Category: European Union Law and Policy

Why the road to Brexit began at Maastricht

7th February 2022

Today is the anniversary of the Maastricht treaty:

And so I tweeted the following:

https://twitter.com/davidallengreen/status/1490611449621884932

Being Twitter, the consequence of such a tweet was, of course, that I was told that the proposition was wrong – and that something else was the start of the road to Brexit.

(Click on that tweet to see those alternative views.)

But this post sets out, in brief, why I think that the proposition is sound.

Why the road to Brexit began at Maastricht.

*

Let us go back to “1992”.

No, not the actual year.

But the once-pervasive campaign to get people ready for the completion of the single market.

It was to the date by which the integration put forward by the Single European Act was to be finally in pace.

As far as I can recall there was little political opposition to “1992” in the years leading up to that date.

Indeed the single market was a thing proudly promoted by Margaret Thatcher and practically implemented by another Conservative politician, the European Community commissioner Arthur Cockfield.

But.

Before we ever got to either “1992” or, indeed, 1992, there was already another determined push towards European integration.

This push was what resulted in the European Union – which replaced the European Community – at the treaty of Maastricht.

This movement has a quality different to “1992”.

In the United Kingdom – and elsewhere – this push was contested.

There was little of the general consensus with which “1992” was accepted and promoted.

Indeed, the passage of the legislation in the United Kingdom under John Major was politically controversial.

There is a direct line between the Maastricht rebels of the early 1990s and the post-2015 Brexit movement.

(I know this, as I was research assistant to one Maastricht rebel MP who also was a MP who voted in favour of Brexit.)

Maastricht created an organised reaction that – in my recollection and view, as someone there at the time – had simply not been there before with “1992”.

And the reaction, in turn, of those in favour of integration was, in my view, also polarising.

There was a range of ‘pro-European’ clichés – about not missing trains or not being at top tables, and so on – that did nothing to make a substantive or positive case for integration.

The Maastricht treaty also (purportedly) expanded the ‘competencies’ of the European institutions into areas such as justice and home affairs, and foreign and defence matters, which has not immediately obvious connection with the single market.

And in respect of these competencies, the United Kingdom government (and some other member states) then got into the habit of picking a choosing what areas to opt in or out of.

This half-hearted approach also can be seen in the opt-out from the Eurozone – membership of which many insisted was essential for participating in the single market.

(Though, even now in 2022, not all the countries in the single market are part of the Eurozone.)

So not only did Maastricht create the modern European Union it also enabled the semi-detached policy approach of the United Kingdom and the organised political opposition to further integration – both of which were significant after 2015 for Brexit.

*

My recollection is that at the time I thought United Kingdom membership of the European Union was not sustainable.

I did not think the United Kingdom would ever go full-heartedly into accepting European Union competencies outside the single market, or that the United Kingdom would accept the single currency as being essential for being part of the single market.

I also did not think the approach of ‘pro-Europeans’ would ever win over those who developed their criticisms of the European Union in the Maastricht debates.

My view was (and is) that it would be better – and far more sustainable – for the United Kingdom to have an association agreement with the European Union.

After the early 1990s my views mellowed – and it seemed by 2015 that any departure would not be worth the time and energy.

That a cost-benefit analysis of Brexit would show more costs than benefits.

Others did not – and they kept pushing and pushing until they got a referendum and a departure.

*

Had things stayed with a “1992” single market in a steady state,  Brexit would have been more unlikely.

Of course, there was never going to be such a steady state – the belief in an ‘ever closer union’ was still then a thing.

It is not now really a thing, ironically, as there has not been a major European Union treaty since Lisbon in 2009 – and it looks like there will never be another one.

Indeed, the United Kingdom departed the European Union just as the belief in an ‘ever closer union’ ceased to have any actual political force.

All this said, there was no inevitability that there would one day be Brexit – just as there is no inevitability about the destination of any path.

Had things gone differently in 2015-16, it is conceivable that the United Kingdom would still be a member of the European Union – though the populism of Farage and others would still be pushing for an effect.

But if the path to Brexit can be said to have started anywhere, I think it was Maastricht.

