The Myth of Retrospective Remaining

12th August 2019

Marriage à-la-mode: 6. The Lady’s Death, by William Hogarth

(Source: Wikipedia)

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There is a view gaining some traction among those who support the United Kingdom remaining in the European Union.

The view is that after 31 October 2019 it may be possible for the UK parliament to retrospectively annul the Article 50 notification so that the UK can be regarded as never having left.

This view is false.

To understand why the view is false, one first can go to Article 50 of the Treaty on European Union, which many will know provides for how a member state can unilaterally leave the EU.

The relevant part is in Article 50(3):

“The Treaties shall cease to apply to the State in question from the date of entry into force of the withdrawal agreement or, failing that, two years after the notification referred to in paragraph 2, unless the European Council, in agreement with the Member State concerned, unanimously decides to extend this period.”

The significant phrase is at the beginning:

“The Treaties shall cease to apply to the State in question…”

This describes the position at international law.

The member state on departure shall cease to be party to the relevant treaties which govern EU membership.

The member state is out; a former member; a member no more.

The member state is then a “third country” as much as any other non-EU member.

This is the public international law equivalent of a decree absolute ending a marriage.

The marriage is over.

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But so used are UK pundits and politicians to the supposed omnipotence of the UK parliament, it is believed that somehow this departure can by legal magic be disregarded.  That the UK can, by some legal fiction, be deemed never to have left.

It will be too late.

The door has shut.

The cat, the horse and the genie are out of their respective containers.

No loud tearful banging or elaborate legalistic ruses can reverse the legal event of departure.

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Once a member state has left the EU then there is only one way back in – the perhaps soon-to-be-famous Article 49.

Article 50 itself, at (5) provides that Article 49 is the one means of return:

“If a State which has withdrawn from the Union asks to rejoin, its request shall be subject to the procedure referred to in Article 49.”

This process would likely be a slow process, and even if the UK were eventually successful, there would be considerable doubt whether the rebate and various opt-outs would resume.

Some would question whether the UK would meet the Copenhagen Criteria.

And, as with the Article 50 revocation notice, an Article 49 application can be unilaterally revoked by the state in question at any time.

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To place any reliance on the UK parliament retrospectively asserting it was an EU member after its departure under Article 50 is dangerous and delusional.

There can, of course still be an agreed extension of time, and the departure date can also be varied by agreement of the UK and EU27.

There can also be revocation of Article 50.

There are real options for UK politicians seeking to avoid a departure for the EU on 31 October 2019.

These options remain open, regardless of the breathless fanaticism of those in and close to the current government.

And these are the options that should be being taken seriously, rather than believing in a Remain breed of unicorn.

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Brexit and the new Prime Minister

24th July 2019

Today there should be a new Prime Minister.

The new Prime Minister is a person about whom many (including me) have Very Strong Opinions.

But regardless of the character and personality of the new Prime Minister, what can usefully be said about the appointment and Brexit?

The United Kingdom continues to be a full member of the European Union.

That membership, however, is set to end on 31st October 2019, just under one hundred days away, by automatic operation of law.

This departure from the European Union can be delayed or averted, but only if one of three things happen.

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First, there could be a further extension.  There has already been two.  When the current extension was granted, the United Kingdom was warned not to waste time.

The United Kingdom, however, has wasted time.  There has been no real preparation for “no deal” and the deal on offer has made no further progress.

The governing party has been preoccupied with a leadership election, as have the political and media classes generally.

An extension required unanimous support from the twenty-eight member states.

In theory, say, Malta or Cyprus could even say no, and that would be enough for there to be no extension.

And unless there is a good reason, the United Kingdom may not get another extension, especially given how it has wasted this one.

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Second, there could be a deal which provides for a new departure date.

This would require revisiting the draft agreement and perhaps converting the current transition period to a limited period of further membership (and this would solve a range of technical problems).

There could even be an agreement for continued membership until a future relationship agreement was in place (and this would address the backstop problem sensibly).

But again, this is not in the gift of the United Kingdom. 

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Third, there is revocation.

A sensible government acting in the public interest (ho, ho) would revoke Article 50 and accept the current exercise is botched.

Brexit-supporters should be told to come back with a better plan.

This, of course, is unlikely but it is the only exception to departure on Hallowe’en which is in the United Kingdom’s gift.

The new Prime Minister would not want to revoke the process – but it is the only way to “stop a No Deal Brexit” which is entirely within the control of the United Kingdom.

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The options above would be the same for any new Prime Minister.

The character and personality of the new Prime Minister will distract many for a while, but the structure of the current situation will continue to be the same.

As it stands, the prospect of a No Deal Brexit on 31st October 2019 is a real one – an outcome in my view which is more likely than not.

The other outcomes require support from the European Union or a revocation decision.  These outcomes are possible, but there is reason to doubt each one will now happen.

