David Davis

David Davis  © Getty Images

There is an old joke about two people shouting at each other from opposing balconies on some narrow street. They will never agree, the punchline goes, because they are arguing from separate premises.

The same could be said about the differences in approach to the financial element of the Brexit negotiations. The UK is adopting a legalistic stance, with constant assertions that no more will be paid than is legally owed. An earlier post on this blog set out what was said at that infamous dinner at Downing Street, where (according to Frankfurter Allgemeine Zeitung):

“The subject of money came up in conversation. The EU estimates costs of 60-65 billion Euros for London. May argued that her country didn’t owe the European Union one penny; after all, there’s nothing in the treaty about a final tally due in the event of an exit.” Read more

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Over at Politico Europe is a fun piece resting on some serious points. The article has the title “Brussels fears Britain’s ‘Brexit chaos’ part of cunning plan”. It begins:

“Viewed from Brussels, the UK seemed so ill-prepared in the early rounds of Brexit negotiations that some EU countries think it must be a trap”.

There is a long tradition of making out that there is method in madness, or at least method in daftness. The wonderful internet site TV Tropes has two categories on the representations of such approaches with examples from literature to video games: Obfuscating Stupidity and Obfuscating Insanity. From Hamlet to Blackadder there are many examples of claims that something silly or mad is really quite sophisticated. Whatever the verb “to lull” means, it is often done so as to create a false sense of security. Read more

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This post tells the story of a text: the referendum question that was put to the voters of the UK and Gibraltar on 23 June 2016.

Significant historical texts — legal, religious, political, and so on — have both prehistories (how the text came to come together) and a history of how they are interpreted. Indeed, they can have interpretative lives of their own, regardless of the intention of the authors and even of what the text itself says.

The prehistory of the question

So to begin with, the words. The referendum question was:

“Should the United Kingdom remain a member of the European Union or leave the European Union?”

The question was originally planned to be:

“Should the United Kingdom remain a member of the European Union?” Read more

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The issue of the European Economic Area is back among those who talk and think about Brexit. This post sets out, from a law and policy perspective, why staying in the EEA is not a simple or necessarily attractive option for those who want a softer form of Brexit, but that it may be the only practical option the UK has if Brexit is to be done with rapidity.

 

The EEA

The EEA is provided by a 1994 agreement. If you scroll down to page 4 of the legal text of the EEA agreement you will see an impressive list of the signatories. In particular you will see the UK as a party to the agreement.

The agreement is, in effect, between three members of the European Free Trade Association (Iceland, Liechtenstein and Norway) and the member states of the EU. Formally, the contracting parties are, however, the individual counties (though the EU was also added as a party in 2004). Read more

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There is no real prospect of everything that needs to be done for Brexit being finished by 29 March 2019, the day on which (unless another date is agreed) the UK will no longer be a member state of the EU. Some unkind people would say there is no real prospect of much being done at all. Read more

I saw the best minds of my generation destroyed by Brexit, straining hypothetical mandates, deluding themselves about sovereignty…

Well, perhaps not the best minds. But then one suspects that the best minds of Allen Ginsberg’s generation were also not actually dragging themselves through any streets at dawn looking for an angry fix or for anything else.

There are, however, a lot of people saying and thinking things about Brexit who do know better, or should know better. Read more

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Tuesday’s UK Supreme Court judgment striking down the government’s employment tribunal fees regime is significant in two important ways. Read more

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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