Friday, 2 June 2017

Addicted to Brexit: The 12 Steps To Confusion

I have to say that I really enjoyed my recent trip down memory lane.  It was fun to revisit some of the stories gustily delivered by the principle actors at Theatre Brexit.  In fact, it was so much fun that I thought it would be a right old laugh if I dredged up the 12 point plan that still forms the core of the Tory manifesto on Brexit.  Just in case you've forgotten about the origins of the 12 point plan, I should clarify that it was the summary of the UK Government's White Paper on Brexit.  Most of the MSM didn't bother with the White Paper itself and merely reported the points outlined in the summary.  In fact, pretty much ever major newspaper reported their take on the summary but not too many really dug into the hideous stench that lay at the core. Being an arch contrarian I naturally opted for a lengthy post about the woeful quality of UK Government communications in the 21st century.  The problem we all face is that the 12 point plan remains the only plan that the public at large have ever read or heard about.  Meanwhile, neither the UK Government nor the Tory Party have revealed any further detail about their plans for leaving the EU.  Astonishingly, just 3 weeks out from the start of the exit talks, it remains the case that the 12 point plan is all that we collectively have.  Let's give those 12 points a really good kicking.  Enjoy.
1. Providing certainty and clarity – We will provide certainty wherever we can as we approach the negotiations.

Hmm, certainty and clarity.   Certainty and clarity are two different things so let's break it down to make it easier for our overheated brains.  What remains certain about Brexit? Well, right now we don't even know for certain who will be the Prime Minister.  Will it be Theresa May? Will it be Jeremy Corbyn?  If Theresa May wins but performs poorly will she be deposed by her own backbenchers?  Will she use a fresh mandate as an opportunity for a Cabinet reshuffle?  Will David Davis still be in charge of Brexit?   Even this basic level of certainty has been thrown into doubt by Theresa May's bizarre decision to have an election, even though she said at the time of publishing the 12 point plan that she would not even consider an election before the end of the statutory 5 year term.  Bonkers.  

Clarity is a bit different from certainty because I could be certain about something but keep it a secret from everyone. You say furtive, I say I don't want to reveal my negotiating hand, let's call the whole thing off etc etc. What secrets are being kept from the UK electorate?  I could go on forever on this theme but I'm just going to pick immigration policy as a good example.  What plans are in place to reduce net migration to the tens of thousands?  Will the UK operate a special immigration system for EU nationals or will all immigration be rolled into a single process?  Will there be a quota?  Will successful migrants be able to apply for permanent residence?  If so, what conditions might apply?  How will the UK agriculture industry recruit low-skilled seasonal labour?  Will there be a special work visa?  How much will the visa cost?  How long will it last?  What conditions must be met to qualify as a high-skilled worker?  Will that be different for EU nationals?  Will EU nationals have to demonstrate English language skills to be allowed to work in the UK?  Will their qualifications still be recognised?  Will the UK propose a system of  mutual recognition of professional qualifications with the EU? If they don't do that how will the NHS carry on recruiting doctors and nurses and how will universities employ specialist researchers and academics?  This is complicated stuff but no answer exists to of these questions.  The Tory Party have an ambitious goal of reducing immigration but no plan whatsoever to make it happen.  They haven't even worked out how much any of this will cost. Isn't that the point of political manifestos?  Clarity would mean I don't have to write long paragraphs with a boring stream of questions. Clarity would mean there is a documentation I can download from the internet and peruse at my leisure.  Brexit is clear as mud.

2.Taking control of our own laws – We will take control of our own statute book and bring an end to the jurisdiction of the Court of Justice of the European Union in the UK

I've posted quite a few times about the UK's lack of preparedness for what happens after leaving the EU. I've seen nothing to change my view that a legislative void beckons unless the EU agrees to a transitional phase of continued EU membership.   You're probably completely bored reading about this but please don't worry because I have some brand new crises to illustrate the legal nightmare that awaits.  

