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
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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 © 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
Theresa May and Jean-Claude Juncker © Getty Images
Below is a thread of tweets I posted on Monday as a commentary on the reports of the dinner between the UK prime minister Theresa May and Jean-Claude Juncker, the European Commission president. Read more
Michel Barnier © Getty Images
This is the third of three parts of a source-based detailed account of how the EU’s negotiating position on Brexit came about. Part one of this post is here and part two is here.
The story so far. Part one showed that the key principles of the EU’s negotiating position were in place within days of the UK referendum result, even before Theresa May became prime minister and months before her Birmingham speech. Part two set out how Brussels developed that position into almost final form before 2016 ended. Both parts have emphasised how the EU has also mastered the procedural side of Article 50 so that, when notification was finally made, the scope and content of any exit deal were, from the EU’s perspective, already determined.
From Lancaster House to the Article 50 notification
Theresa May made what seemed a significant speech at Lancaster House on 17 January 2017, setting out her government’s negotiating objectives for exiting the EU. At the time, this appeared to many UK commentators to be a major and consequential step. Read more
Donald Tusk (left) and Jean-Claude Juncker © Getty Images
This is the second part of this post. The first part was published here and the third part is now here.
The preparation begins
After the referendum result came in, the EU’s leaders were quick to articulate how they believed Brexit should be dealt with. Announcing principles and objectives are one thing, mastery of process another. But in this respect, the EU also moved swiftly.
While those in the UK obsessed about the first two sentences of Article 50, those on the EU side focused on the following sentences:
“In the light of the guidelines provided by the European Council, the Union shall negotiate and conclude an agreement with that State, setting out the arrangements for its withdrawal, taking account of the framework for its future relationship with the Union. That agreement shall be negotiated in accordance with Article 218(3) of the Treaty on the Functioning of the European Union. It shall be concluded on behalf of the Union by the Council, acting by a qualified majority, after obtaining the consent of the European Parliament.” Read more
The people of Britain speak, and the EU listens © Getty Images
This Saturday, the European Council is holding a special meeting to adopt the EU’s formal guidelines for the Brexit negotiations.
This meeting was announced a week before Theresa May sent the Article 50 letter with notification of the intended departure from the Union and it is being held exactly one month afterwards (from 29 March to 29 April). The EU appears to have moved fast.
This is a good moment to look back at the evolution of the EU’s position on Brexit, to trace how its side of the great matter has developed over the last year or so. This post (which is in three parts) sets out in detail how that position has come into place, based primarily on official sources. Read more
Theresa May announces she will seek a mandate with a general election © Getty Images
On Tuesday, the prime minister Theresa May said there will be a UK general election on 8 June 2017. In technical legal terms this should not be for her to decide. It is a decision for parliament. But in reality the decision is that of the prime minister even though the law says otherwise.
Before 2011, the power to dissolve parliament was one of the prerogative powers that the prime minister could exercise on behalf of the crown. It was perhaps the prime minister’s greatest power: it would be used rarely but the possibility of it being exercised was enough.
Then in 2011, as part of the coalition government’s programme, a Fixed-term Parliaments Act was passed. The intention was to take the politics out of the dissolution of parliament. There would no longer be the risk of a snap general election. Read more
Boris Johnson © Getty Images
The demand was unexpectedly precise, and as a particular demand it seemed almost to come from nowhere. In her speech to the conservative party conference in October 2016, the newly appointed prime minister, Theresa May, made ending the jurisdiction of the European Court of Justice in the UK a firm commitment for Brexit.
Unlike most of the other Brexit promises up to that date, such as “taking back control” of “our” laws, borders or money, this was not vague. The jurisdiction of any court is, and always should be, a binary matter. Either you are subject to the jurisdiction of a court or you are not. This was a “yes/no” issue. Read more
Theresa May's Article 50 notification letter © Getty Images
Legal documents should be allowed to just be legal documents. This is not only true of contracts and wills. It is true of statutes, which should not be given daft populist names or have provisions that have no possible legal effect.
It is also true of notices being given under treaty provisions, such as notifications under Article 50(2) of the treaty on European Union.
This week, the UK prime minister Theresa May sent the Article 50 notification for Britain to leave the EU. This was contained in a six-page letter, of about 1,000 words. There were underlined sub-headings, passages in bold and even a sudden (and unexplained) outbreak of numbered paragraphs. In form, if not in substance, the letter was all over the place. Read more
David Davis © Bloomberg
Twelve days ago it was reported that a draft white paper for the Great Repeal Bill of “around 50 page long” was circulating in Whitehall. On Thursday it was published. The document is in fact 44 pages long, of which half a dozen are completely blank and four have only large blue rectangles. Of substance, there are about 18 pages. Nine months has been spent preparing this document, so that means an average of two pages a month.
