© Getty Images

Those of us who are sceptical of how the UK government is going about Brexit are often accused of being unhelpful. So here is a constructive blogpost, setting out how Brexit should and could be done, if it is to be done at all.

Step one: reconsider the method of departure

Article 50 is not the only means by which a member state can leave the EU. The provision, of course, provides the only way by which a member state can (1) lawfully and (2) unilaterally leave the EU. Any other unilateral departure would breach international law, and that would not be sensible for any country wanting to sign new international agreements.

But the UK can leave the EU without Article 50 by agreement, for what is done by treaty can be undone by treaty. There is no reason under international law why Britain could not leave the EU by means of a treaty. It does not need to be trapped by the Article 50 process. Read more

Boris Johnson

Boris Johnson  © Getty Images

The humiliation came in three stages, spread over three days. The first stage was on Tuesday 11 July 2017, on the floor of the House of Commons. During a debate on exiting the EU, the UK foreign secretary Boris Johnson was asked: Read more

The European Union (Withdrawal) Bill has been published, at last. (The bill is here, the explanatory notes are here, and further government information is here.)

The bill was once to be known as the “Great Repeal Bill”. The “great” has now been abandoned. It now has a mundane everyday title.

But there can be no denying that it is a repeal bill, of sorts. The first clause boldly announces, in its entirety: “The European Communities Act 1972 is repealed on exit day.” A mere 10 words to undo 45 years of law and policy. Read more

On Tuesday, there was a tweet about Brexit from Lord Digby Jones. Read more

Think first!

Think first!  © Getty Images

There are reports that MPs will insist on the UK government reversing its intention to leave Euratom, the pan-European nuclear regulator. If so, this creates a fascinating legal and political problem. How would the UK government go about pulling back from leaving Euratom?

For the reasons set out below, I cannot see how the UK can do this without either revoking or amending the Article 50 notification sent in March, and even that route may not be possible.

Euratom was included in one of the original three 1957 “Treaties of Rome”. A second one, covering steel and coal, expired in 2002. The third has, after heavy amendments and name changes, become the inelegantly named “Treaty on the functioning of the European Union”. This now sits alongside the similarly named “Treaty on European Union” signed at Maastrich in 1992, and they are together the fundamental law of the EU. Read more

This post sets out the argument that there should not be a further referendum on the UK’s membership of the EU, and that there should not be any other UK-wide referendums at all.

There are indications that those in favour of UK remaining in the EU desire a further referendum. This would be either a repeat of the June 2016 vote or a vote on any final Brexit deal, with the option of the UK remaining in the EU instead.

Some pundits are confident that the Remain side would now win such a vote. Such confidence may be misplaced. Read more

Poll tax riots in Trafalgar Square

Poll tax riots in Trafalgar Square  © Getty Images

Once upon a time there was an idea for a policy of a “community charge” to pay for local government in the UK. Some very clever people thought it was a very clever idea indeed.

The idea was put into the Conservative party manifesto for the 1987 general election, set out in plain sight:

 Read more

The Queen makes her speech in the House of Lords

The Queen makes her speech in the House of Lords  © Getty Images

For many the Queen’s Speech on Wednesday was a disappointment. The speech traditionally lists the proposed legislation and other measures for each year-long parliamentary session. It is read out by the Queen from a text provided by the government.

For the government, this speech demonstrated that various major proposals had been dropped. For the opposition, it showed a government unable to address properly various problems. For the media, it gave little for them to write about.

But in one way, the speech was welcome. The relative lack of legislative proposals is, in principle, a good thing. Of course, there were unfortunate omissions — the lack of a much-needed prisons bill, for example. On the whole, however, the less legislation the better. There are too many statutes, with too little proper scrutiny and too often passed for the wrong reasons. Read more

There was one striking omission in Wednesday’s Queen’s Speech. This was not an omission of any of the politically controversial legislative proposals because of the hung parliament. The striking omission was a simple word: ‘great’.

Since Brexit, the government has repeatedly asserted that there would be a “Great Repeal Bill” (as a proper noun, with capitals). This title was not merely a colloquialism or a slogan. The term was repeatedly used in official documents. The January 2017 white paper on Brexit stated: Read more

David David (left) and Michel Barnier

David David (left) and Michel Barnier  © Getty Images

On Monday, in plain sight, there was an important U-turn by the UK on the first formal day of the Brexit negotiations. The UK government will not openly admit this, of course. Ministers and their press officials are pretending “nothing has changed”. But something has changed, and it is significant. The U-turn was fundamental.

The reversal is on the issue of “sequencing” — that is, the order in which things will be discussed between the UK and the EU in the negotiations about Brexit. This is an especially critical issue in that there are two agreements in play. First is the exit agreement, which deals with all outstanding issues caused by the departure so as to ensure that it is an orderly process: in effect, the divorce agreement. Second is an agreement on the future relationship between Britain and the EU, particularly the terms of trade. Read more

David Cameron resigns as prime minister after the referendum result

David Cameron resigns as prime minister after the referendum result  © Getty Images

The sequence of events following the decision of former prime minister David Cameron to hold a referendum on the UK’s membership of the EU is so familiar that it is tempting to blame him entirely for Brexit, and to assume implicitly that Brexit could not have happened otherwise.