Withdrawing from the ECJ means that the UK also must leave the Open Skies Initiative.  As a consequence, UK airlines will no longer be able to fly between two points in the EU. If you've read about UK businesses moving their operations to the EU then it will be due to the UK leaving some initiative or other operated by the EU.  This is serious stuff but if that wasn't calamitous enough then withdrawing from the ECJ also means that the UK is no longer governed by the European Aviation Agency.  UK airlines will only be able to land in the EU if the UK reaches an agreement on mutual technical oversight of aviation safety. How might that be achieved without accepting the jurisdiction of EU courts?  I don't know the answer to that so we just have to hope that David Davis has a secret plan.  Can it get any worse?  Yes, of course it can.  The ability of UK airlines to fly just about anywhere is a consequence of mutual agreements between the EU and third parties.  Every single one of these contracts will need to be renegotiated, checked and ratified by national governments around the world.  The FT calculated 750 agreements that need attention before the UK leaves the EU.  This is a difficult task made even more difficult by the lack of a plan.
3. Strengthening the Union – We will secure a deal that works for the entire UK- for Scotland, Wales, Northern Ireland and all parts of England. We remain fully committed to the Belfast Agreement and its successors.

That didn't happen, did it?  Every reader of this blog will be more knowledgeable on this topic than I am so I'm just going to shut up and move to point 4).

4.Protecting our strong and historic ties with Ireland and maintaining the Common Travel Area – We will work to deliver a practical solution that allows for the maintenance of the Common Travel Area, whilst protecting the integrity of our immigration system and which protects our strong ties with Ireland.

Reciprocal rights of UK and Irish citizens predated EU membership so this should be a fairly simple process of dusting off all the old legislation and bringing it back to life.  Will it be that simple?  I see that you're way ahead of me here because it will be anything but simple.  Irish nationals are now EU citizens and their residence in the UK will be governed by the agreement reached between the EU and the UK.   The EU has made clear that the Brexit agreement will be under the jurisdiction of the ECJNo matter which way Theresa May turns there's the EU staring right back and waving a massive legal document in her face.  The only way that this could ever become simple would be if Theresa May rejects all proposals for mutual rights of UK/EU citizens and then attempts a bi-lateral agreement with Ireland.  Good luck with that.

5. Controlling immigration – We will have control over the number of EU nationals coming to the UK

 It's true that the UK will have control over the number of EU nationals coming to the UK but how will that power be exercised?  I have no idea.  Theresa May has no idea.  David Davis has no idea.  If they had a plan they would have estimated its cost and put it in their manifesto.  Just as a side note, the UK has had complete control over the number of non-EU nationals coming to the UK since the invention of the modern passport. Did that work? No. 

6.Securing rights for EU nationals in the UK, and UK nationals in the EU – We want to secure the status of EU citizens who are already living in the UK, and that of UK nationals in other Member States, as early as we can.

This is the sum total of Tory policy on protecting the rights of UK/EU nationals.  The EU, meanwhile, has published their policy to a level of detail that exceeds the attention level of amateur bloggers.  I was hoping that the Tory manifesto would have addressed the EU's policy statements because it will be the single most important decision made in the Brexit process.   We have no idea what rights Theresa May intends to grant to EU citizens and even less idea how those rights will be upheld in perpetuity.  To be honest, she probably still believes rights can be granted unilaterally.  The Labour Party also think that so maybe that's the kind of chat they have in Westminster bars late at night. The mind boggles.

7. Protecting workers’ rights – We will protect and enhance existing workers’ rights.

I'd be inclined to believe this if Tory politicians didn't regularly pop up in the news with their ultra-libertarian fantasy of turning the UK into a low regulation tax haven

8. Ensuring free trade with European markets – We will forge a new strategic partnership with the EU, including a wide reaching, bold and ambitious free trade agreement, and will seek a mutually beneficial new customs agreement with the EU.

