Category: Brexit

Benjamin the Donkey from Animal Farm, and the limits of political commentary

New Year’s Eve, 2020

Tomorrow Animal Farm and other works by George Orwell come out of copyright in the United Kingdom.

To mark this, and to do something different on this blog on New Year’s Eve, this is a tribute to – and critique – of Benjamin the donkey as a political commentator.

(And, just for the rest of today, the many quotations in this post are ‘fair dealing with a work for the purpose of criticism or review’ under the Copyright etc Act 1988.)

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Benjamin has qualities which would (or should) make him a great political commentator.

First – and this is key:

‘Benjamin could read as well as any pig…’

In Animal Farm, the two key textual reveals to the other other animals are because Benjamin can read as well as any pig:

‘”Fools! Fools!” shouted Benjamin, prancing round them and stamping the earth with his small hoofs. “Fools! Do you not see what is written on the side of that van?”‘

And:

‘[Benjamin] read out to her what was written on the wall. There was nothing there now except a single Commandment. It ran:

ALL ANIMALS ARE EQUAL
BUT SOME ANIMALS ARE MORE EQUAL THAN OTHERS’

Benjamin is capable of understanding, and explaining, anything done by those who have sought and obtained political power – it is not for him obscure or forbidden knowledge.

He is not of the political world, but can understand it as well as those who are powerful.

And so he can see and describe what is actually happening:

‘…Benjamin was watching the movements of the men intently. The two with the hammer and the crowbar were drilling a hole near the base of the windmill. Slowly, and with an air almost of amusement, Benjamin nodded his long muzzle.

‘”I thought so,” he said. “Do you not see what they are doing? In another moment they are going to pack blasting powder into that hole.”‘

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Second, Benjamin is impartial in a hyper-partisan world:

‘Old Benjamin, the donkey, seemed quite unchanged since the Rebellion. […] About the Rebellion and its results he would express no opinion. When asked whether he was not happier now that Jones was gone, he would say only “Donkeys live a long time. None of you has ever seen a dead donkey,” and the others had to be content with this cryptic answer.’

And:

‘The animals formed themselves into two factions under the slogan, “Vote for Snowball and the three-day week” and “Vote for Napoleon and the full manger.” Benjamin was the only animal who did not side with either faction. He refused to believe either that food would become more plentiful or that the windmill would save work. Windmill or no windmill, he said, life would go on as it had always gone on–that is, badly.’

And:

‘Only old Benjamin refused to grow enthusiastic about the windmill, though, as usual, he would utter nothing beyond the cryptic remark that donkeys live a long time.’

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Third, Benjamin has a stock of knowledge and historical perspective:

‘Only old Benjamin professed to remember every detail of his long life and to know that things never had been, nor ever could be much better or much worse–hunger, hardship, and disappointment being, so he said, the unalterable law of life.’

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And Benjamin is (for want of a better word) humane and (privately) kind:

‘Nevertheless, without openly admitting it, he was devoted to Boxer; the two of them usually spent their Sundays together in the small paddock beyond the orchard, grazing side by side and never speaking.’

And:

‘…Benjamin urged Boxer to work less hard’.

And:

‘…Benjamin warned [Boxer] to take care of his health’.

And:

‘…Benjamin [laid] down at Boxer’s side, and, without speaking, kept the flies off him with his long tail.’ 

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So: what more could you want in a political commentator?

Benjamin is worldly yet impartial, and he has historical perspective and a stock of knowledge, and he also is (at least privately) kindly.

But Benjamin fails as a commentator.

His impartiality has hardened into quietism, and he leaves everything too late.

Of course, Benjamin does not actively collaborate with those with political power:

‘He did his work in the same slow obstinate way as he had done it in Jones’s time, never shirking and never volunteering for extra work either.’

But he also does nothing when it would have made a difference to stop abuses of power.

For example, the constant re-wordings of the commandments which culminate in the addition of ‘BUT SOME ANIMALS ARE MORE EQUAL THAN OTHERS’ is left to others to read who do not have the donkey’s understanding.

And when Boxer is taken to the glue factory, Benjamin’s late realisation is futile.

His private kindness made no difference to this very public and brutal act of power.

Had Benjamin been engaged from the beginning of the rebellion, the pigs may have got away with less and Boxer would have enjoyed a retirement.

(That is, if Benjamin had not – ahem – disappeared.)

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T. S. Eliot famously turned-down Animal Farm for publication, writing to George Orwell that all the farm really needed were ‘more public-spirited pigs’.

That is, better conduct and more self-restraint by those who achieve and exercise political power – the essence of Toryism.

But left to themselves, those who achieve and exercise political power will tend to abuse that power – and that is why wiser people than Eliot also want checks and balances.

And one check and balance is an independent media.

A media which is worldly, impartial, and has historical perspective and a stock of knowledge, and which also – if not kindly – is certainly not cruel.

But as the example of Benjamin shows, even these wonderful qualities are not enough, if not constantly applied.

What was perhaps needed on the farm was not ‘more public-spirited pigs’ but a more public-spirited donkey.

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Yet – this is a question which Orwell does not really address – the animals would also need to have cared if the donkey had told them what was happening in time.

For the experience of Brexit and Trump indicates that even if Benjamin had been more vigilant about abuses of power, many of the animals may not have cared.

‘The animals crowded round the van. “Good-bye, Boxer!” they chorused, “good-bye!”‘

So commentary may not be enough: there is limited point to explaining about lies and abuses of power if people do not care that they are being lied to and power is being abused.

