Thursday, 29 June 2017

The Brexit Principles

I'd say that pretty much anything good in the man-made world is driven by a clear set of principles. Video games might be designed around the idea that the player is made to feel like a hero; websites might be designed around the principle that every feature is no more than 2 clicks away; mobile phones might be designed so that they easily fit in a pocket or can go 24 hours without a charge.  Even the heroic Human League worked on the principle that they would never use "real" instruments; every electronic epic they recorded stemmed from that basic idea. I've worked on projects that started out with a set of principles but then, for all sorts of reasons, the team lost sight of them along the way.  They didn't turn out well. I've also worked on projects that never had any principles to drive them along. Hmm, let's not dwell on those for too long. In my experience, the most successful projects are driven by a fixed set of clear principles from start to finish.  What happens when those principles are absent or abandoned?  Well, the sad death of myspace and the cluttered pages of hellish design it served up act as the perfect example.


Look at the state of this!  No wonder everyone took to Facebook.
What principles lie behind the recent proposals to safeguard the rights of UK/EU citizens caught up in the UK's departure from the EU? The EU's proposal is the easiest to decypher. They started with the principle that anyone exercising their right to freedom of movement in the EU should carry on being able to exercise those rights in perpetuity. Every page of detail in the EU's proposal flows from that basic requirement. They have done this to such a degree that we should criticise their proposal only on its ability to produce an outcome that meets the basic principle of continuing rights. Describing the document as generous or humane is to miss the point because it is the underlying principle that is generous and humane rather than the technical policy details that will uphold the principle. We can argue all we like about the detail but the only meaningful test is whether it does what they want it to do.

What about those UK proposals? Do they also represent a set of principles? That being the case, what might they be?  I've been through the whole document a few times now and I'm struggling to understand the principles that underpin it. In difference to previous UK attempts at Brexit policy, the UK's proposals are clear and professionally written. There is still significant detail to thrash out but it is relatively easy to understand what the UK Government want to implement. The persistent problem is that it is much, much harder to work out why they want to implement that specific proposal. I know what they want to implement but I honestly don't know what they are trying to achieve.

Here's an example to illustrate my point. The UK have set themselves up for an argument about the cut-off date for permanent residence status, which they euphemistically call "setttled" status. Instead of choosing a specific date they want to negotiate a cut-off somewhere in-between the delivery of the Article 50 letter and the final date of departure. Why do this? What principle is served by having a vague cut-off date? How does this add certainty to the lives of citizens caught up in this mess? I honestly don't get it so maybe we should look at another example. The UK proposes that an absence of two years from the UK will lead to the immutable ending of permanent residence status. Why? Why two years instead of three or one? Who gains from this? Again, what fundamental principle is upheld by this detail? After all, this is likely to affect those who are most economically active because it will push out workers on extended secondments for international companies, academics on sabbatical, and people who can afford extended career breaks. Is that the goal? What is the goal? I don't know.

The government's confusion is further demonstrated by their rejection of the ECJ. They quickly make the point that they would accept an international court to adjudicate on disputes but fail to outline the principles that would be upheld by the court. The EU, of course, insisted on a role for the ECJ because it was the only path that followed the basic principle of continuing rights for UK/EU citizens. This is not just a technical point: rights only have meaning when they are legally enforced. Removing the legal backstop that has enforced the four freedoms since their inception diminishes the value of those freedoms.  A new court can only continue to uphold those rights if it makes exactly the same rulings as the ECJ.  Those rulings, of course, would need to be based on accumulated legislation and case history, which, in turn, reflect a set of underlying principles. The UK are just about prepared to subject themselves to a "neutral" court but they are completely unable to describe the principles that would drive the court's rulings. Another way of putting this is that they know they don't want a role for the ECJ but they're unable to express any supporting reasons. They are unable to do that because they don't know what they want to achieve. Literally everything bad about Brexit flows from that uncertainty.
David Davis would get got an F on this test.  
The cynical part of my brain thinks that the main principle behind the government's proposals is to engineer points of contention that play well with the Daily Express and the Daily Mail.   Let's imagine that David Davis concedes on the cut-off date (which he surely will). He will spin that as a grand gesture and boast about how fair-minded he is. I can already imagine the congratulatory headlines. Let's then imagine that a compromise is made on the wording of the role of the ECJ. That might involve the creation of a new court with a new name but one that will ultimately uphold all ECJ legislation and case history pertaining to citzens' rights.   The UK tabloids will then rejoice that mighty Britannia won the day, even though the EU would be the only side that had actually achieved any of its objectives. In difference to the EU, the UK can never truthfully boast of achieving its objectives because nobody knows what they are.