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Brexit and Conservatism

5th July 2019

The Conservative Party has long been a mix of ideologues and pragmatists.

The pragmatic tradition was strong – associated with RA Butler and politics being the art of the possible.

Even Margaret Thatcher was far more pragmatic in policy – at least before 1987 – than her fans both at the time and since would admit.

But that pragmatic tradition seems to now be weak.

There are still a few sensible senior Conservatives, even Ministers, but they appear powerless in the face of shouty populism.

Applied to European Union matters, Tory pragmatists once wanted to make things work.

In the 1980s the (in my mind) second most significant Conservative politician of the time – Lord Cockfield – pushed forward the Single Market in a practical and sustainable way rather than through grand design and heady rhetoric. 

My January 2017 FT piece on Lord Cockfield is here. In it I said:

“In 1985, Cockfield (with the full support of the then commission president Jacques Delors) produced his famous white paper in a matter of weeks, and so sound and thought-through was its content that it was used as a blueprint thereafter. In 2016-17, the entire government has produced nothing other than platitudes and unconvincing excuses for secrecy.

“The UK may have had a Cockfield to put the single market in place, but it certainly does not have one to take the UK out of the EU.”

This is still the case, over two years later.

Brexit could have been done (regardless of the merits of the idea) but it needed a realistic and unideological approach.  

No silly speeches, no daft “red lines”, no loud promises of the impossible just so as to get claps and cheers from grinning idiots.

Instead, Brexit was done in perhaps the worst possible way.

How this came to happen will be a matter for debate and reflection long after the current events are over.

But one remarkable thing is how the Conservative Party which once valued unshowy pragmatism ended up so shallow and ineffective.

And another remarkable thing is that, three years after the referendum, Conservative MPs and members are set to elect as leader a politician who personifies the very shallowness and ineffectiveness of its Brexit policy.

Getting policy wrong is bad – but not learning any lessons whatsoever is arguably worse.

Many people reading this post will not be Conservatives (and may even have Very Strong Opinions on that party). 

But I am not (and this blog is not) party partisan: there are good and bad in most mainstream political parties.

My point is that it is sad and unfortunate that the political party which in a matter-of-fact way took the UK into the EEC, drove forward the Single Market, sponsored enlargement, and was a useful brake on the the heady excesses of the EU project, has become such a shambles.

The Conservative Party is no longer about the art of doing the possible, but about the artlessness of promising the impossible.

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The myth of “ruling out a No Deal Brexit”

4th July 2019

The ship of fools, depicted in a 1549 German woodcut

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There is a misleading and unhelpful phrase now in common use among politicians and pundits discussing Brexit.

The phrase is “ruling out a No Deal Brexit”.

Often you will read or hear that the House of Commons has ruled out a No Deal Brexit, or will rule out a No Deal Brexit, or should or should not rule out a No Deal Brexit.

The phrase is being used so casually that you would get the impression that the phrase was meaningful.

The phrase, however, shows a misunderstanding of the predicament that the United Kingdom is in.

A No Deal Brexit cannot be ruled out, at least not in isolation.

The House of Commons could vote against a No Deal Brexit, resolution after amendment and so on, until their faces are fully blue – and by those votes would have no effect.

A No Deal Brexit can be avoided, but only as a by-product of another positive act – acts which dare not speak their names.

The starting point, as most of you will know, is that the United Kingdom is set to leave the European Union without a withdrawal agreement by automatic operation of law on 31st October 2019.

That is the default position; nothing more needs to be done; the ball rolls off the table.

That default can be defeated only in three ways.

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One: that the current (or an amended) withdrawal agreement is approved by the UK Parliament and the European Parliament before 31st October 2019.

The problem with this is that the deal has already been rejected by historic majorities by the House of Commons, and there is no time and little inclination by the European Union to revise the current deal on offer.

A deal in place on 31st October 2019 is possible in theory, but there is little basis in reality (at the moment) to see it happening.

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Two: that there is a further extension to the Article 50 period.

This is the most likely in practice but – and this should never be discounted – it is not a matter of the United Kingdom Parliament.

An extension can only be given at the request of the departing member state and then with the unanimous consent of the remaining EU27.

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Three: revocation.

Strictly, this is the only one of the three ways that is in the gift of the United Kingdom.

A departing Member State can revoke the Article 50 revocation at any time before exit – according to the European Union Court of Justice.

This would certainly rule out a No Deal Brexit.

Indeed, it would rule out any Brexit – at least in the short to medium term.

A revocation has to bring the departure process to an end – not just stop the clock (although how this stipulation would be enforced in practice is another question).

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Unless one of these three means are adopted, it is impossible to “rule out” a No Deal Brexit, and only one of them is entirely within the control of the United Kingdom (though if the current deal was accepted, there is little doubt the European Parliament would also approve it).