And that is the fundamental challenge of politics in the age of the promised windmills of Trump and Brexit.

But providing commentary is a public good in itself, even if it is not heeded.

And so this blog will carry on into the new year as the work of a public-spirited donkey.

Happy new year to all my readers and followers.

*****

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The Bill implementing the Trade and Cooperation Agreement is an exercise in the Government taking power from Parliament

30th December 2020

Today Parliament will be expected to pass, in one single day, the legislation implementing the Trade and Cooperation Agreement into domestic law.

This situation is exceptional and unsatisfactory.

The bill is currently only available in draft form, on the government’s own website.

As you can see, this means that ‘DRAFT’ is inscribed on each page with large unfriendly letters.

And we are having to use this version, as (at the time of writing) the European Union (Future Relationship) Bill is not even available parliament’s  ‘Bills before Parliament’ site.

The draft bill is complex and deals with several specific technical issues, such as criminal records, security, non-food product safety, tax and haulage, as well as general implementation provisions.

Each of these specific technical issues would warrant a bill, taking months to go through the normal parliamentary process.

But instead they will be whizzed and banged through in a single day, with no real scrutiny, as the attention of parliamentarians will (understandably) be focused on the general implementation provisions, which are in Part 3 of the draft bill.

And part 3 needs this attention, as it contains some remarkable provisions.

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Clause 29 of the draft bill provides for a broad deeming provision.

(Note a ‘clause’ becomes a ‘section’ when a ‘Bill’ becomes enacted as an ‘Act’.)

The intended effect of this clause is that all the laws of the United Kingdom are to be read in accordance with, or modified to give effect to, the Trade and Cooperation Agreement.

And not just statutes – the definition of ‘domestic law’ covers all law – private law (for example, contracts and torts) as well as public law (for example, legislation on tax or criminal offences).

It is an ingenious provision – a wave of a legal wand to recast all domestic law in whatever form in accordance with the agreement.

But it also an extremely uncertain provision: its consequences on each and every provision of the laws of England and Wales, of Northern Ireland, of Scotland, and on those provisions that cover the whole of the United Kingdom, cannot be known.

And it takes all those legal consequences out of the hands of parliament.

This clause means that whatever is agreed directly between government ministers and Brussels modifies all domestic law automatically, without any parliamentary involvement. 

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And then we come to clause 31.

This provision will empower ministers (or the devolved authorities, where applicable) to make regulations with the same effect as if those regulations were themselves acts of parliament.

In other words: they can amend laws and repeal (or abolish) laws, with only nominal parliamentary involvement.

There are some exceptions (under clause 31(4)), but even with those exceptions, this is an extraordinarily wide power for the executive to legislate at will.

These clauses are called ‘Henry VIII’ clauses and they are as notorious among lawyers as that king is notorious in history.

Again, this means that parliament (and presumably the devolved assemblies, where applicable) will be bypassed, and what is agreed between Whitehall and Brussels will be imposed without any further parliamentary scrutiny.

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There is more.

Buried in paragraph 14(2) of schedule 5 of the draft bill (the legislative equivalent of being positioned in the bottom of a locked filing cabinet stuck in a disused lavatory with a sign on the door saying ‘Beware of the Leopard’) is a provision that means that ministers do not even have to go through the motions of putting regulations through parliament first.

Parliament would then get to vote on the provisions afterwards.

This is similar to the regulations which the government has been routinely using during the pandemic where often there has actually been no genuine urgency, but the government has found it convenient to legislate by decree anyway.

Perhaps there is a case that with the 1st January 2021 deadline approaching for the end of the Brexit transition period, this urgent power to legislate by decree is necessary.

But before such a broad statutory power is granted to the government there should be anxious scrutiny of the legislature.

Not rushed through in a single parliamentary day.

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There are many more aspects of this draft bill which need careful examination before passing into law.

And, of course, this draft bill in turn implements a 1400-page agreement – and this is the only real chance that parliament will get to scrutinise that agreement before it takes effect.

You would not know from this draft bill that the supporters of Brexit campaigned on the basis of the United Kingdom parliament ‘taking back control’.

Nothing in this bill shows that the Westminster parliament has ‘taken back control’ from Brussels.

This draft bill instead shows that Whitehall – that is, ministers and their departments – has taken control of imposing on the United Kingdom what it agrees with Brussels.

And presumably that was not what Brexit was supposed to be about.

*****

This law and policy blog provides a daily post commenting on and contextualising topical law and policy matters – each post is published at about 9.30am UK time.

Each post takes time, effort, and opportunity cost.

If you value the free-to-read and independent legal and policy commentary both at this blog and at my Twitter account please do support through the Paypal box above.

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This blog enjoys a high standard of comments, many of which are better and more interesting than the posts.

Comments are welcome, but they are pre-moderated.

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Six reasons why those who want to shift the relationship between the United Kingdom and the European Union need to now think in five-year cycles

29th December 2020

Imagine you are in some remote rural area where the bus or train only comes on a given day at a given time.

This is what it will be like for those who want to substantially change the relationship between the United Kingdom and the European Union once the trade and cooperation agreement is in place.

But instead of the the weekly or monthly bus or train, this cycle will be every five years.

And if that opportunity is missed, then it will be another five years before the opportunity comes around again.

This is because of one major reason – and also (perhaps) because of five other reasons.

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The first reason, as this blog set out yesterday, is that the European Union itself works in five-year cycles.