It's true to say that the UK has upped its game with its proposals for UK/EU citizens rights. I'm actually surprised they managed to produce such a professional document, especially given their history of appalling and embarrassing white papers.  I'm even more amazed that they published it in full for amateur bloggers to pore over and criticise. The fundamental problem, however, remains. That problem, of course, is that the UK doesn't know what it wants and therefore cannot express its desires as policy detail. If the UK can't even agree on a set of principles on something as uncontentious as maintaining the rights of its own citizens how can it expect to formulate meaningful policy on Northern Ireland or non-tariff barriers?

Over and out,

Terry


PS I was going to write a post about the rights the UK Government plans to rescind for EU citizens. That would have been a bit pointless because a) I'm a bit late and b) there are plenty of excellent articles already on the topic.

https://www.freemovement.org.uk/analysis-what-is-the-uk-proposing-for-eu-citizens-in-the-uk-and-eu-citizens-in-the-eu/

http://uk.businessinsider.com/all-the-rights-eu-citizens-in-the-uk-are-set-to-lose-after-brexit-2017-6?r=US&IR=T

https://www.irishtimes.com/news/world/uk/british-citizens-in-eu-fear-being-sacrificial-lambs-post-brexit-1.3136056

PPS The role of the ECJ is extremely important and I will be surprised if the EU budges very far on this. In fact, I'm surprised that the UK doesn't insist on a role for the ECJ because there are countless cases where the court has enforced the right of UK citizens to be treated in a non discriminatory way. It's almost as if they don't care about their own citizens living in the EU and are prepared to sacrifice their own people to make a cheap political point. Here's an excellent link about the role of the ECJ in securing the rights of UK citizens living in the EU27.

PPPS I don't know how long it takes to appoint a court, set out the legislation it will uphold, list the case history it will consider, appoint judges, and define its working processes. I'm guessing David Davis thinks this can be done in the blink of an eye.   My guess would be at the other end of the spectrum.   Really, he should move on as quickly as possible to the rest of the exit negotiations because they are more important to the UK's immediate prosperity. Arguing about the rights of citizens is just a mean-spirited exercise in wasting time.

13 comments:

  1. I have never really understood the apparent hatred and contempt that many of the little Britainers have for the ECJ. As you say, it has often upheld the rights of British citizens and even the British government.

    It was, and recognisably still is, to some extent a British creation.
    Few seem to even understand that it is not an EU institution.

    Round the pub ( to which I have managed to return, purely in the interests of research you understand.....) nobody really knows what it does, but many are quite certain that it shouldn't be doing whatever it is.

    I may have to stop asking those sorts of questions in case I get barred. There's nowhere else to go in this awful weather!

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    1. It is often confused with the ECHR so maybe that is the issue. Even that is confusing because human rights ought to be uncontentious. This kind of irrational hatred is why Brexit will definitely happen - a good proportion of the population really believe they will finally be free when the UK leaves the EU. Free from what?

      Best not get barred from the pub. It is the best place to go when it rains.

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  2. I'm lost.

    The UK recognises that there will need to be a supranational court.

    Presumably they recognise that it will be a court to which all EU/EEA nations will have access.

    Such a court exists.

    But they insist that this court, already established, staffed and loaded with precedent cannot be that court.

    A new one has to be set up just for Brexit.

    Is this due to some sort of contrariness or British superiority complex?

    I imagine that it difficult for Davis to set out the objectives that he wants to achieve in any aspect of the Brexit negotiations for the simple reason that his cabinet, his party, their parliament and Britain in gerneral cannot agree what these objectives should be.

