Brexit: the end of the beginning

2nd March 2020

If Brexit were a boxset, we are now about the start of season two.

The first season, of course, had a story of its own: a referendum that did not need to be held, leading to a result that was not expected (or anticipated), resulting in a departure on withdrawal terms few positively wanted.

(It is difficult to think that we are still within what would have been the five-year term of the 2015 parliament, where David Cameron had a good Commons majority elected on a manifesto that included a commitment that the United Kingdom be at the heart of the European Union single market.)

Now the United Kingdom is outside the European Union (let alone the single market) as a matter of law, even if the terms of the withdrawal agreement will make it a Brexit in name only until (at least) the end of this year.

Certain elements of the withdrawal agreement – on citizenship, financial contributions, and on a range of technical matters – will endure beyond the transition period.  

Accordingly the threat of “no deal” at the end of this transition period is not as drastic as it would have been had there been no deal for the departure itself.

The scope of issues to be agreed (or at least capable of being agreed) is narrower than before the withdrawal agreement.

What is now to be negotiated (or not) is the future relationship beyond the end of the transition agreement.

One way of following this is by the heady heated excitement of political commentary, where one can form two different views a day (or an hour, if you are on Twitter) on any relevant issue.

And the politics of Brexit are crucial – it is only by understanding the politics of Brexit that you will understand why otherwise incomprehensible decisions are taken and daft unsustainable positions adopted.

But politics is not the only way of understanding Brexit – and a politics-only approach is itself limited and will miss many things.

For along with the pomp and propaganda, there is process.

And the process is about arriving (if possible) at an agreed text.

And a process which is intended to end with an agreed text tends, if the parties are taking it seriously, with a number of preliminary texts.

And it is by having regard to the texts and the process that one can (often) understand where Brexit is going and not going.

Again – form and structure are not everything – but they can provide the situations against which politicians and the media then react.

The two key texts for this negotiation are the negotiation guidelines of the European Union and the United Kingdom’s Command Paper on the those negotiations.

Of course, these are opening positions – but this does not mean they are trivial and can be dismissed.

On the European Union side especially, thought will have gone into what they want to achieve in the final text, and the guidelines will have been compiled by thinking backwards from what they want to achieve with that final text.

And in respect of the withdrawal agreement, early texts of the European Union can be seen as leading directly to final positions.

Remember: this is not the European Union’s first rodeo: they have the valuable experience of negotiations over Grexit, and of association agreements and free trade agreements.

This does not mean they are always right, or that that they will prevail, but to the extent that experience provides an advantage, the European Union will have the benefit.

Against this process-minded approach, there will be the temptation for those supporting the United Kingdom government to adopt again the bluster and silliness that was a feature of the exit negotiations.

Given the membership of the cabinet, that is a real risk.

So it is a relief that the United Kingdom’s Command Paper on the upcoming negotiations is a serious and not a silly document.

And with the two parties prepared (if unevenly) for the negotiations, and as both parties want an agreement (if possible), the second season of the Brexit boxset can begin.

It may well be that the second season will be yet more exciting (and scary) then the first season – but at least we (and the parties) will be ware of how the first season went.

**

Thank you for visiting this independent law and policy blog.

If you value this free-to-read and independent constitutional, legal and policy commentary, you can follow and support this blog by:

  • subscribing to this blog, there is subscription box above (on an internet browser) or on a pulldown list (on mobile); 
  • becoming a Patreon subscriber.

**

Comments are welcome but pre-moderated, and so comments will not be published if irksome. 

21 thoughts on “Brexit: the end of the beginning”

  1. Negotiated outcomes depend, in large part, on the intentions of the participants. If one side seeks to gain overbearing advantage without the leverage to achieve this, the negotiations are very likely to fail.
    It would appear, from many comments by members of the Government, that the advantage they wish to gain is the right to trade with the EU, but with no obligations to follow rules and procedures or recognise minimum standards. If this is the government’s position, the outcome is almost certainly a no-deal situation in December, with all the chaos and uncertainty that will result. Happy days!

    1. This is not true. What the UK wants is to be treaded no differently from any other country that has signed a trade deal with the EU.