Each European Commission is appointed for five years and each European Parliament is elected for five years.

The Presidents of the European Council tend to also have five-year terms.

And after each five-year cycle, the European Union project is then (in effect) handed over to a new European Commission and President of the European Council.

It would thereby appear to be no accident that the review cycle for the trade and cooperation agreement is five years.

This means the European Union’s relationship with the United Kingdom will be dealt with in a manner that is convenient to Brussels and not London.

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This leads to the second reason.

The United Kingdom is no longer sufficiently important to disrupt the normal European Union political and policy life-cycle.

This will come as a shock to many in the United Kingdom who are used to demanding time and immediate attention from the European Union.

From the supposed re-negotiation of 2016, through the withdrawal negotiations, to the relationship negotiations, the European Union kept responding to the sound of the clicking fingers of the United Kingdom.

And the European Union had to do this, as the departure of a Member State could not be taken lightly.

But this effortless priority is now over.

Any substantial changes to the new relationship will have to fit in with other matters and be dealt with at what is the natural pace of Brussels.

And, in any case, many in the European Union are bored and tired of Brexit.

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The third reason is that it is only with five-year cycles that the European Union will be able to assess the stability and sustainability of any United Kingdom political and policy position on the European Union.

Even if there were some sudden political shift in favour of the United Kingdom joining, say, a customs union or becoming part of the single market, the European Union would want to see if that was a settled and consensual position.

The European Union is all too aware of the rapid convulsions that the European Union issue can cause to the politics of the United Kingdom.

Remember that in 2015 there was a general election in the United Kingdom where every major party was in favour of membership of the European Union – and three prime ministers and two general elections later, the United Kingdom is no longer a member state.

And 2015 was, well, five years ago.

The European Union has no interest in a substantial shift in its relationship with the United Kingdom which could quickly become undone.

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The fourth reason is also to do with the United Kingdom.

Will there even be a United Kingdom of Great Britain and Northern Ireland in five or ten years’ time?

As this blog has previously averred, two natural consequences of Brexit are a united Ireland and an independent Scotland.

These are not things which will necessarily, still less automatically, happen.

But they are foreseeable.

And so five-year cycles will allow the European Union to see not only how the politics and policies of the United Kingdom settle down, but also how the United Kingdom itself and its constituent parts settle down.

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And this structural point goes both ways – for the fifth reason is that the European Union itself in five and ten years’ time may itself be a different creature to what it currently is.

Freed from the reluctance and relentless scepticism of the United Kingdom, the European Union can now go in a different direction.

And so not only will the European Union want to see what the United Kingdom is like in five and ten years’ time, it will want to see what its own position will be like.

It will not be re-fighting the issues of 2016 or 2020 in its engagement with the United Kingdom, like some geo-political historical re-enactment society.

Regardless of what changes (if any) happen within and to the United Kingdom, the European Union will be thinking in terms of what suits it in 2026, or 2031, or whenever.

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The final reason is beyond the power of both the United Kingdom and the European Union.

In 2026, and in 2031, and so on, the world itself may be very different from now.

Many things may be different: a post-Trump (or revived Trump) United States, a post-Putin (or retained Putin) Russia, China becoming (or not becoming) the world’s largest economy, ongoing pandemics and climate change, and so on.

It may then suit the European Union and the United Kingdom to huddle together – or to huddle apart.

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In setting all this out, I do not wish to give false hope to Remainers/Rejoiners that if with sufficient focus and energy, they could shove the United Kingdom back towards the European Union in 2026 or 2031 or so on.

Indeed, the five-year cycle could even lead to greater divergence.

(And there is a non-trivial chance the United Kingdom may terminate the relationship agreement with one year’s notice.)

But if there is to be a closer relationship – or even an eventual application to rejoin – the United Kingdom will have to have regard to the five-year cycles of the European Union.

As I mentioned above, the days of snapping fingers for attention are over.

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My own view, for what it is worth, is that I hope the five-year cycle leads to an increasingly solid and sustainable association arrangement between the United Kingdom and the European Union – and that it becomes something that endures perhaps longer than the actual membership.

And I hope that the five-year cycles are used to adjust the relationship appropriately.

(I also support an Ireland united by consent and an independent Scotland and Wales, and these developments will also, in my opinion, be easier with an association agreement between United Kingdom (or just England) and the European Union.)

But these are mere hopes, and they can be dashed or discarded.

What is and will be in place, regardless of hopes (or fears), is that it will not be quick and easy for the United Kingdom – or England – to move substantially towards the European Union, let alone rejoin.

The eventful, exhausting 2016-2021 Brexit five-year cycle is over.

Let us see what future five-year cycles bring.

*****

This law and policy blog provides a daily post commenting on and contextualising topical law and policy matters – each post is published at about 9.30am UK time.

Each post takes time, effort, and opportunity cost.

If you value the free-to-read and independent legal and policy commentary both at this blog and at my Twitter account please do support through the Paypal box above.

Or become a Patreon subscriber.

You can also subscribe to this blog at the subscription box above (on an internet browser) or on a pulldown list (on mobile).

*****

This blog enjoys a high standard of comments, many of which are better and more interesting than the posts.

Comments are welcome, but they are pre-moderated.

Comments will not be published if irksome.

This agreement is not the end of Brexit, it is a five year political truce

28th December 2020

More is now becoming apparent of the nature of the draft trade and cooperation agreement between the European Union and the United Kingdom.

This post looks at two fundamental issues: structure and duration.