This white paper is essentially a discussion document, scoping the problems in general terms and suggesting equally general workarounds. Some of these proposals are not bad (at least a first glance). There is a sensible suggestion of making the case law of the European Court of Justice binding as a matter of domestic law until the domestic courts (or legislators) change it. Read more
Henry VIII © Getty Images
Voltaire once said that the Holy Roman Empire was neither Holy, nor Roman, nor an Empire (“ni saint, ni romain, ni empire“). Much the same can be said of the UK government’s Great Repeal Bill, which is to be the main legislative basis of the practical process of Brexit.
There is not yet a bill. There is no draft bill for consultation. There is not even a white paper, although there was news on Monday that one is on its way — a draft is, it seems, in circulation in Whitehall. It is about 50 pages long and will, it is said, be published when the Article 50 notification is made.
The bill is not about repeal, at least not primarily. Its primary purpose will be to place into local UK law almost the entirety of currently applicable EU law. In a wonderful paradox, the bill will, in effect, be the greatest single imposition of EU law in UK legal history. This is what “taking back control” has to mean in practice. Read more
The Queen © Getty Images
On Thursday, the legislation for Article 50 notification gets royal assent. The Queen does not do this personally — no monarch has done so since 1854. This is unlike bills signed by, say, US presidents. But royal assent is what makes a bill an Act of Parliament. The power of the prime minister to make the notification is now part of the law of the land.
There is a somewhat academic question of what at law constitutes the decision of the UK to leave the EU as required by Article 50 before such notification is sent. I deal with that geeky constitutional law question here.
But the significance of the new act of parliament is that it is now, once again, in the hands of the prime minister. In legal(istic) terms, we have reverted to the position Theresa May thought she was in before the High Court decision in the Miller litigation. She can now make the notification at a time of her own choosing. Read more
Ozymandias: 'Look on my works, ye Mighty, and despair!' © Getty Images
Imagine you are from a state in a political union with other states. Imagine that this means there is a shared market, and that certain political decisions are made at the union level and others are made at the state level.
Imagine now a referendum in that state on the issue of membership of that union. On one side are those who want the state to be free of the ties. On the other side are those at ease with the state being part of the larger political entity. How would one approach this debate from first principle? Read more
Scotland's first minister Nicola Sturgeon holds a cabinet meeting on Tuesday © Getty Images
When the Supreme Court judgment in the Miller case declared that there needed to be an act of parliament for the Article 50 notification to be made, there was relief — even delight — in parts of Whitehall and Westminster.
Yes, the UK government had lost on the narrow point: it was not lawfully open for the prime minister to make the notification under the so-called royal prerogative. It had been roundly defeated on the main part of the application, notwithstanding instructing the attorney-general to represent its defence.
Yet the government was happy not to have been bested on the wider basis of devolution. There would be no need, decided the Supreme Court, for any formal involvement for the devolved administrations of Scotland, Wales and Northern Ireland. Still less was there any legal basis for a veto. Read more
The official residence of Nicola Sturgeon, Scotland's first minister © Getty Images
Once upon a time, wise British small-c conservatives and small-u unionists knew better than to meddle with constitutional matters. Even though, from time to time, constitutional changes were necessary, they were not to be entered into lightly. You never knew what would happen next.
The folly of David Cameron’s un-conservative referendum on UK membership of the EU now has a fresh consequence: today, the Scottish first minister Nicola Sturgeon said there should be a new independence referendum once the UK’s terms of departure were obvious. The date for such a referendum will be between autumn 2018 and spring 2019. The union with Scotland is therefore at stake. Read more
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Legal agreements do not really exist for when things go well. They are more for when things go badly. The primary, sometimes only, purpose of any contract is to regulate the consequences of things not going in the manner hoped for. For it is only when something goes wrong that the parties want to be able to go to a court to enforce the terms of the legal instrument.
Anyone entering into a complex and high-value legal relationship should be careful. What are the allocations of risk for all the foreseeable things that can go awry? How can the relationship be brought to an end? The parties to a deal should be unsentimental and painstaking: in the event of anything undesirable happening then the respective positions of those involved should be clear. Read more
One of the best tweets occasioned by Brexit was sent not long after the polls closed on the day of the referendum:
The speed of the count was not the only impressive electoral feat of the Gibraltar vote that night. Ninety-six percent of those who voted in Gibraltar wanted the UK to remain in the EU. This was by far the highest support for EU membership in any area that voted in the referendum.
But what are the consequences for Gibraltar of that referendum’s overall vote for Brexit? Has the vote for Leave placed the Rock in a hard place? Read more