I'd be inclined to believe this nugget if David Davis didn't keep threatening to walk out of the upcoming divorce talks.  That was actually a lie because I know for a fact that the upcoming divorce talks will never mention trade in any form at all.  I'm not a genius or anything like that and I'm certainly  not privy to a secret source of insider knowledge.  All I did was open a web browser and read some text in clear English.  I did it last autumn, then I did it again at some point during the icy winter and I did it again as I wheezed through a bout of hayfever in early spring.  Each time the  message was the same:  first divorce, then trade.   If that wasn't clear enough the EU also published a series of policy documents on the Brexit negotiations.  These documents describe the legal powers granted to Michele Barnier and his team of negotiators.  They have not been granted any legal powers to discuss a trading relationship with the UK.  Do not expect any discussion about trade beyond a statement of intent to discuss it at a later date.  Those trade discussions will then be carried out by a different team with different powers and ratified by different democratic mechanisms.  Oh dear.

9. Securing new trade agreements with other countries – We will forge ambitious free trade relationships across the world.

Great, but when will that happen?  It definitely won't happen any time soon.  Nobody will sign a FTA with the UK until a) the UK has legally exited the EU b) the UK has agreed a FTA with the EU c) the UK has sorted out its WTO tariff schedules and resolved all subsequent disputes.  How long will that take?  5 years?  10 years?  I don't know and neither does David Davis.

10. Ensuring the UK remains the best place for science and innovation – We will remain at the vanguard of science and innovation and will seek continued close collaboration with our European partners.

I don't see that happening.  Does anyone think Brexit is a positive for science and innovation in the UK?  Will leaving Horizon 2020 and ERASMUS help?  Will making it harder and more expensive for European innovators to move to the UK be of any assistance?  Will the relocation of the European Medicines Agency to EU soil be a boost? Will UK technology companies benefit by not being able to participate in the EU Digital Single Market?  What will happen to the UK nuclear industry when it removes itself from EURATOM?  Will it be a positive when there is no agreement in place to move nuclear fuel or hazardous chemicals? Probably not.

 11. Cooperating in the fight against crime and terrorism – We will continue to work with the EU to preserve European security, to fight terrorism, and to uphold justice across Europe.

Hello, hello, what do we have here?  What?  The European Arrest Warrant comes under the jurisdiction of the ECJ?  Hmm, it's actually more complicated than that for the UK.  The European Arrest Warrant is indeed enforced by the ECJ and has been ever since the ratification of the Lisbon Treaty.  The UK, however, negotiated over 100 opt-outs on crime and policing policy.  This was all agreed so that the treaty wouldn't end up being put to a UK referendum (the 2011 European Union Act meant that all treaty changes would be put to a UK referendum, effectively stifling all EU reform).  I mention this because one of the opt-outs was the EAW. Theresa May, then Home Secretary, initially argued that the EAW didn't provide sufficient safeguards for the arrest of UK citizens.  She then changed her mind and decided to opt back in to 35 of the opt-outs.  One of those, and easily the most controversial, was the EAW.  Parliament duly voted for the proposed opt-ins and the EAW took force in the UK back in 2014.

What will happen when the UK leaves the EU?   As a member of the EU, the UK had the option to opt out of the EAW but actively decided that being a participant in the EAW was to our advantage.  As Home Secreatary, it was Theresa May who argued for membership of the EAW. Is she going to argue now that the UK is better off removed from the EAW?  I don't think she is going to do that but to remain a participant the UK will need to accept the jurisdiction of the ECJ.  This time, however, she will have no power or influence over EU policy makers.  Is it still as attractive?  No.  Hmm, I think that means the UK will need to leave the EAW.  But we want to stay in.  Don't we?  Do we want to go back to the days of Costa del Crime?  I don't know any more.  I'm just glad we're nearly at the end because my head is starting to hurt. That's what Brexit does to you.

12. Delivering a smooth, orderly exit from the EU – We will seek a phased process of implementation, in which both the UK and the EU institutions and the remaining EU Member States prepare for the new arrangements that will exist between us.