So when you hear a politician or pundit assert that a No Deal Brexit must be “ruled out”, there is one simple question.

How?

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A test for constitution-mongers

17th June 2019

(Title page from the Edmund Burke’s Reflections on the Revolution in France, 1790)

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Constitutional law should be boring.

For ages, the subject was boring – entire pages, sometimes entire chapters, of UK constitutional law books would have no leading cases from the lifetimes of those teaching the subject, let alone those being taught.

The party battles and the political crises would come and go, but the settled practices of the constitution would carry on much the same.

And now  it is the most interesting time to be a constitutional lawyer in England since the 1680s.

(That last sentence is deliberately limited to England, as the constitutional histories elsewhere in the United Kingdom are different.)

This is not to say we have (yet) a constitutional crisis.

So far, our constitution has been (fairly) resilient in the face of executive power-grabs and novel predicaments.

The executive was stopped by the courts from making the Article 50 notification without parliamentary approval.

And the executive was then stopped by parliament (using at times some ingenious and arcane procedures) from taking the UK out of the EU without a deal.

Of course, neither of these outcomes were inevitable and could have gone the other way – and the latter may still happen on Hallowe’en.

But to the extent a constitution exists to resolve tensions so that they do not become contradictions, the UK constitution has done (generally) well so far with Brexit.

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Over at Prospect magazine I have done a short piece on the constitution.

My argument in essence is that the test for a codified (or any) constitution is that it can recognise and regulate tensions between the elements of the state (the main elements being the executive, the legislature and the judiciary).

Some who read perhaps too quickly (if at all) raced to characterise my piece as an argument for an uncodified constitution.

But I am ultimately neutral on the form of any constitution – I am more interested in how well it functions.

Neither a codified nor an uncodified constitution is inherently superior.

The test is a practical one.

And the test for those who urge codified constitutions (who Edmund Burke wonderfully called “constitution-mongers”) is to show how their models and proposals would work.

It is not enough to assert that, of course, a codified constitution would be better as a matter of principle or of faith.

Show us the proposed constitutional code – the detail and the drafting –  and let it be examined and tested.

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Brexit and the governing party

14th June 2019

Pandemonium, John Martin, 1841

 

The United Kingdom has an Article 50 extension until 31st October 2019, and it is wasting its time.

One particular of this is the current leadership contest in the governing Conservative party.

Many of the candidates support, or can accept, a “No Deal” Brexit.

The political support for these “No Deal” candidates is an index of how little has been learned by the governing party over the last three years about Brexit.

It is almost as if Brexit has not unfolded the way it has, in front of them.

The denialism and delusion is rampant.

The United Kingdom is likely to get the “No Deal” Brexit its governing party deserves, regardless of the suffering and chaos this will bring.

To watch this play out in real-time is depressing, but there seems little that can be done.

The problems and choices have been explained again and again, the European Union has been consistent and plain, the difficulties – including in respect of the Irish border – have been described in detail.

But the MPs of the governing party – and some other MPs and many pundits – do not care for such inconveniences.

They are going to “press on” anyway.

The only hope for sensible people if a “No Deal” candidate wins the leadership election is that, to become Prime Minister, that new leader also has to have the “confidence’ (that is, a sustainable majority) of the House of Commons.

And the majority of the House of Commons is (or at least was) for avoiding a “No Deal” Brexit.

That the new leader of the Conservatives becomes – or stays as – Prime Minister is not automatic or necessary.

There are conceivable scenarios where another politician, who wishes to avoid a “No Deal” Brexit, could have the confidence of the House of Commons, with a coalition.

Or, alternatively, a “No Deal” Prime Minister could be checked and balanced by the Commons.

Or, it could all be a dreadful disaster.

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Political problems and solutions, and the problem of Theresa May

17th May 2019

(The Lobby of the House of Commons, 1886,
by Liborio Prosper, National Portrait Gallery)

There was a Victorian conservative politician – probably Benjamin Disraeli or Lord Randolph Churchill – who sneered at a person mentioning a political problem.

The gist of the sneer was: dear chap, are you one of those who believe problems have solutions?

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It is a human habit of mind to think problems have solutions.

It is enough for many just to frame a thing as a problem to assume it must thereby have a solution.

You are halfway there, as the saying goes.

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But our Victorian politician is correct: not all problems have solutions.

One of the problems with Brexit at the moment is that our current Prime Minister is not capable of carrying out her – or any – Brexit policy.

No one can deny that this is a problem.

But is it a problem capable of any solution?

Replace May with somebody else and that new Prime Minister will not be capable of carrying out their – or any – Brexit policy.

The problems are structural not personal – though May’s deficiencies can be blamed for that now being the case.