      As to “chaos” it won’t be as severe as Remainers like to claim. Where are the 800,000 job loses we were promised? But would no deal be as chaotic as what we’re facing now with the Coronavirus? In fact you could argue it’s actually forcing companies to prepare, e.g. supply line disruptions. A no deal won’t be as bad as some would like to claim.

      1. – No country that the EU has an FTA with is treated equally to another one. FTAs are highly specific, customised agreements depending on the particular economic relationship between its state parties. That’s why they take so long to negotiate. The UK’s proximity to the EU and the large volume of trade between them require far stronger procedural safeguards than any other FTA the EU has.
        – Part of the 800.000 job losses have already happened. Not through mass layoffs, but through deferring or cancelling of investment and hiring that would have otherwise happened. In some cases, people will have been given fewer hours to work etc. And the most important point: the shock still needs to happen and is highly dependent on the (non-) agreement on the future relationship.

    1. Thanks for posting this Gillian, it’s exactly how I feel too. I look forward to reading the Law and Order Blog.

  2. My only request is that we hand this mess over to some new writers.

    I was rewatching Life On Mars the other day – Can we check Weiss & Benioff in the bin and have Graham/Jordan/Pharaoh take over? All the drama, but with tighter plots and proper thematic storytelling? Otherwise, I fear Season 3 will wind up being written by John Wagner or Cormac McCarthy

      1. Yes – It’s well established that Brexit S1 has gone as drastically off the rails as GoT S8 did (indeed, it could well be argued that GRRM himself was writing 2016, aka the Year Everybody died And Politics Went To Hell)

        Compere that to the taughtly-written, carefully-executed, detail-orientated LoM – Absolutely no comparison

  3. The second season may be more exciting but the scriptwriters haven’t decided on their plot line yet. It may just turn out to be confusion and unintended consequences one after another. No discernible narrative just chaos.

    1. Like Lost.

      Now it’s all over, Abrams and Lindelof freely admit they were making it up as they went along, much as Johnson and friends do now.

  4. Rational and reasoned as usual but I don’t quite see the relevance of the EU’s experience with respect to “Grexit”. True, the EU has this experience, but a) this was with a Member State, not a third country, which is what the UK is now, and b) this related exclusively to Greek membership of the euro(-zone). The relevant experience for any EU-UK agreement is more that with EU trade and cooperation agreements negotiated with numerous third countries: 33 FTAs alone, many covering more than one country, are currently in force and others are in the pipeline. Given the ignorance of customs, trade and even transport issues revealed by UK politicians, and the attitude of some of those politicians to UK civil servants who DO have any knowledge and expertise, one can only be apprehensive.

    1. I thought the relevance so self-evident to not need an explanation, but here we go: Grexit required EU to (a) negotiate and (b) use its leverage in respect of (c) an unprecedented and (d) unpredictable situation that (e) could have severe implications for the whole EU economy, while (f) trying to keep a rules-based approach and (g) ensuring consensus among member states.

      A veteran of that has rather useful experience.

  5. It is turning into The Walking Dead. Umpteen seasons later, we’ll still be looking at a weak plot and will be past caring. I suspect that they are hoping for viewer fatigue.

    1. Although, given

      * The levels of performative theatrics involved
      * The fact that some fans know it’s fake but play along all the while sneering at those who think it’s real
      * Executive meddling means the wrong people get pushed to the moon
      * Internal coherence is preferred, but easily chucked aside
      * A convincing persona can mask a massive lack of talent
      * Pantomime Villainy can be an asset if used right

      ….We have to conclude that Brexit Politics is, in fact, most like Professional Wrestling, specifically the WWE (formerly WWF)