Make no mistake, the UK needs a phased implementation because it hasn't done any of the work required to stand on its own two feet on 1 April, 2019.  The EU, of course, has written down all the conditions of a phased transition.  Guess what?  They involve following the legal template of EU membership:  the four freedoms, the ECJ, budget contributions etc.  I ask everyone to read over point 2) one more time and decide if there is a logical problem.

This can all be avoided by voting Yes in a second independence referendum,


PS I opted for another post-modern essay title this time with cunning use of a colon.  Well, I liked it.

PPS I've blogged about this for 10 months yet fresh conundrums present themselves every single time I think about Brexit.  The mess appears to get bigger with every passing moment I spend on this nonsense.  Maybe I should stop thinking about it.  Maybe I'm the problem.  Maybe the pile of problems is caused by people like me. Stop! This is all getting too post-modern for my taste.

PPPS Leaving EURATOM makes no sense at all because EURATOM is completely independent of the ECJ.  Why leave?  I don't know.  The UK could easily remain a member without crossing any of Theresa May's red lines.   Is it because she was poorly advised?  Or because she misunderstood or rejected the advice?  I don't know. 


  1. The enormous complexity of Brexit is likely to result in complete disaster for the UK. The politicians either do not understand or wilfully ignore this. In the case of the Tories, some of them want disaster, because that provides the context for a neo fascist take over.

    Another side effect of the complexity is that it is very hard to engage people in discussion about it. They rapidly turn off, get irritated, or simply refuse to believe the facts because they are 1) difficult and 2) scary.

    Try discussing this stuff round the pub. As I said on the last post, everyone just wants you to shut up and stop disturbing their preferred position that it will all be ok.

    I despair.

    1. I also think that very few people are interested in this. It is complicated and dry and boring but it is also terrifying and throws up all sorts of logical conundrums. Tory pledges on this are a mixture of the non sequitirs, undeliverable promises, and guarantees of instability. They are never asked about any of this. Is it because journalists are equally as clueless?

      The lack of engagement means a lack of democratic accountability. The next government will be able to do whatever it wants and just say that it needs to keep its intentions secret. Terrifying stuff.

  2. Reality will kick in shortly after this pointless General Election has concluded. May and Co simply don't have a clue what they are doing regarding Brexit. Neither does Labour of course. The poor electorate will soon discover that the world does not stop turning and that hiding their heads in the sand is not a constructive course of action.

    Given the complete lack of preparation you'd logically think that a transition period of several years would be a good idea. However, the bonkers Tories know this will split their party.

    1. The EU put a limit on the transition period of 3 years. A transition period is actually policy in the White Paper but they also made other promises that they will break if they agree to the EU's conditions of a transitional phase. They haven't laid out their policy on this. We have no idea what they intend. They're just going to make it up as they go along but each decision takes time. That is bad because the EU will be able to waste time by confusing the EU negotiators with extra layers of detail and legalese.

      I suspect that the consequences of leaving the EU will be slow to take root. I don't even know if the electorate will notice it happening. One day they'll realise that Germany is so much wealthier but by then any excuse could be used to explain that. Oh dear.

  3. The more I read of your detailed analysis of the Brexit débacle, the more I realise that there isn't a hope in hell of most of that stuff being done on time.

    It seems not unreasonable to assume that the UK will be at the mercy of the EU for many years. And of course we don't know how affable the EU will be.

    I imagine that they want to try to get as good an outcome as possible for them, if not for Britain. The UK is a large market and they won't want to lose it.

    But Macron has made it clear that there must be an element of consequences... "this is what happens when you stop being in the club".

    It also seems to me that, despite all the regulations and rules surrounding the process, there is bound to be a measure of leeway at the disposal of the EU negotiators, which, of course, will later have to be backed by the EU governments.

    One of the things that worry me is the rather obvious fact that May is not a popular person. She probably hasn't got it in her to make herself likeable to people. She comes over as cold, probably arrogant and uncomfortable with other people. Rumour has it that even her colleagues and staff don't "like" her. The "bloody awkward woman".