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In regard of structure, let us start with what is expressly stated as the ‘purpose’ of the agreement:

‘This Agreement establishes the basis for a broad relationship between the Parties […]’

The word ‘broad’ is significant, especially when one looks at the following provision.

This provision expressly provides that it is envisaged that there will be ‘other’ agreements that will both ‘supplement’ this agreement but will be subject to this agreement.

The key word here, at the end of the numbered paragraph, is that this agreement is a ‘framework’.

As such it is not, and is not intended to be, a once-and-for-all agreement, setting out all the terms of the post-Brexit relationship between the European Union and the United Kingdom.

This will not surprise many (no doubt they are already scrolling down to type ‘why is this a surprise?’ in the comment box below) but it is significant – and consequential – and needs spelling out.

This is explicitly not an agreement which shows that the United Kingdom has, in one single bound, ‘taken back control’ and become free.

The agreement instead shows, even in its first two substantive provisions, that Brexit will be an ongoing negotiation, maybe one without end.

All this agreement does – expressly and openly – is provide a ‘broad…framework’.

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Once this is understood then other parts of the agreement make sense.

For example, there are numerous specialised trade committees set up for various sectors.

Loads of talking shops.

But some have rightly noted that some sectors do not have specialised trade committees.

The specialised trade committees which have been set up, however, oversee certain parts of the agreement.

So, if a sector is not the subject of other provisions in the agreement, then there will not be a specialised trade committee to oversee that sector.

(This is akin to, say, parliamentary select committees that are set up to mirror government departments.)

The reason, therefore, there is not a financial services specialised trade committee under this agreement is that there are no substantive provisions under this agreement on financial services (yet) for that committee to monitor.

If and when there is a ‘supplementary’ agreement on financial services, for example, there will be a corresponding new specialised trade committee.

That new committees can be formed is expressly provided for in the powers of the partnership council, that can ‘by decision, establish Trade Specialised Committees and Specialised Committees’.

The agreement, therefore, envisages both new supplementary agreements and new specialised committees.

(And these envisaged potential extensions are elsewhere in this agreement.)

In other words, this agreement is intended and designed to be a dynamic arrangement between the parties, where areas of trade and cooperation can change and indeed become closer (or less close) over time.

This means one consequence of Brexit is that the United Kingdom has swapped the dynamic treaties of the European Union which envisages things becoming closer (or sometimes less close) over time for a new ‘broad…framework’ dynamic agreement that also envisages things becoming closer (or sometimes less close) over time.

And this is part of the design, as the examples above show.

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There is more.

Not only is the agreement envisaged and designed to be dynamic over time, it will also be subject to five-yearly reviews.

So slow, incremental changes within five periods will be complemented by possible far more substantive shifts every five years.

This again is part of the design.

Buried on page 402 of the agreement:

“The Parties shall jointly review the implementation of this Agreement and supplementing agreements and any matters related thereto five years after the entry into force of this Agreement and every five years thereafter.”

And once you realise there is this five year cycle, you notice it elsewhere in the agreement.

There are numerous references to ‘2026’ and ‘five years’.

And as John Lichfield has pointed out in this significant and informative thread, 2026 is also a significant date on the fisheries question:

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Five year periods, of course, accord neatly with the five year cycles of the European Union.

The European Commission is appointed for a five year term, for example, and the European Parliament is elected every five years.

Each President of the European Council also tends to serve a five year term.

So this five year cycle of reviews is convenient for (and is no doubt designed to be convenient for) the European Union.

Each Commission, each European Parliament, and each President of the European Council, will have its turn to shape the relationship with the United Kingdom, before handing it onto the next.

The five year cycle also may suit the United Kingdom.

The Fixed-term Parliaments Act provides that each parliament should last five years – though, of course, this statute is set for repeal.

But, in any case, the politics of the United Kingdom generally tends to follow cycles of four to five years.

And if Fixed-term Parliaments Act stays in place, the next general election is in 2024, just in time for the run-up to the next review of the agreement.

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The trade and cooperation agreement is expressly and openly designed to have both small changes within five year cycles and potentially big changes every five years.

As such, this agreement is not the end of Brexit.

The agreement is not (and is not intended to be) a once-and-for-all settlement of the relationship between the European Union and the United Kingdom.

It is instead – deliberately – a dynamic agreement, capable of enabling closer union (or less close union) over time.

The five year cycles accord exactly with the convenience of the terms of the European Union and also roughly match the political cycle of the United Kingdom.

This agreement does not bring Brexit to an end, it is instead a five year political truce.

*****

This law and policy blog provides a daily post commenting on and contextualising topical law and policy matters – each post is published at about 9.30am UK time.

Each post takes time, effort, and opportunity cost.

If you value the free-to-read and independent legal and policy commentary both at this blog and at my Twitter account please do support through the Paypal box above.

Or become a Patreon subscriber.

You can also subscribe to this blog at the subscription box above (on an internet browser) or on a pulldown list (on mobile).

*****

This blog enjoys a high standard of comments, many of which are better and more interesting than the posts.

Comments are welcome, but they are pre-moderated.

Comments will not be published if irksome.

 

 

 

The United Kingdom-European Union trade agreement – the early emerging picture

27th December 2020

The draft trade agreement between the European Union and the United Kingdom and related documents were published yesterday.

As this blog has previously averred, there is not sufficient time for this agreement and related documents to be properly analysed and scrutinised before the Brexit transition period ends automatically on 31st December 2020.