So that is my view, as someone who followed both Maastricht and Brexit closely.

What do you think?

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Brexit policy is, after five years, with the Foreign Office – and this is good

Winter Solstice, 2021

One of the daft things about Brexit – and there have been many – is that the Foreign Office was not made responsible for Brexit policy after the referendum.

This was because, in part, the Foreign Office was distrusted by Brexiters.

Instead we had, first, a pop-up department with no centre of gravity in Whitehall – DExEU, if you remember it – and then we had David Frost as a floating minister-negotiator without much civil service support.

All this was misconceived.

It meant that, for example, the network of diplomats in member states were at least one step way from those conducting negotiations, and the United Kingdom negotiators often seemed unaware of what was behind the European Union negotiation mandate.

It also meant that – with trade or with Northern Ireland – there was little regard for the international context of the negotiations.

And it meant the talent and experience pool for the negotiators was far more shallow than it needed to be.

Regardless of one’s views as to the merits and party political political significance of Foreign Secretary Elizabeth Truss now being responsible for the negotiations, it is a Good Thing that the Foreign Office is now responsible for post-Brexit policy.

It is, in a way, an administrative counterpart to the Liberal Democrat victory in North Shropshire, where voters in a heavily Leave constituency were not deterred from voting for a pro-EU party – another example that the spell of Brexit hyper-partisanship is beginning to fade.

A Leave constituency can now be safe with a pro–EU party, and post-Brexit policy can now be safe with the Foreign Office.

That said, there is still the gap as set out in a previous post on this blog: the absence of an actual post-Brexit policy.

But we are more likely to get one with the Foreign Office being responsible for post-Brexit policy than we would do with a flimsy (and virtual) government department or a shouty minister-negotiator with no department.

At some point, there will be a realisation that a close and sustainable association agreement, with joint institutions, needs to be put in place between the United Kingdom and the European Union.

Our current post-Brexit policy should be thinking and working backwards from this objective, ensuring that when we get to that (more) stable state the United Kingdom is in the best possible position.

Brexiters need to stop being defensive: they have got their Brexit, and the United Kingdom is not a member state of the European Union – no rearguard is necessary.

Remainers and rejoiners, in turn, need to accept that the United Kingdom will not be joining the European Union for at least a generation.

We should not continue with the heightened politics of 2016 – with Brexiters, remainers and rejoiners all re-fighting referendum issues like a historical battle re-enactment society.

Maybe Truss is not (yet) the right politician to move Brexit policy to the next stage.

But the Foreign Office is the right department.

And so it is a welcome move.

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From Article 50 to Article 16 – the numbers change, but the lack of thought by the United Kingdom does not

5th November 2021

The government of the United Kingdom looks set to trigger Article 16.

The European Union is currently considering its various options when this much-advertised and threatened action takes place.

And there is little evidence that the United Kingdom has put any thought into what comes next.

The triggering is the thing, you see.

Doesn’t this all seem familiar?

Almost exactly the same as the lack of thought that went into the Article 50 notification.

And the government of the United Kingdom – having had to reverse its madcap attempt to change the commons standards regime – is seeking to disapply yet another set of rules with which it does not want to comply.

None of the current enterprise even has the merit of originality.

The same lack of thought, the same lack of seriousness, the same sheer tomfoolery, and the same drive to not be bound by rules, that are features of so many of this government’s escapades.

We can wonder what the government expects when – eventually – this trigger is pulled.

Perhaps they hope for a frenzy of cathartic exhilaration.

Perhaps puffs of magic.

Who knows.

But unless there is something not obvious to us on the outside, it looks like the government of the United Kingdom may again be wrong-footed and then have to accept whatever the European Union offers to close down the dispute.

Brexit is defined as doing the same thing again and again and expecting a different result, as a famous thinker did not once say.

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All because Article 16 is a thing you can trigger, that does not make it a gun (continued)

30th October 2021

Article 16 of the Northern Irish protocol is the news, again.

There are breathless news reports that it is about to be ‘triggered’.

The use of ‘to trigger’ as a verb – like, say, ‘to activate’ – makes it sound rather dramatic.

And certain political and media types are indeed building up a sense of occasion.