    What does Britain want at the end of the negotiations?

    Do you have any idea?

    I don't.

    Nor does Davis.

    Good to hear that you are back at the pub EN. Bet it was quiet without you!

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    1. The proposal is quite vague about how Switzerland and the EEA nations outside the EU will be managed but it hints a similar proposal would include those nations. That isn't unreasonable but nobody has really thrashed out the detail. The UK would need three separate reciprocal agreements and three separate dispute resolution mechanisms - one to replace the ECJ, one to replace the EFTA court and a third to replace the Swiss/EU committee that oversees the bilateral treaties. That is a lot to set up. They would all need to be concluded by the departure date, yet there is no word about anything except for the agreement with the EU. Davis has made this is as complicated as possible by rejecting all available legal templates.

      I also don't know what the government want to achieve. It's hard to negotiate with someone who doesn't know what they want because it's not clear what conditions will lead to a timely conclusion. The only principle I can see is that a life of poverty outside the EU is the route to eternal happiness in heaven.





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  3. I know this is a bit thick, but might England, for it is they not the rest of us, exit the EU on a deal that means we haven't exited at all? To take the ECJ as an example, I'd have doubted that there was a vote in the country in favour of rescinding from our commitment to it. Yet it is included in our 'withdrawal' statement. Why has that been included in our referendum when it ought to have been explicity stated as a separate question? For it clearly is a separate issue.

    It seems to me that this is going nowhere. Perhaps you could tell me why it is still alive?

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    1. Being strictly logical, a vote to leave the EU means no more than that. The UK could leave the EU but remain committed to the EEA and the Customs Union. That arrangement would repatriate agricultural policy, crime and justice, positions on EU international policy, and a few other bits and bobs. The principle of least effort should have forced the government to adopt that path because it would have satisfied the strict requirement of the referendum outcome while also exposing the UK to the minimum possible risk. Instead, the UK chose the equivalent of tearing down a house because the owners want to paint it a slightly different colour.

      The way in which Leave politicians have extrapolated the referendum result has been quite shocking. They've managed to say, almost without challenge, that a vote to leave the EU represents a democratic will to do much, much more than just leave the EU. They've tied that up with bonkers notions of patriotism and nationalism straight from the ramblings of Pol Pot. They've also had this mantra of "taking back control" and they've managed to make that synonymous with leaving the EU. Their notion of control, anyway, is extremely limited because it doesn't include the power of influence and diplomacy. This is a weird version of small-minded English nationalism that pretends the rest of the world just don't exist.

      Any extrapolation is a guess based on almost nothing. 52% voted to leave the EU but how many want to leave the ECJ? We'll never know because we never asked the question. How many want to leave the Single Market? We'll never know because we never asked the question. How many want to leave the Customs Union? We'll never know because we never asked the question. Every decision based on an extrapolated "will of the people" is a statistical fantasy.

      Why is it still alive? It is alive because Theresa May laid out some red lines at last October's Tory conference: leave the jurisdiction of European courts, and end the freedom of movement of people. Prior to that, the appointment of Liam Fox last summer set a red line on Customs Union membership because the UK can't sign trade deals and remain a member. There is significant evidence that the consequences of those positions were not understood at the time. Last autumn, for example, the cake-and-eat-it was still a popular meme: there really was a feeling at the heart of government that the EU would capitulate to the UK's demands on FoM. My take is that they viewed FoM as a policy detail rather than a fundamental principle (despite the 4 freedoms being at the centre of the Treaties of Rome way back in 1957). "You can prove anything with facts", was the UK's formal retort as it prioritised raw xenophobic emotion over rational policy based on achievable outcomes.

      We are where we are due to a series of unforced category errors. The appointment of Liam Fox has always meant the UK is going to leave the Customs Union but it took 5 months for the penny to finally drop at May's Lancaster House speech. Ending FoM and leaving the ECJ were further unforced errors at Tory conference. The consequences were only spelled out 4 months after the principles were spewed out to the public.