But what if Remain had won the referendum? What would have been different not in the shorter term (which, of course, would have been different) but in the medium to longer term? Was the great matter of Brexit likely to happen at some point, if not directly triggered by the referendum result of June 2016? Read more

Pro-Brexiters demonstrate outside the Houses of Parliament

Pro-Brexiters demonstrate outside the Houses of Parliament  © Getty Images

Brexit was never going to be simple. But the problem since last summer’s referendum, if not before, is that it is treated by its supporters as if it were an easy exercise. And this approach is the biggest opponent of a successful Brexit.

Leaving the EU means the rapid dismantling of more than 40 years of law and policy in dozens of areas of national life. None of this was ever expected to be removed. Year by year since 1973, the UK state has fused with the EU in the formulation and administration of policies now ranging from the single market to environment to civil and criminal justice. Read more

European Council president Donald Tusk receives the notification of Article 50

European Council president Donald Tusk receives the notification of Article 50  © Getty Images

Even if Theresa May had won a substantial majority in last week’s general election, she would still not be a good prime minister for Brexit. For the UK to have any chance of a successful Brexit, it is crucial that she is replaced. In this regard, the election result makes no real difference.

Mrs May is not a bad politician but she is only good at certain things. At the home office she survived for six years in a post that has ruined many politicians. She is a rare example of a home secretary whose political career has continued after leaving that department, let alone one who became prime minister. She may not be great at statescraft but in respect of the basic political requirements of obtaining and then keeping power, Mrs May should not ever be underestimated. She climbed to the top of Disraeli’s greasy pole when many flashier and more thoughtful politicians did not. Read more

Waiting for news in Downing Street  © Getty Images

The direct impact of a hung parliament on the two-year Article 50 period can be easily stated: there is no direct impact. Read more

The human rights Act made the second Hillsborough inquest possible   © Getty Images

So, a day or two before the UK general election, the prime minister and Conservative party leader Theresa May proposes to “tear up” human rights law which, she asserts, stops her government dealing effectively with terrorism.

Presumably, this is not the sort of politician’s statement that will influence how anybody reading this blog will vote. Indeed, it is not the sort of statement that is aimed at any sophisticated or thoughtful voter. Our ears are not able to hear the dog whistle: we can only see the curious contortions of the person blowing hard on it. Read more

The UK and EU are opposed to each other on many aspects of the Brexit negotiations. But on at least one, the two sides seem to be at cross-purposes, and that is the issue of the budget.

Article 50 envisages that there is an exit agreement for a member state intending to leave the EU. The key word here is “agreement”. If the liabilities of a departing member were clear then there would be no need for an agreement. The EU (or UK) could just enforce its outstanding debts and recover what is due to it. If the legal liabilities were easy to ascertain then an agreement would be superfluous. There would just be a grand reckoning. Read more

  © Getty Images

The Conservatives have promised an extension of workers’ rights if they win the general election. But what is the purpose of such rights if they cannot be enforced? This is a general point (so this is a general post) but it is a point worth making even in this way. Indeed, it is so bleedingly obvious a point to make, one wonders why the Tories feel they can get away with it.

In 2013, the Tory-led coalition government imposed fees for the employment tribunals where workers can enforce their rights. Would-be claimants have to pay an issue fee and a hearing fee. For a typical unfair dismissal claim these will be more than £1,000. There is no automatic entitlement to recover these fees even if the claimant is successful: the claimant has to ask for the tribunal to exercise a discretion. Read more

Wednesday’s decision by the Crown Prosecution Service not to prosecute any of the Conservative party politicians and officials in respect of the “Battlebus” allegations is not – or should not be – a surprise.

But when the allegations emerged last year, there was considerable excitement that there could be prosecutions and convictions of dozens of politicians and officials, leading in turn to by-elections. Some even speculated – fantasised – that the government’s majority would be wiped out by this (supposed) “Tory Election Fraud” scandal. Read more

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Here is a thought experiment: what would it take, in practice, for a UK government to self-sabotage a “successful” Brexit? And how would that differ from current policy?

We all know the government’s position is that “Brexit means Brexit” and that Britain will make “a success of it”. We also know that, now Article 50 has been triggered, the UK will not be a member of the EU in two years’ time (unless something happens which cannot currently be foreseen). Brexit will therefore take place, whether it is to be a success or not. Read more

Theresa May and Jean-Claude Juncker meet in Downing Street

Theresa May and Jean-Claude Juncker meet in Downing Street  © Getty Images

One of the most important yet most difficult aspects of Brexit will be sorting out what happens to EU citizens from other member states in the UK and to UK citizens in other EU states.

The issue was one of those raised at the now-infamous dinner between the UK prime minister Theresa May and the EU commission president Jean-Claude Juncker. According to one report:

“[the] EU side were astonished at May’s suggestion that EU/UK expats issue could be sorted at EU Council meeting at the end of June. Juncker objected to this timetable as way too optimistic given complexities, eg on rights to health care”. Read more