All one can really do in the time available is read through the documents, spot patterns and complications, and notice the more obvious deficiencies, discrepancies and omissions.

Proper analysis and scrutiny of such a large legal instrument is not and cannot be a linear, read-through exercise.

It is instead complex: comparing provisions within the agreement and related documents, then matching the provisions with external legal instruments, and – most importantly – practically stress-testing the proposed provisions against reality.

As this blog has previously said, legal codes are akin to computer coding – and so quick reviews before deployment will not spot the inevitable bugs.

All that said, there are already some emerging shapes and overall impressions.

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The best starting point is the European Union page, which has links to a number of relevant documents.

You will see there that there is not just one draft agreement, for trade – there are also a security of information agreement and a civil nuclear Agreement.

There is also a 26-page document of ‘declarations’.

Also worth looking at is this 2-page table of consequences of the United Kingdom’s departure and the benefits of the agreement.

The corresponding page of the United Kingdom government has fewer resources but there is this 34-page explainer which summarises at a high-level the ‘core’ provisions of the agreement.

(Though without the contents pages and judicious use of spacing, numbering and tabes, that explainer would have significantly fewer pages.)

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A number of commentators and experts have also shared their early views and impressions.

The excellent team at the Institute of Government have provided initial analyses of the provisions at their site – see the links on the left of that landing page for their looks at individual areas.

Professor Steve Peers – author of various leading texts on European Union law – spent Christmas Day and Boxing Day putting together an explanatory thread on Twitter.

The thread, like the rest of his social media output, is an astonishing work of immediate legal commentary and is a boon for the public understanding of law.

There was other outstanding commentary.

Trade expert Dr Anna Jerzewska: 

Services expert Nicole Sykes:

Former United Kingdom senior trade official David Henig did a post and a thread:

Another trade expert Sam Lowe observed that the trade side of the agreement was thin and – but for politics and choreography – could have been completed more quickly:

John Lichfield provided an informative thread on fisheries:

And extradition lawyer Edward Grange had a similarly informative ‘quick look’:

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In my own area of particular interest – institutions, governance and dispute resolution – my own very preliminary tweet got widely shared:

https://twitter.com/davidallengreen/status/1342749971142029312

And it was even picked up by the Daily Express, which – in an extraordinary and unexpected turn of events – described this blog as an ‘influential blog’.

Anton Spisak looked at this far more closely and he compiled this helpful diagram:

This elaborate scheme was correctly described by Professor Phil Syrpis as follows:

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All this is only ‘first glance’ stuff – a Boxing Day walk-through a long and complicated legal text.

But what is already plain is that what the United Kingdom government is boasting and spinning about the agreement may not be accurate.

Remember, however, that the old saying ‘the devil is in the detail’ is often the opposite of the truth.

Devils lurk and thrive in generalities, mismatched expectations, mutual misunderstandings, and grand sweeping statements.

It is these that bedevil us.

Details – that is precise language – flush out these devils.

And as we understand more about what has actually been agreed in this ‘deal’ – and what was not agreed – we will no doubt see many devils flush past.

*****

This law and policy blog provides a daily post commenting on and contextualising topical law and policy matters – each post is published at about 9.30am UK time.

Each post takes time, effort, and opportunity cost.

If you value the free-to-read and independent legal and policy commentary both at this blog and at my Twitter account please do support through the Paypal box above.

Or become a Patreon subscriber.

You can also subscribe to this blog at the subscription box above (on an internet browser) or on a pulldown list (on mobile).

*****

This blog enjoys a high standard of comments, many of which are better and more interesting than the posts.

Comments are welcome, but they are pre-moderated.

Comments will not be published if irksome.

The EU-UK trade agreement – and the tale of two tables

Boxing Day, 2020

The post-Brexit agreement on trade and other matters is, it seems, in final draft form – although it has not yet been officially published.

What seems to be a copy of the final draft is here.

Proper analysis of the agreement will necessarily take time – though an initial glance showed about ten pages devoted to creating dozens and dozens of joint European Union and United Kingdom talking shops – committees, assemblies, talking shops, and so on.

This indicates that Brexit will in fact be a negotiation without end.

So while we digest this Christmas feast, let us look at a couple of Christmas cards.

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The first is a ‘scorecard’ made public on Christmas Eve.

This purports to show a sequence of heady United Kingdom ‘wins’.

It is too soon to tell whether this document accords with the actual draft agreement, but even on its own terms it is confused and unconvincing.

For example, if we look at public procurement, where the United Kingdom had no proposals, the outcome is dubbed a ‘mutual compromise’.

But on legal services, where the European Union in turn had no position, the outcome is dubbed a United Kingdom ‘win’.Some topics are artificially broken up, perhaps to claim more United Kingdom ‘wins’ (for example, Financial Services), and other ‘wins’ not substantiated by accompanying text (especially Law Enforcement).

Such inconsistencies and distortions mean that, even on the face of it, the ‘scorecard’ is not a reliable document to form a view on the draft agreement either for or against.

The table has been created by the United Kingdom government (or a supporter of government policy) as propaganda, not analysis.

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The United Kingdom government, however, is not alone in presenting a table as a spinning exercise.

Again, it is too soon to tell whether this table is accurate in comparison with the actual agreement, though there are no obvious internal inconsistencies in the document.

And maybe significantly, this second table is not framed as ‘wins’ but is instead about losses – the scope and areas of coverage.

What is outside the agreement, as opposed to what was included.

Looking down the ticks and crosses indicate what the United Kingdom might be losing as opposed to ‘winning’.