The triggering of article 16 is becoming a political virility test.

One can imagine a minor character in a science fiction or superhero comic with ‘Article 16 has been triggered’ as their one line of dialogue, with the next frame of the story the horrified or bewildered faces of the major characters.

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And perhaps Article 16 will be triggered – and that the government really, really means it this time.

Perhaps the triggering of the article will precede some political deal between the United Kingdom and the European Union.

But the one thing that will not directly happen is anything that formally warrants this giddy excitement.

For, as this blog has averred (here, here and here), triggering Article 16 means that the United Kingdom and the European Union enter into discussions in respect of ‘safeguarding’ measures for the Northern Irish protocol.

And any safeguarding measures have to meet strict and objective requirements and cannot have any wider or longer effect than necessary.

Article 16 is a useful feature of the protocol – but it really does not, on its actual terms, live up to this star billing.

Well, as far one can see when as looking at this as a lawyer.

Of course, the usual proviso of any law and policy commentary is that law and politics are not the same thing.

And parties can say they have met with triumph and disaster unconnected to any actual process, and those in politics and media will chap or jeer accordingly.

But.

Looking at Article 16 calmly it is difficult to discern how it corresponds with the current political hyperventilation.

Someone, somewhere is missing something.

 

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The Brexit compact: the EU does not mind the UK getting the credit, as long as the EU gets what it wants

15th October 2021

There is a lovely quote from Ronald Reagan:

‘On my desk in the Oval Office, I have a little sign that says: There is no limit to what a man can do or where he can go if he doesn’t mind who gets the credit.”‘

(Source)

And this describes more-or-less where we are now with Brexit.

The European Union does not care what the political and media supporters of the United Kingdom say or do.

But it knows the United Kingdom government cares desperately what its political and media supporters say or do.

So we are now in the situation where there is a convenient compact.

The European Union decides what will happen at each stage of Brexit so as to protect its interests and those of member states, especially Ireland.

Speedy Article 50 notification without prior negotiation; sequencing; the joint declaration; the financial settlement; the exit agreement; the trade and cooperation agreement; the Northern Irish protocol proposals, et cetera.

And in turn, the United Kingdom can call each stage a triumph for its hard bargaining, and so get the domestic coverage it craves.

Everyone is a winner.

(Or they think they are.)

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Understanding the secrecy of the United Kingdom over its proposals for the Northern Irish protocol

14th October 2021

We are told that the United Kingdom government has provided its proposals to the European Union for changes to the Northern Irish Protocol.

We can assume this to be true – else the European Union would say that they have not received such proposals.

(It is sad we cannot trust the word of the government on this without express or implicit corroboration.)

But these proposals do not appear to have been made public.

This cannot be explained by the usual ‘cards close to the chest’ excuse – as the European Union know what those proposals say.

So there must be another reason.

And the only possible reason appears to be is that the United Kingdom government does not want the people of the United Kingdom – or the press of the United Kingdom – to know what is in those proposals.

Just think about this.

Brexit was supposed to be about the United Kingdom people ‘taking back control’ from the European Union.

But now the United Kingdom government is allowing the European Union to be privy to proposals on what happens with one part of the United Kingdom – and not the people who live and work there.

It is an extraordinary situation, if you think about it.

This is the reality of ‘taking back control’.

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A hard look at the latest Brexit speech of Lord Frost

13th October 2021

Yesterday the Brexit minister David Frost gave a speech – and it is a speech that is worth considering carefully.

One reason to consider it carefully is that – unlike many ministerial speeches (and articles) that are produced by advisors and other functionaries – it is plain that this speech is the product of the minister’s mind.

As such, the speech has more historical and probative value that the usual erratic yet dry sequences of banalities, evasions and misdirections that constitute most ministerial communications.

We have an actual insight into one key minister is thinking (or not thinking) at this key moment, and this is rare, and we should appreciate it.

And as he is the minister who negotiated the two Brexit agreements – the withdrawal agreement and the trade and cooperation agreement – an insight into his thought (and lack of thought) is especially important at this time.

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The explicit inspiration for the title of yesterday’s speech is a pamphlet by the eighteenth-century Whig writer and politician Edmund Burke.