You would think the modern heirs of the party of Benjamin Disraeli and Lord Randolph Churchill (and of Rab Butler and Harold Macmillan) would appreciate that political problems are not always open to (easy) solution – that politics is the art of the possible and events can throw one off-course.

But, no.

The modern Conservative party appears to have been infected by the wild radicalism of those who think there are easy solutions, or even that there are not really problems at all.

And that too is a problem which is not easily solved.

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The Pantomime Macabre of Brexit

15th May 2019

Welcome to the Shadow Dance of Brexit.

Every few days now is a play-cycle.

Theresa May stays as prime minister and announces she is bringing her deal back to parliament by some means or in some form.

Anyone against this makes her only more adamant.

And we all know that she will fail, as she has failed before.

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Elsewhere Brexit supporters will promote their proposals – proposals that have no substance.

Their pretence is that there are easy answers.

And against them there will be Remainers jeering and complaining about the Brexiters.

Few Remainers say anything positive about remaining: it is enough that they jeer at and complain about Nigel Farage and those who enable him.

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And this Shadow Dance, this Pantomime Macabre, will continue for what will seem an eternity.

Boos and cheers.

The same lines, the same rejoinders, the same effrontery.

And all the time, the departure of the UK from the EU by automatic operation of law comes closer.

The two extensions so far fool many into thinking extensions are easy.

Time grinds on, and the Shadow Dance continues.

And in all this, fewer and fewer remember or care what is actually at stake: the practical problems of EU departure and how they can be managed.

But that seems like something for another day.

We can deal with that after tomorrow.

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Causes and effects and Brexit

24th April 2019

Battle of Naseby.jpg

When thinking and writing about Brexit I often recall the wise words of the great historian Conrad Russell.

Russell set about, between the mid-1970s and the early-1990s, re-considering and then revising the matter of what led to the English civil war.

His conclusion was, in effect, that we were asking the wrong questions.

His view was that to explain causes you had to consider first effects.

Here, the passage which I keep remembering is in his The Causes of the English Civil War, the printed edition of his Ford Lectures of 1987-88:

“In investigating causes, the first necessity is to match them with effects, and it therefore seems a logical priority to begin by trying to establish the effects for which causes must be found.

“If the effects are wrongly postulated, the causes will be wrong also.

“If we discuss causes without any investigation of effects, we are simply indulging in unverifiable speculation.”

(Sentences separated out for ease of on-screen reading.)

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So what are the “effects” of Brexit which we would need to explain if we are to understand the “causes” of the current predicament.

It would not be enough to explain why there was a referendum in June 2016, as the result was close and could have gone differently.

It would also not be enough to explain why there was a close Leave victory, as that would not explain (by itself) why the UK government then adopted the approach it did, from all other possible approaches.

And it would not be enough to explain why the UK government handled Brexit policy so badly after the referendum, as a great deal also came down to how EU27 responded, and this would need explaining in turn

There would seem to be no one grand cause of Brexit but a complex of different origins, any of which could have been different, and could have ended with different outcomes.

In the years to come, some historians and pundits will posit that whatever outcome we end up was inevitable all along.

(Those historians and pundits currently, however, have not any idea what will happen.)

As one great wit put it: history is a box of tricks we play upon the dead.

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Russell himself contended that the “effects” of the English civil war which needed explaining were: the Bishops’ wars, the English defeat, the failure to reach settlement, the failure to dissolve or prorogue parliament, the choice of sides, the failure to negotiate, and the problems of the king’s diminished majesty.

He averred:

“The removal of any one of these seven things could have prevented the civil war as we know it.”

This was his view, of course, other historians disagree – though few if any serious historians now suggest that there was just one or two big causes of the English civil war.

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The task for those of us who are seeking to explain the extraordinary contemporary phenomenon of Brexit is not to get caught up too much in the excitement of daily events, and also to not readily adopt the easy benefits of hindsight.

In other words: the key question is not only about why and how Brexit has unfolded in the way it has, but to also grasp why and how events did not go differently.

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The three ends of Brexit

18th April 2019

There are only three ways which Brexit – by which I mean the departure of the UK from the EU following the Article 50 notification of 29 March 2017 – can end.

These are for the UK to leave with a withdrawal agreement under Article 50, or to leave without such a withdrawal agreement, or to revoke the notification.

In short: Deal, No Deal, Revocation.

There are ways and means to these destinations: extensions, referendums, general elections, and so on.

But even perpetual extensions would only be putting-off one of the three ends, not an end in itself.

And there are plausible paths to each of the ends.

(A politician once said that he wanted all students to get “above average” examination results. In a similar manner, so plausible is each of these ends, one could say each had a higher than 50:50 chance.)

As of today, nobody knows which of these three ways Brexit can end.

And doing nothing is no help: that just makes No Deal the end come 31st October 2019.

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