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Just as the number of talking shops to be created under the agreement show that Brexit will now become a negotiation without end, the existence of these two tables indicate that the merits of Brexit will also be an ongoing argument.

Brexit will be a contested subject for at least a generation.

This trade agreement may be bringing part of the Brexit story to a formal conclusion, but it certainly does not bring Brexit to an end.

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POSTSCRIPT

The United Kingdom government has now published the final draft agreement and a 34 page summary – see here.

And the European Union has published its suite of documents here.

 

*****

This law and policy blog provides a daily post commenting on and contextualising topical law and policy matters – each post is published at about 9.30am UK time.

Each post takes time, effort, and opportunity cost.

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*****

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Scenes from Brexit past – so as to keep the impending Deal ‘triumph’ in perspective

Christmas  Eve, 2020

Today political and media supporters are hailing as a triumph a Brexit agreement few of whom have read and many will probably one day disown.

It is now a familiar ritual.

And as Christmas Eve is a time for ghost stories, here are some scenes from Brexit past.

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First let us go before even the referendum.

It is late 2015, and the then prime minister David Cameron and a team of negotiators are seeking a ‘deal’ – a supposed re-negotiation that would be the basis for victory in a referendum expected to take place in 2016.

But the re-negotiation was a failure – though that too hailed by some at the time – and was hardly mentioned in the referendum campaign.

And – as this blog has set out previously – the wrong lessons were drawn from that deal by Brexiters, who believed demanding more things loudly was a deft negotiation technique with the European Union.

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We now go to the days after the referendum result, in the summer of 2016.

The governing Conservative party were in the midst of a leadership election – and the winning candidate asserted that ‘Brexit means Brexit’.

The European Union were, around the same time, putting in place negotiation priorities and strategies that would mean that they were ready to start negotiating by the end of that year.

The United Kingdom, in contrast, had no plans or even articulated idea of what it wanted out of Brexit when that new prime minister made the departure notification in March 2017.

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We now move on to the middle of the following year, where Brexit secretary David Davis promised ‘the row of the summer’ over the sequencing of the Brexit negotiations.

The ‘row’ lasted only days, as a far better prepared European Union got its way completely on sequencing.

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And now we go to December 2017 where the European Union accepts that there has been ‘sufficient progress’ in the talks and enters into a ‘joint declaration’ with the United Kingdom.

This joint declaration contains delicate but significant wording on the issue of the border in Ireland – wording which many political and media supporters of the government do not appreciate at the time or do not take seriously.

That joint declaration is hailed by those supporters anyway.

Brexit is getting done.

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We finally move on to December last year, where the Conservative party win a general election on the basis of an ‘oven ready’ withdrawal deal negotiated by the current prime minister.

That deal was, of course, hailed by political and media supporters of the government.

But months later, the United Kingdom government resorts to proposing legislation that would empower ministers to break that same ‘oven ready’ deal.

That legislation was hailed by political and media supporters of the government.

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There are many more such scenes from Brexit – you may now be thinking of others.

Some of these ghostly memories may be forgotten by the cheerleaders of the government.

But they have certainly not been forgotten by the European Union.

That is why the deal is likely to have strict provisions on governance, as the United Kingdom has consistently spooked the European Union in the conduct of these negotiations.

So when the deal is finally unwrapped its contents may horrify the political and media supporters of the government who are currently hailing it more than any ghost story.

And that may be a scene of Brexit yet to come.

*****

This law and policy blog provides a daily post commenting on and contextualising topical law and policy matters – each post is published at about 9.30am UK time.

Each post takes time, effort, and opportunity cost.

If you value the free-to-read and independent legal and policy commentary both at this blog and at my Twitter account please do support through the Paypal box above.

Or become a Patreon subscriber.

You can also subscribe to this blog at the subscription box above (on an internet browser) or on a pulldown list (on mobile).

*****

This blog enjoys a high standard of comments, many of which are better and more interesting than the posts.

Comments are welcome, but they are pre-moderated.

Comments will not be published if irksome.

Why a two thousand page EU-UK relationship agreement cannot be properly scrutinised between now and 31 December 2020

23rd December 2020

A week tomorrow, on 31st December 2020, the Brexit transition period comes to an end.

This transition period has artificially kept in place most of the substance of membership of the European Union for the United Kingdom (other than representation on various institutions) even though as a matter of law the United Kingdom departed the European Union on 31st January 2020.

There is still no agreement in place for the future relationship.

There is still, it seems, not even an agreed draft text in final form.

And there certainly has not been ratification by the European Parliament.

(In the United Kingdom, parliament does not need to ratify an international agreement though parliament may need to legislate so as to implement what has been agreed.)

According to one well-connected and reliable commentator the current version of the agreement is two thousand pages long.

This is not a surprise, given the scope of what needs to be addressed in the agreement – the new ongoing relationship of the United Kingdom and the European Union on trade and other matters.

There are also news reports that the negotiators have missed the deadline for any agreement to be voted on by the European Parliament before the end of the year.

But even if somehow the European Parliament can reconvene before end of the year, there is not enough time for anyone other than those directly connected with the negotiation (and so will be familiar with the text) to scrutinise the agreement.

Today is a Wednesday – Christmas Eve and Christmas Day block out tomorrow and Friday, and then it’s the the weekend, and then it is the Boxing Day holiday on Monday.

That leaves only three full days to do everything.

The situation is ludicrous.

*

A legal instrument is a complex thing.

