Sunday, 18 June 2017

The State That We Are In

The moment we've all been dreading has finally arrived.  That's right, we're sending David Davis and his cohorts to begin negotiating the end of his political career and our livelihoods.  On this momentous occasion in the history of international relations I think a quick summary of the situation might be in order.  Let's face it, we're in a right old state.

As I write this pitiful précis the UK has no formal government and no hint of a plan.  To make matters worse a spate of resignations has left its negotiating team in disarray.  Despite all that our dear leaders plan to carry on as though they know what they are doing, even when they clearly don't.

The Prime Minister held a General Election solely to build democratic consensus for the hardest possible Brexit. She failed to get that consensus but decided to carry on as though nothing had changed.  The only tangible conclusion we can draw from GE2017 is that the specific flavour of Brexit proposed by Theresa May is not supported by the public.  It is not clear which flavour, if any, would find majority support but we know for definite that hard Brexit is not one of them.  The rational response would be to present a fresh set of options to parliament in order to buy in consent now that will be sorely needed later. There is nothing rational about the way Brexit has been managed so far.

Economic indicators since GE2017 have made clear that markets are much happier now they have reason to believe that hard Brexit is dead.  The problem is that Theresa May's coalition will  fall apart on any other path except for hard Brexit. The bizarre logic that arises from clinging on to power is that May will carry on the same path she was on prior to the election, despite the electorate having firmly rejected her flimsy plans. Hard Brexit might be theoretically dead because there is no democratic consensus for it but it isn't yet over in the eyes of May or anyone in her shaky cabal.  She fully intends to negotiate a position that will struggle to gain parliamentary support in the mistaken belief that she will not require that support.  The problem for May is that Brexit not only requires parliamentary support but also market and business support. A run on the pound followed by money taking flight to the safety of the Swiss Franc and the Euro would be enough to bring almost any government to a swift conclusion.

Special Brexit remix of "What's Your Flava?" by Bo Selecta hitmaker David Davis.

The UK has published nothing to formally indicate its red lines or its goals.  In fact, the UK has so far failed to participate in the formal exchange of briefing papers with the EU.  Given the disarray at the heart of UK non-government it would be surprising if they were anywhere near that level of preparedness. As it stands the UK will be limited to saying "yes" or "no"  to proposals put forward by the EU. I think everyone knows that is not the route to a successful outcome.  It's worse than  that, though, because Theresa May's pre-election red lines and her coalition deal with the DUP mean that  the UK can only say "no, nein, non".  The UK has literally nothing to negotiate because it failed to build consensus around an achievable target underpinned by a set of unambiguous principles. If you keep your cards too close to your chest sometimes you forget what's written on them.

The DUP will withdraw their coalition support for anything but the hardest Brexit. It will be impossible for David Davis to agree to almost any proposal put forward by the EU because it will violate the conditions of the DUP coalition and lead to the end of the government.  The conundrum is that the "negotiated" settlement that keeps the DUP on board will not ultimately find support from pro-EU Tory backbenchers.  Tory dissent would be manageable if they had a large majority but right now they don't have any majority.  Worse still, the Prime Minister looks weak and has lost the confidence of her own flock.  There appears to be no achievable outcome that isn't utter disarray.

The UK is woefully unprepared for what happens after it leaves the EU.  For example, the legislative void that awaits the UK is to be averted by the Great Repeal Bill, an enormous legal undertaking that will attempt to rewrite all UK legislation without reference to any European court, treaty or technical agency.  Unless this can completely clear the House of Lords and the House of Commons in time the UK will cease to function as a developed nation. To be honest, there is no chance at all that this will be ready in time and it doesn't look as though there has been much effort to achieve the deadline.  The UK's trading relationship is also in jeopardy.  On 31st March, 2019 all trading relationships enjoyed by the UK will cease. There will be a sudden introduction of tariffs and quotas on almost everything leaving and entering the country. Where are the customs officers, the electronic tagging systems, the infrastructure required to raise taxes or separate goods at their final destination from goods in transit? Actually, forget all that for a moment because the shock to the economy will be so painful it is hard to see how Sterling can remain stable. Foreign exchange dealers have already sent a shot across the bows but what will they do when confidence in the UK's ability to sell any good or service to anyone anywhere is completely undermined?

The UK's looming legislative void is further complicated by the need to sign more than 750 legal agreements with 168 nations just to tread water.   The reason behind this is that every single agreement that the EU had with a third party will be void for the UK after it leaves the EU.  One example might be the continuing presence of  UK nationals in sunny Switzerland.  What rights can I expect in a new treaty agreement?  Will there even be a new treaty agreement on continuing rights of UK/Swiss citizens?  This ought to be a top priority for Boris Johnson but he hasn't even once acknowledged the problem at hand.  To be honest, I'm not overly confident that the Foreign Office will get to grips with this in time.  Besides, we all know that Boris Johnson is the top priority for Boris Johnson.