And yesterday’s speech is, in turn, expressly a sequel to Frost’s Brexit speech in February 2020, which was also named after a publication by Burke.

In that February 2020 speech, English-born Frost described Burke as ‘one of my country’s great political philosophers’.

Burke was Irish.

And Burke died in 1797, before the Act of Union between Great Britain and Ireland.

This is just not a debating point: the slip is indicative of the shoddy combination of showiness and shallowness – about Ireland and other matters – in both of Frost’s speeches.

The Burke cited is the Burke of the quotation dictionaries, and of the beginnings and conclusions of C-grade A-level history essays, and not the Burke of history.

The Burke of history would probably have impeached this illiberal government in an instant.

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The two Frost speeches, looked at together, reveal tensions.

For example, the February 2020 speech praised agreement negotiation at speed.

Referring to the then-prospective trade and cooperation agreement, 2020 Frost said:

‘…we can do this quickly. We are always told we don’t have enough time. But we should take inspiration, I think, from the original Treaty of Rome back in 1957. This was negotiated and signed in just under 9 months – surely we can do as well as that as well as our great predecessors, with all the advantages we have got now?’

But 2021 Frost does not like agreement negotiation at speed: the Northern Irish Protocol was ‘drawn up in extreme haste in a time of great uncertainty’.

The problem here is that there is no deeper thought beneath the phrases employed.

Frost has a fine phrase for negotiation at speed, and he has a fine phrase against negotiation in extreme haste.

But he does not realise nor care that the two phrases conflict: they are both simple expedients to get him through to his next paragraph.

This explains why during the Brexit negotiations Frost has been so constantly wrong-footed.

There is no substance, for all the paraded erudition.

The big negotiation taking place here is not between the United Kingdom and the European Union, but between the David Frost of 2020 and the David Frost of 2021.

And, somehow, both are losing.

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Looking more closely at yesterday’s speech, you will see that it is structured (superficially) as a sequence of five ‘points’:

‘First to say that Brexit has changed our international interests and hence will change our patterns of European relationships – not necessarily fundamentally, but significantly. Second, that Brexit means competition – we will be setting a different path on economic policy. Third, that Brexit was about democracy – it is a democratic project that is bringing politics back home. Fourth, that the EU and we have got into a low-equilibrium somewhat fractious relationship, but that it need not always be like that – but also that it takes two to fix it. And fifth and finally, that fixing the very serious problem we have in the Northern Ireland Protocol is a pre-requisite for getting to a better place.’

Each of these points, however, turn out to be exercises in characterisation.

The United Kingdom position is characterised, and the European Union position is characterised.

Each characterisation is loaded and self-serving: the United Kingdom is portrayed as blameless and misunderstood, and the European Union is depicted as ignorant and even spiteful.

These characterisations are so extreme that both are better described as mischaracterisations.

And so the characterisations dissolve on closer examination as nothing more than excuses and accusations.

For example, take the issue of policy.

At one point Frost says that the United Kingdom will develop more substantial policy relationships with some European Union countries and not others, rather than the European Union as a whole.

But then he complains that the European Union is too rigid in binding the member states together in matters of policy:

‘In most EU member states many important things can’t be changed through elections – trade policy, monetary policy, fiscal policy, important elements of immigration policy, indeed some important aspects of industrial policy.’

Frost does not seem to realise that the United Kingdom is – and will be treated as – a ‘third country’.

The tactic of trying to circumvent the European Union and with engaging member states directly did not work during the Brexit negotiations, and there is no reason to believe it would work now.

*

But the most important part of this speech is about Northern Ireland.

Here he makes some general contentions about sovereignty and the role of the European Court of Justice.

He then insists that the import of these contentions is that the Northern Irish protocol needs to be replaced.

In a way this is a reversal of the usual caricature of continentals being obsessed with airy abstractions, in contrast to our robust Anglo-Saxon empiricism.

For the complaint as articulated by Frost does not amount to much more than a general objection to the European Court of Justice on conceptual grounds.

And, in the meantime, the European Union is proposing a range of practical measures to give efficacy to the Protocol but without removing the minor and residual role of the European Court of Justice.