Legal texts are not linear documents – you do not start reading on page one and go through to the end, and then stop.

A legal text is more akin to a computer program – law codes and computer coding are remarkably similar things.

Each provision – indeed, each word – in a legal instrument has a purpose.

Each provision has to, in turn, cohere with all the other provisions elsewhere in the text – so Article 45, for example, needs to fit with Article 54, and so on.

In an international agreement such as this relationship treaty, each provision also has to cohere with hundreds – perhaps thousands – of other provisions in other legal instruments.

(This is especially true of an agreement entered into by the European Union, which is a creature of law.)

Each provision also has to be capable of working in practice – and so needs to be assessed from a practical as well as a legal(istic) perspective.

And – perhaps most importantly – any significant legal instrument needs to be examined and approved by political representatives.

This last requirement is particularly important when the agreement will have huge consequences for people and for businesses.

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And there is something else.

The United Kingdom government has now twice – in a rush – signed up to something so as to ‘get Brexit done’ and then regretted it.

The first was the ‘joint declaration’ in withdrawal agreement negotiations, and the second was the withdrawal agreement itself – which the United Kingdom government sought to legislate so that it could break the law.

This means that nobody can have any real confidence that government ministers have any proper understanding of what they are signing up to.

If any agreement needs proper scrutiny, this one does.

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Charles Dickens in A Christmas Carol makes it so that all three visitations are packed into a single evening.

But not even an imagination as vivid as that of Dickens could make it plausible that a two thousand page agreement of such immense importance could be properly examined as a matter of law and for practicality, and to receive proper political scrutiny, in the few days available before the end of the year.

Brace, brace.

*****

This law and policy blog provides a daily post commenting on and contextualising topical law and policy matters – each post is published at about 9.30am UK time.

Each post takes time, effort, and opportunity cost.

If you value the free-to-read and independent legal and policy commentary both at this blog and at my Twitter account please do support through the Paypal box above.

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*****

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What if? What if? What if? – three counterfactuals about Brexit, and how they may have not turned out as Remainers would have liked

22nd December 2020

As the United Kingdom is now fewer than ten days away from the end of the Brexit transition period, and there is still no agreement in place, it is tempting to ask ‘what if things had been different?’ and to ponder whether if only [x] or [y] had happened everything would be ok.

So here are three counterfactuals, as thought experiments.

(Counterfactuals can be instructive, as long as you do not take them too seriously.)

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The first counterfactual is about the 2016 referendum.

What if there had not been a referendum, or if Remain had won the referendum?

Surely then the last few years would have been different?

Well.

As the then prime minister and the Conservatives had won the 2015 general election – that party’s first outright victory since 1992 – with the manifesto commitment to hold an ‘in/out’ referendum, not having a referendum would have had a political consequence.

And that consequence would likely to have been a continued rise in support for UKIP – in local elections and the European Parliament election –  resulting no doubt in a strong showing at the general election set for 2020 under the Fixed-term Parliament Act.

The matter of Brexit may not have gone away.

Similarly a narrow Remain victory – say, ahem, 52:48 – also would not have disposed of the issue, with Leavers then seeing that only one more heave was necessary for Brexit to happen.

By 2015-16, it is difficult to see that anything other than an emphatic Remain victory in a referendum ridding domestic politics of significant demands for Brexit.

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The second counterfactual is about the manner of departure.

The referendum result provided a mandate for the United Kingdom to depart the European Union.

But the referendum result, by itself, said nothing directly about the means and timing of the departure.

So it would have been open to a government to take its time, and to put in place a cross-party and thought-through plan, taking full and serious account of the immensity and complexity of Brexit.

Instead, however, we got Theresa May and then Boris Johnson wrongly treating Brexit as if it could be done easily and quickly, and driving it through on a highly partisan basis.

But – and here Leavers have a point – a Brexit delayed was likely to mean that Brexit would never happen.

And so unless Brexit was done briskly those opposed to Brexit would have attempted to subvert the exercise, regardless of the referendum mandate.

If a government had been rational and diligent in its planning for Brexit this, however, would have led to increasing backbench, Ukip and media pressure to ‘get Brexit done’.

And so unless Brexit was done on a cross-party basis – perhaps with a national government – it is difficult to see how long any prime minister who sought to avoid a botched Brexit would have lasted.

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The third counterfactual brings us to the current predicament.

What if there had been an extension to the transition period of one or two years?

This blog yesterday set out how that extension did not happen, and this is why the United Kingdom is now dealing with both a pandemic and the end of the transition period at the same time.

No sensible person would disagree that an extension should have been sought and secured, if only in view of the pandemic.

But.

Does anyone seriously think that an extra year or two years would have resulted in the United Kingdom government actually deciding what it wanted out of Brexit?

Would the next year or two be any different to the last four years?

If there had been extensions to the ends of 2021 and 2022, we would then be in the same confused state as we are now – the only possible grace would be there not being a concurrent pandemic.

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My own view is that the counterfactual with the most force is ‘what if’ any government of the United Kingdom – or the Conservative or Labour parties – had made a positive case for membership  from the 1980s onwards?

Instead we had opt-out after opt-out, with both those parties competing with each other to boast of how the United Kingdom was apart from the European Union.

And the print media in turn both encouraged and fed off this political antipathy.

So by 2015-16 it was difficult to see how the Brexit issue would go well for Remainers, even if certain decisions after 2015 had been taken differently.