  6. There was an analysis published the other day (Bloomberg, if memory serves) that suggests that the cost (in lost growth of GDP) to the UK from Brexit has already surpassed the total payments that the UK has ever made to the EU.
    Whilst some of the utterances of Cameron, Osborne et al were (by design) foolishly alarmist, the “no deal” exit that Johnson appears to seek (red lines added, deadlines imposed) risks being very bleak indeed, with plenty of unforseen consequences – not least of which will be the wrath of Brexiteers when it dawns on them that they have been royally had.
    The Guardian has an article suggesting that Johnson’s “jumbo trade deal” with the USA will only boost GDP by 0.16% in the most favourable circumstances by the middle of the next decade and could be worth a derisory 0.07% (and, one assumes, all the chlorinated chicken you can eat). When (alas, not if) living standards fall, unemployment rises, Sterling tanks and (to put a floor under it) interest rates and mortgages rise forcing a housing crash on the back of repossessions, there will be a lot of very angry people – perhaps this is the only uniting of the country Brexit is capable of.
    In the last month, Sterling has fallen by 5% – admittedly, after having seen (unexpected) gains in the autumn and until after Johnson’s election. A weak(er) Pound stimies the BoE’s room for manoeuver.
    An “Australian deal” may not be as catastrophic as some imagine, David, but I fear it will be much bleaker than you are anticipating.

    Lastly, the Brexit being delivered is not the Brexit that was promised to win the day. Ulitmately, that will have consequences.

  7. I scanned the UK “Command” document and seem to be missing a Chapter dealing with the rights of human beings – I could only see topics covering trade, property, intellectual rights, etc…???

    :-(

  8. There is an elephant in the room. The USA. Until we know what progress (if any) is made in those trade talks, it is difficult to know where the UK will try to take the EU trade talks.

    As a formula, it is tempting to see these talks as inversions of each other. The more progress the UK makes with the US, the less it is likely to make with the EU.

    The last thing the EU wants is a 51st Singapore on Thames state on its doorstep. And yet, the better things go with the USA the more desperate the EU will be to try and conclude an access deal with the UK for its own Member States, particularly, but not exclusively, Germany.

    Season two’s highpoint is going to be the question of whether the EU is prepared to dilute some of the regulations surrounding the SEM. If they do or if they feel they have to, Johnson and Trump will win season two hands down. The rules of origin are the prime target in Johnson and Trump’s sights!

  9. I would just like to add my name to the very long list of readers who, without venturing even a big toe into the actual debate, nonetheless feel very grateful that DAG is maintaining his keen oversight & keeping us up to the mark. Sincere thanks, David

  10. The EU has one simple principle regarding any and all EU-UK negotiations; protect the internal market, commonly known as the single market. From this principle flows the rest of EU’s decision making.
    The negotiation process will follow the EU’s guidelines (read: the negotiation mandate or ‘the Barnier’s bible’) — or there are no negotiations. There is no other way, never was.
    From the principle of ‘protect the internal market’ arises the legal reality of what is and is not possible to achieve — the EU’s room to maneuver, so to speak, is not much, but this can be no news to anyone, as the EU is not in a habit of re-arranging its treaties to accommodate a third country wish-lists. The UK should know this, having been a member for 47 years.
    The same principle is, also, the reason why the EU will insist on a single and efficient oversight mechanism to deal with any issue arising regarding UK’s access to the EU’s internal market.
    In other words, the deal will make certain that the UK plays by the set rules — or its access will vanish faster than you can say “Brexit”.
    This is all there is to know, when we start binge watching the upcoming Brexit series. Episodes are named after momentous and epic historical events, ie., ‘Triumph of the Blob — when ignorance reigns supreme’, a 2019 Christmas special on the wonders of British democracy, as in, how to win a 80 seat majority with 43,6% of the vote. Followed by ‘Daddy, did the Queen invent Corona-virus to cure Brexiters’. A hilarious comedy take on a single father explaining to his son, that, like everything in the universe, corona virus was made in China — and even God does not know how to cure a Brexiter.
    Season two climax is tentatively named ‘Gridlock’. A touching real life experiment to see how to survive in modern world, if we pretend Calais is, for all intent and purpose, in Australia.
    Season 3 production is on hold. Too many unknown unknowns to know what to know — or not know. It has a working title though. ‘What’s the value of money anyway’.

Leave a Reply

Your email address will not be published. Required fields are marked *

This site uses Akismet to reduce spam. Learn how your comment data is processed.