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    2. May cannot roll back on her red lines now because that would make her look foolish. David Davis can hardly roll back on them either because he went along with them every step of the way. Liam Fox can't roll back on them because he would be out of a job if he did. Boris Johnson probably could roll back on them but only because nobody trusts anything he says.

      The UK is kind of stuck on its current course. The government made a series of rash statements without first understanding any of the consequences or what those consequences would cost or how practical they were to achieve in any given time-frame. In saner times, they would have been held to account for their stupidity. We should have expected the media and the opposition in parliament to have pointed out the folly of the government's course. They either failed to do that or were complicit in the errors. Labour and The Daily Express were complicit. The Guardian and the BBC, in my view, just spectacularly failed.

      This can only end after at least two changes of Prime Minister. If May falls she will be replaced by another Tory who will attempt a slightly different version of the same thing. They will be hamstrung by the ticking clock: this is, after all, too late to fix. If they fall then Corbyn might get a go with another modification of the same path. That will not end well. It will take someone completely fresh, untainted by all previous attempts at Brexit glory, to stand up and tell the country that they cannot achieve what they set out to achieve. That might never happen because by then it might be too late. Besides, who would stand up and do that?

      I also think this is going nowhere except for years and years of uncertainty. It ought to die but it is spectacularly resilient due to the failures of the institutions that are essential for democracy. Worrying times.

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    3. Brilliant summation. That should be a post on its own.

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    4. Thanks! Might just do that.

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    5. Regarding the Department for International Trade...

      It seems to me that continuining membership of the customs union wouldn't necessarily invalidate the need for a dedicated trade dept, as long as that membership was clearly to be transitional. Indeed, if we're to leave the CU at all, doing it by a transitional deal seems like the only realistic option.

      This gives the DfIT purpose - negotiate all those trade deals, to activate when the transition period ends.

      The problem for May, Fox and all the rest is they don't have the time to manage a transition. A five year period starting at the end of negotiations takes them well past the next general election. And five years is awfully tight to negotiate ONE comprehensive trade deal anyway, never mind up to 150.

      They are aiming to be out of the EU and anything that looks remotely EU-associated when negotiations end.

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    6. You're quite right about the transitional deal. A transitional deal would allow the UK to sign trade deals that would start at the end of the transition. They can't even begin negotiating those deals as a member of the Customs Union but they could if the UK formally left but temporarily retained all of its conditions.

      There's definitely a problem with timing. Early versions of the EU's negotiating guidelines set a 3 year limit on the transitional phase. That limit was removed from the final version but it gives a flavour of their thinking. 3 years is a very short time. It's worse than that, though, because the UK can't seriously negotiate with anyone until it has stabilised its WTO schedules and reached a final FTA with the EU. That will take years and years. Any hopes of even just treading water are totally misplaced.

      There seems to be a ferocious debate in the government about the need for a transitional phase (they euphemistically and wrongly call it an implementation phase). It looks like Hammond sees it is a necessity, while Fox just wants to get on with his job. This is a dreadful position to be in: one years has passed and even the most basic questions are still unanswered. I think the aim to be right out of the EU asap has been tempered by the election result. Hammond, for example, still has a job.

      What a mess.

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  4. Excellent stuff, people! The only thing I have to add, really, is to stress that the Brit side appears to be really clueless in its approach: not only does it not know what it wants, it doesn't seem to be aware of the EU's clearly stated essential principles. At least we know not to worry our pretty little heads about what it is they want or are trying to achieve, because we know they have no cogent idea what those might be, and have no thorough or correct understanding of the present situation either.

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    1. They really have no clue. You're quite right: the UK can't decide on its own objectives, while remaining willfully ignorant of the EU's. A truly shocking state of affairs.

      I noticed something in the last week that makes it all even worse. The UK has started rehashing the ideas that were buried after EU rejection. For example, sectoral deals are back in the headlines. The EU rejected that firmly last autumn and the idea died an inglorious death. But now it's back with Hunt and Clark arguing about sectoral deals for pharma in the FT. Has the EU changed its mind? No. Barnier had to reject it all over again. It must be tiresome for him but that's his job, I suppose.

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