Only a counterfactual which posits a different political context for the Brexit issue by 2015 seems to me to be plausible way of showing how Brexit could have been avoided.

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Another Brexit pundit once wrote about the various possible branches of history to do with Brexit.

That pundit, despite their wrongness on other issues, had a point.

There was no inevitability about any stage of the Brexit story.

Things could have turned out differently.

But there is also no reason to think they necessarily have turned out any better.

*****

This law and policy blog provides a daily post commenting on and contextualising topical law and policy matters – each post is published at about 9.30am UK time.

Each post takes time, effort, and opportunity cost.

If you value the free-to-read and independent legal and policy commentary both at this blog and at my Twitter account please do support through the Paypal box above.

Or become a Patreon subscriber.

You can also subscribe to this blog at the subscription box above (on an internet browser) or on a pulldown list (on mobile).

*****

Comments are welcome, but they are pre-moderated.

Comments will not be published if irksome.

 

How a government capable of ‘cancelling Christmas’ did not extend the Brexit transition period – or why populism keeps prevailing over prudence

Winter Solstice, 2020

How did it come to pass that a government capable of ‘cancelling Christmas’ did not extend the Brexit transition period,?

Why is the United Kingdom having to deal simultaneously with the effects of both a pandemic and the departure from the European Union?

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The Brexit withdrawal agreement provided for a transition period, where the United Kingdom remained part of the European Union in substance if not in legal from (though not part of the law and policy making institutions).

Article 126 of that exit agreement provided that this extension period would end on 31 December 2020.

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The exit agreement also provided that the transition period could be extended – either by one or even two years.

This was a prudent provision –  just in case something happened which meant the brisk ‘let’s get Brexit done’ timetable was not possible because of some significant development – well, like a worldwide pandemic.

Yet 1st July 2020 came and went with no extension to the transition period.

https://twitter.com/davidallengreen/status/1278101059119075332

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This deadline for putting in place an extension was not a mere omission – the sort of thing a busy government may not have noticed in the rush of events.

The  failure to put in place the extension was a deliberate decision of the United Kingdom.

On 12 June 2020, the cabinet minister responsible for negotiations with the European Union announced proudly:

‘We have informed the EU today that we will not extend the Transition Period. The moment for extension has now passed.’

Had he perhaps not realised there was a pandemic on at the time?

Remarkably, the following sentence of the minister’s statement expressly stated that the decision not to extend was in view of the pandemic:

‘At the end of this year we will control our own laws and borders which is why we are able to take the sovereign decision to introduce arrangements in a way that gives businesses impacted by coronavirus time to adjust.’

The United Kingdom government promoted the decision not to extend as a news story.

The deadline was even the topic of direct discussion between the prime minister and the presidents of the European Council and the European Commission on 15 June 2020:

‘The Parties noted the UK’s decision not to request any extension to the transition period. The transition period will therefore end on 31 December 2020, in line with the provisions of the Withdrawal Agreement.’

The United Kingdom government knew the extension deadline was about to pass, and the government decided deliberately to not have an extension with full awareness (and explicit mention) of the ongoing pandemic.

‘Getting Brexit done’ was more important.

Populism prevailed over prudence.

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This option to extend the transition period was the only way to do so that was written into the exit agreement.

This means that, on the face of it, there is no way there can be an agreement now to extend the transition period.

The opportunity to extend the agreement would appear to have come and gone.

That said, there may be other ways of an extension – as set out by Georgina Wright and others in this report by the estimable Institute for Government.

And few legal feats are beyond the wits of clever European Union and United Kingdom government lawyers in a crisis.

But such an alternative approach to extension would not be easy nor  can it be instant – it would be an elaborate patch and workaround.

For such an extension to put in place now – ten days before the end of the transition period, with the Christmas holidays and a weekend in the middle – would require extraordinary political goodwill and legal ingenuity.

And all to have the same effect as the opportunity squandered by the government in June 2020.

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The decision to ‘cancel Christmas’ was, as this blog set out yesterday, not one any government would have wanted to make.

The fundamental mistake of this government was not to prepare people for the possibility – indeed probability – of this decision.

Days before the decision was made, the prime minister was loudly deriding the leader of the opposition on this very point.

Just click  below and watch and listen.

(Alongside this banality, the Secretary  of State for Education was also threatening a London council with a high court mandatory injunction so as to keep schools open.)

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Had the prime minister and others been acting responsibly, and in the public interest, and given it appears that the government had known about the new coronavirus variant for some time, there should not have been derision of the opposition for the possibility of ‘cancelling Christmas’.

A prime minister and government acting responsibly, and in the public interest, would have been explaining that the public and businesses had to brace themselves for the possibility – indeed probability – of such restrictions and to prepare accordingly.

But the prime minister went for easy claps and cheers instead.

Again, populism prevailed over prudence.

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Yesterday, this story was published by the government-supporting media.

The ugly truth, however, is that every single significant error in Brexit and with coronavirus has been because of the UK government ‘playing to its domestic audience’.

Every single one.

*****

This law and policy blog provides a daily post commenting on and contextualising topical law and policy matters – each post is published at about 9.30am UK time.

Each post takes time, effort, and opportunity cost.

If you value the free-to-read and independent legal and policy commentary both at this blog and at my Twitter account please do support through the Paypal box above.

Or become a Patreon subscriber.

You can also subscribe to this blog at the subscription box above (on an internet browser) or on a pulldown list (on mobile).

*****

Comments are welcome, but they are pre-moderated.

Comments will not be published if irksome.