And so he is wrong-footed again.

*

The one thing in common between the two speeches is that Frost is brashly defiant in his support for Brexit.

He is certain that it was a historical necessity that the United Kingdom had to break free.

This, in turn, means he sneers at the European Union for not understanding the true nature of Brexit and its implications.

But both the 2020 and 2021 speeches reveal that the real failure to understand the implications of Brexit are with Frost and other United Kingdom ministers.

The European Union, on the other hand, seem to understand the (current) United Kingdom government all too well.

Frost complains about lack of trust: ‘we are constantly faced with generalised accusations that can’t be trusted and are not a reasonable international actor’.

But these accusations are not ‘generalised’ – instead they are, to use a phrase, ‘very specific and limited’.

And, according to statements today from a former Brexit adviser, the accusation of bad faith is well grounded.

*

So, yes.

Frost’s speech has historical and probative value.

But it is not an impressive piece of work.

Characterisations (and mischaracterisations) do the work of propositions; accusations pile upon excuses; assertions are implicitly undermined by other assertions; and (ahem) very specific and limited concerns are dismissed as too general to matter.

And so the true historical and probative value of the speech is not as an insight into the thinking of the government at this stage of Brexit, but to its lack of thought.

Here it should be noted that Frost relies on the (supposed) popularity of Brexit as its ultimate justification:

‘That’s why I don’t see anything wrong with Brexit being described as a populist policy. If populism means doing what people want – challenging a technocratic consensus – then I am all for it.’

The wise counterpoint to this populism, of course, was once put as follows: that our ministers and representatives owe us their judgement – and that they betray us instead of serve us if they sacrifice their judgement to public opinion.

And who made this compelling counterpoint so eloquently?

Edmund Burke.

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The Law and Politics of triggering Article 16

24th September 2021

So the United Kingdom government is again contemplating triggering Article 16.

A recent post on this blog set out what – at law – this means.

In essence: triggering the article means a formal process will begin which may enable the United Kingdom and/or European Union to take ‘safeguard’ measures to protect the operation of the Northern Irish protocol.

On the face of it, Article 16 is not about ‘suspending’ the Northern Irish protocol but about repairing and thereby protecting the functioning of the protocol.

All because Article 16 can be ‘triggered’, that does not make it a gun.

But.

Law and politics are different things.

And sometimes legal processes can be commenced as a cover for (or as an accompaniment of) political manoeuvres.

This possibility was highlighted last week by the sagacious Steve Peers:

Maybe the European Union too would welcome the triggering of Article 16 so that it can move to a position that it may not be to adopt without such political and legal cover.

Maybe.

But even taking this political possibility at its highest, there remains the fact that the Article 16 process in and of itself is not intended to be a route for suspending the protocol but for (as it says expressly) safeguarding it.

And it is against this background we come to yesterday’s infantile tweet from the United Kingdom minister David Frost:

Or: please answer the telephone, please.

As Frost was the United Kingdom politician who actually negotiated and endorsed the agreement containing the protocol, it is an especially pathetic plea.

And those in Northern Ireland who benefit from access to the single market, while the rest of the United Kingdom face all manners of shortages, may not agree that the protocol is having a negative effect.

(And also the ‘clearly’ is also a tell – politicians tend to use the word when a thing is not clear.)

But the first sentence of the tweet looks as if the government is seeking to frame the issue as meeting the seriousness criterion for triggering Article 16.

Maybe they will.

Maybe.

*

If the United Kingdom government triggers Article 16 – and the United Kingdom government has done dafter things regarding Brexit – there will no doubt be claps and cheers.

And – and this should not be discounted – the Article 16 process could result in a political deal.

But what is not intended to happen is that the process, by itself, leads to the suspension of the protocol.

And if that is what the United Kingdom government is banking on, then this will turn out to be another needless misadventure in the story of Brexit.

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What is this “Article 16” that the United Kingdom is threatening to trigger?

14th September 2021

The Brexit minister David Frost has said that he is considering triggering article 16 in respect of the ongoing discussions between the United Kingdom and the European Union.

 

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This sounds all very portentous.

But what does it actually mean?

