Referendum ‘May Need to Be Redone’

The words in quotation marks are a little odd, as they do not appear in the text.

The piece does say “that UK intelligence is minded to recommend to Theresa May’s government that the Brexit vote be redone, as it is not thought that the vote was ‘free and fair’”.

A mere recommendation is less compelling than a necessity, so the title does not even match the text.

But the overall impression the title and the piece gives is that there would be a requirement – a “need” – for there to be a repeat referendum if the “sources” are correct in this information.

At this point I should say that I happen to know and like Louise Mensch and so nothing in this post should be taken as personal hostility to her.  I do not know about, or even understand, most of what she now tweets about regarding US politics and Russia.

But I do happen to know a little about the law relating to the Brexit referendum.

And this means I can say that the contention of that piece is legal twaddle.

Even if those “sources” were correct there would be no legal necessity for there to be a repeat referendum.

The 2016 referendum was advisory.

There are no laws in place for there to be a repeat referendum, or even to invalidate the result of the original referendum.

A repeat referendum would require brand new primary legislation – and that would have to be passed by parliament.

It is not a matter for Theresa May or the government.

They cannot strike down the result of the referendum even if they wanted to, regardless of the supposed recommendations of security advisers.

There would be no “need” for a repeat referendum.

The heavily RTd piece does not provide a basis for it being a necessity, and there is no legal mechanism currently in place for a repeat referendum.

The article just gives false hope to those opposed to the UK government on Brexit.

This is not to say that the “sources” are incorrect on Russian money and influence – I have no idea, though it seems implausible.

But even if those sources are correct, the referendum result will still stand.

And the referendum result no longer matters.

Parliament voted to give the prime minister power to make the Article 50 notification with a dedicated Act of Parliament.

The prime minister sent the notification under Article 50 on 29 March 2017.

(Though there is another strand of wishful/magical thinking that asserts that the notification was somehow not legally valid – a sort of 2017 version of the warming-pan theory.  Even if there was anything to this claim it is hopelessly out of time, as well as contrary to what the Supreme Court said in Miller: “Parliament may decide to content itself with a very brief statute” etc (para 122). )

The Article 50 process has started.

The clock is ticking.

Impugning the referendum result makes no direct difference, legal or otherwise.

Reality and Remainers

The UK government’s Brexit policy keeps smashing into the walls of reality.

Much of what Leave said about the ease with which Brexit could be done, or the ease with which the UK could enter into new trade deals, and about many other things, were unrealistic.

But lack of realism is not just a fault of those on the other side of a debate.

Unless the Article 50 clock is formally stopped or paused, Brexit is coming and it will happen (all other things being equal) on 29 March 2019.

The only way the clock can be stopped or paused (or the deadline delayed) is if the UK government asks the EU to do so, and the EU agrees (either the European Council or, if not, the European Court of Justice)

That should be the focus of Remainers and others opposed to the government’s misconceived policy on Brexit.

Attacking the legitimacy of the referendum may perhaps have a indirect political effect – which may lead to the government making the desired request.

That, however, is still indirect.

The referendum could perhaps be discredited absolutely, and it still would not make any direct legal difference.

All this said, Brexit is not inevitable – it could be stopped or delayed, if the UK and EU wanted this.

But if you are a Remainer or someone also opposed to the government’s policy on Brexit then do not get your hopes up on the back of the basis of tweets like the one discussed above.

Stopping Brexit will take a lot more than that, if it can be stopped at all.



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Brexit Diary: A “reality check” for Remainers

21st November 2017

The UK government is encountering problem after problem with Brexit.

There is a real prospect either of there being “no deal” or of a capitulation to the EU’s demands.

In terms of administration – basic points such as customs and border control – the UK state is nowhere near ready.

But the accumulation of these difficulties does not make Brexit any less likely.

Unless something exceptional happens, the UK will leave the EU by automatic operation of law on 29 March 2019.

Very little can prevent this.

There is a possibility that the date may be delayed, though this would require EU agreement in one way or another.

There is also perhaps the possibility that the Article 50 process could be suspended or even cancelled, though Article 50 is silent on how this could be done.

But even these options would require political action as deliberate and formal as the Article 50 notification in the first place.

These options would not happen just because of the weight of the UK government’s difficulties.

The problems are legally irrelevant.

A hard firm legal process has commenced: it cannot now be easily derailed.

And there is no political prospect – at the moment – of the UK government seeking to change the course of departure: there is no general election due, the Tories and DUP have a majority in the Commons, and the Labour front bench nod-along with Brexit in principle, if not in some details.

For the Article 50 process to be stopped or even paused requires the UK government to make a decision it seems (currently) unlikely to make before 29 March 2019.

There is no obvious way the difficulties of Brexit can be converted to formal political preventative action: no glidepath, no way of joining the dots.

This is not to say that the difficulties are not immense: the Irish border issue is only one of many which seem impossible to resolve.

And it is not to say Brexit is inevitable: it could be prevented if the UK government or parliament wanted to do so, and the EU agreed (either the European Council or, if litigated, the European Court of Justice).

But automatic departure is the fixed default position.

Brace, brace.


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Regular blogging at Jack of Kent is supported by the kind sponsorship of Hammicks Legal Information Services. 


Comments are pre-moderated and will not be published unless they are polite or interesting/informative (and preferably both).  




The uncertainty of Brexit

20th November 2017

A lot has happened on Brexit in recent weeks and this post sets out what some general views as to where we are now in this adventure (or misadventure, depending on taste).

There is one thing which is more likely than not: the United Kingdom will, by automatic operation of law, cease to be a member of the European Union on 29 March 2019.

This is regardless of there being a deal or not.

The departure date could be later (or even earlier) but only by agreement and there is not a plausible prospect of such a change.

Those who want Article 50 notification revoked are probably correct in saying that if UK sought to revoke the notification (in good faith rather than as a negotiating ploy so as to re-set the clock) then it would probably be accepted.

But such a prospect is not obvious as of today.  It is not wishful thinking to say the notification can be revoked as a matter of law; but I fear it is wishful thinking to believe that it will be.

Little else is more likely than not.

The UK may not even have the necessary legislation in place in time.

The UK and EU may not have an exit deal in time.

The issue of the Irish border does not have any obvious solution.

The UK does not have a settled view on what trade relationship it will have with the EU after Brexit, though it is plain that a Canada-style Free Trade Agreement is the most likely outcome, regardless of what the UK says it wants.

The causes of all this uncertainty and lack of direction have been rehearsed many times.

But this does not make what will happen any the more obvious.

What will happen on, and after, the day of departure is still anyone’s guess.


For email alerts for my posts at Jack of Kent – including for Brexit updates – please submit your email address in the “Subscribe” box on this page.


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Regular blogging at Jack of Kent is supported by the kind sponsorship of Hammicks Legal Information Services. 


Comments are pre-moderated and will not be published unless they are polite or interesting/informative (and preferably both).