    I know, of course that she won't do the actual negotiating, but if the UK needs to do some crawling to get concessions, she hardly seems to be the best suited person to be at the top of the negotiating team.

    And, after having told us over and over that she wouldn't call an election, she did. And she did because she said that she wanted to have a strong mandate when negotiating with presidents, chancellors and prime ministers. OK, she won't actually do much of that, and in any case, her mandate was a referendum in which the English and Welsh voted to leave the EU, but that was, nonetheless, what she said.

    Polls can be dreadfully wrong, as we all know, and in any case, that a week is a long time in politics; a lot can happen in the next 5 days (indeed one of her candidates has just be lifted by the police for electoral fraud), but that large majority is starting to look rather less than certain.

    If she fails to get the strong mandate that she demanded, if indeed, she ends up with fewer members than she has now, can she possibly go to Brussels with her head held high? Will not her undoubtedly many enemies in the Tory Party not want her head?

    1. There is no hope this will ever be done in time. The distance between the UK and the EU is so huge right now that even sorting out the least controversial issues of the divorce seem almost impossible. Sorting out trade is not going to happen at all. The most the UK can hope for by 1 April, 2019 is a sheet of paper laying out an intention for a future trade deal and some shared goals. The UK, as a consequence, badly needs a transition deal but the conditions for that have been rejected time and time again by Theresa May. She cannot sell that to her own party or to the UK electorate. As a consequence, the UK faces a legal void internally and internationally. This is really serious stuff. It is so serious that no government could survive the turmoil it would create.

      At some point a decision will need to be made because the current strategy is untenable. Either we go for hard Brexit and the government falls in the ensuing chaos or Theresa May compromises for a soft Brexit and a 3 yr transition phase and she is merely deposed by her own backbenchers. If she is deposed, the next PM would just face the same choice. I think that points to an eventual compromise from the UK but it will be too late to engineer a beneficial solution. That needs to be planned now. The best case that I just outlined will not be a very good outcome. It is only "good" because it avoids the hardest of Brexit.

      The EU has made clear that it values the long-term integrity of the Single Market over any short-term economic pain. They are not going to compromise the rules of the club just for the UK. German industry has strongly backed this idea, too. They are known for their long-term strategies and here is another: they believe they make more money in the medium and long term if they preserve the advantages of the EEA. It is that simple. They do not want the EEA compromised with a fudge for the UK because it will undermine their ability to generate profit.

      The EU has moved on. We're seeing that right now. Macron's election signals a new Franco-German partnership, the Eurozone is finally starting to grow, Germany is booming, the Greek crisis seems contained. There is talk of Poland joining the Euro, talk of Iceland joining the EU, Norway is forging new agricultural deals with the EU, Trump's weird behaviour has emboldened the EU to believe it should now take the lead.

      May is a terrible campaigner. Will she be deposed if she wins but does badly? I don't know if that will happen but the threat will always be there. That definitely weakens her position with the EU but that hardly matters because she has no negotiating position. She can't backtrack on her promise to leave the auspices of the ECJ, leave all EU technical agencies, leave Euratom etc. There isn't anything to negotiate because the outcome is already clear: neither side agrees on anything. The only thing left to decide is how the UK will deal with the ensuing chaos of a hard Brexit. That is not a problem for the EU so we can't expect any help there.

      How will the politics play out domestically? That's what really matters. Only with a new leader and potentially the fall of the government can any real progress be made to sort out this mess. That takes us nearer the next election rather the current one. In the meantime, there's the steady drip of delayed investment decisions, EU workers returning home, the currency crisis, UK businesses moving their EU business team to EU soil. My naive attempt at game theory above points us to an eventual compromise but by then it will be too late. The best outcome is to abandon this but the next best would be to plan right now to join EFTA and remain in the EEA. None of these will be possible if the UK has to reach an emergency compromise.


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