What is article 16?

The blogpost below is based on an extract from an earlier longer explainer posted on this blog back in January 2021 (when the European Commission clumsily and perhaps inadvertently seemed to trigger article 16 and then promptly untriggered it).

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Let’s begin with what is an ‘article’.

One of the blessings of Brexit is dealing with ‘articles’ of international legal instruments – most famously article 50 of the treaty on European Union.

The word ‘article’ is somehow grander than the more mundane ‘section’ and the everyday ‘clause’.

Indeed articles tend to be more self-contained as legal provisions – sometimes like micro legal instruments within macro legal instruments like treaties.

And article 16 – together with a dedicated annex – is such a micro legal instrument.

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Article 16 is part of the Northern Irish protocol, which in turn is a protocol to the withdrawal agreement.

Instruments within instruments within instruments.

Article 16 provides in its entirety (and you should read every word, as they will matter): In essence: the ‘if [x] then [y]’ here is ‘if [there are certain difficulties in the application of the Northern Irish protocol] then [appropriate safeguard measures can be taken]’.

*

The article is entitled ‘Safeguards’ – but straight away you will see that the provision is itself subject to its own safeguards – and this is important because, as you can see, what is or can be a ‘safeguard measure’ is not defined.

First.

In paragraph 1, the trigger for the safeguards has to be a serious situation that is likely to persist.

Second.

It then provides that any safeguards will be ‘restricted’ to what is ‘strictly necessary’ for the purpose of remedying that particular serious situation.

Third.

And ‘priority’ shall be given to what measures that cause the least disturbance.

One, two, three.

So: triggering article 16 does not mean anything goes.

Anything Frost proposes will have to meet these three substantive tests.

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And there is more.

In paragraph 2, any imbalances caused by the uses of the safeguards can be addressed with counter measures: so the article is not a unilateral tool.

If the United Kingdom takes measures under article 16 then the European Union can take countermeasures too.

Paragraph 3 then states that a prescribed process has also to be followed, as set out in an annex.

Strictly speaking: triggering article 16 does not trigger the right to take safeguard measures, but triggers a process that may in turn lead to such measures.

The annex supplements the substantive conditions on the use of Article 16 safeguards with procedural protections (and, again, this provision should be read in full): In essence: notification, talking shop, delay for a month, adoption of measures, further notification, regular consultations on measures, reviews of the measures.

Even in the event of ‘exceptional circumstances’ under point 3 of this annex, there is still a procedure to be followed.

Safeguards within safeguards within safeguards, and so on.

Article 16 ain’t no weapon – it is a remedial tool.

It really is not something to ‘threaten’.

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In summary: invoking article 16 is not to be done casually or by mere oversight.

There are many substantive and procedural conditions to be fulfilled before it can be invoked.

And unless those conditions are met, then article 16 measures are not available.

Even when all the conditions are met, the scheme of the article and the annex is that there would be a collaborative review-and-consultation to the use of the measures.

All this is – or should be – obvious from the title of the article: ‘Safeguards’.

And not Reprisals.

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High slogans and low reality: the point and counterpoint of Brexit

13th September 2021

Like a bouncing ball we go from the high slogans to the low mundane – or grim – reality of Brexit.

Take, for example, this from businessman and former politician Archie Norman:

In translation:

– taking back control was and is ‘pointless’, and

– leaving the single market was and is ‘pointless’.

For what Norman here describes as “pointless” is the direct, natural and necessary consequence of both taking back control and leaving the single market.

What he describes is Brexit in its everyday reality.

This is what the slogans really meant when converted to actual practice.

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Here is another example, for the great immigration law expert Colin Yeo:

In essence: if the French don’t cooperate, then the home secretary’s’s ‘turn around’ migrant boat policy is not only vile and inhumane – it cannot actually work.

Again, this is the reality of taking back control.

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Both the examples above are crash-courses in the value of multilateralism in a complex world – and of the banality of autarchy.

By taking back control the United Kingdom has lost the means of exercising control – whether it is the terms of trade, or its borders, and so on.

And this is not a surprise.

For taking back control exists on the plane of slogans and not on the messy plane of reality of the world in which we live.

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