The UK has already capitulated on the order of the talks.  The EU has maintained that trade talks can only start after the divorce talks have concluded.  The UK, of course, signed up to all of that when it agreed to the adoption of Article 50 and the legally binding processes that would be followed by any nation exiting the EU.  Nevertheless, as recently as a few weeks ago David Davis was still saying that the order of the talks would be the "row of the summer". Instead of picking winnable battles he opted to relentlessly batter away at a hopeless cause.  This makes him look stupid and weak but worse than that it makes him look as though he is entering the talks in bad faith.  Instead of building trust and consensus he has opted to send slogans straight to the front page of the Daily Express. And now he has lost.  What's next?  It might be the role of the ECJ, it might be the definition of permanent residence, it might be conditions of a transition phase.  It doesn't matter because every time he says "no" he takes the UK closer to the brink, while every time he says "yes" he takes the UK closer to the brink. Chess players call this Zugzwang.

The EU has published its negotiating guidelines in pain-staking detail.  It put together a working group, iterated on proposals, and sought democratic consensus from the Council of Ministers and the European Parliament.  The EU has also appointed an experienced negotiating team and granted them the legal powers set out in the guidelines.  Are we hearing about disarray, disunity and resignations from the EU side?  No.  Are they clear about what they are trying to achieve?  Yes. Given the agreed legal limits of the negotiating team is there likely to be EU consensus on the outcome?  Yes.  It all looks so easy when political dogma is removed from the equation.

The EU will regularly publish the progress of the negotiations.  If David Davis was hoping that a cloak of secrecy would cover the hopelessness of his situation then he got it wrong.  We will be treated to a real-time glimpse of what it looks like to knowingly take one of the richest countries in the world to the brink of economic and democratic collapse.

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


PS I honestly can't see any positive outcome for Brexit.  Literally every path ends up in parliamentary deadlock but that won't do because the clock is ticking down to legislative chaos.  It doesn't matter if May is deposed or the coalition falls apart or Corbyn attempts his own coalition or an election is called and Corbyn wins it or an election is called and a different coalition takes power.  None of that matters because the fundamental problem remains the same:  it is impossible to deliver an outcome without first describing it and building consensus around that description.  Unless somebody can do that Brexit will either be cancelled just before the brink or it will go to the brink.   I don't mean to be too apocalyptic but this is a genuine challenge for the UK democratic process.

PPS David Davis has confirmed he will turn up in Brussels for talks but I'm not sure there is much point to that because he has no authority to negotiate anything and everyone knows that.  I publish my articles on a timer so anything might have happened in-between pressing the button to publish and actual publication.

PPPS Nothing serious is going to happen until the German election is over and the UK have something resembling a stable government. That's why tomorrow's talks are mainly lunch, a mysterious meeting called "working groups" and a press conference.

Tuesday, 13 June 2017

Everybody In The Labour Party (I Hate)

 I'm not usually stuck for words but I find myself completely lacking the vocabulary to express my anger at the current state of Brexit. I'm obviously angry at the Tory Party for creating this entire mess but I've made space for a special kind of contempt for Corbyn and McDonnell. In fact, my contempt for the inner circle dictating Labour policy is even greater than it is for Jack Straw. The election presented the Labour Party with the perfect opportunity to act as a genuine opposition to clearly harmful Tory policy but what have they done? What they have done? Well, they're propping up Theresa May and enabling her and her spineless puppets to carry on with the most extreme form of Brexit.

During the 2015 General Election both Labour and Conservative campaigned on a pro-EU policy. The EU referendum result pushed both parties to immediately reverse a policy that had been maintained without question over a period of several decades. They did this without properly asking their membership or their MPs. The Labour Party didn't even bother debating Brexit at their recent party conference. What kind of democracy is this? This is the unstructured logic of taking back control. It's bizarre to think that the Prime Minister and the Leader of the Opposition both campaigned to remain in the EU but are now fervent supporters of leaving the EU. In these circumstances it was right to have an election on the topic. In fact, it was the only democratic response. Obviously, they should have asked the electorate for their support before starting the exit process but that's the crazy world of Brexit for you. It might have been better, too, if the election had properly discussed the options and costs of various different approaches to leaving the EU. Oh well, another one will be along soon enough.

The electorate have rejected the form of Brexit proposed by Theresa May. She was quite clear that she sought a mandate for her policy and took the view that an increased majority would signify the will of the electorate. She didn't get that mandate but she's pressing on regardless. How can she do this? How is this possible in a mature democracy? After all, there are plenty of pro-EU MPs on the Tory benches who could easily derail any government that attempts to walk away from the Brexit talks. In fact, the Scottish Tories alone should be enough to bring hard Brexit to an end. In normal times this would result in government defeat and quickly lead to a vote of no confidence. Are we in normal times? No, because there is nothing normal in the illiberally stupid views of Corbyn and McDonnell. Instead of delivering a bloody nose to the government they are lending their support to the hardest possible Brexit. On their current path they will go down in history as the party that took the United Kingdom to a legislative and economic abyss.

The Labour manifesto on Brexit was vague and confused and, depending on your view, promised nothing to nobody or everything to everybody. It talked elliptically about "access" to the Single Market without ever specifying how that might be achieved. What about immigration policy? Nothing. Customs Union? Well, it is to be a "jobs-first" Brexit. Does that help? How about a policy on the continuing role of the ECJ and European technical agencies? Zilch. Farmers?  Dunno but something about "benefits" and "putting the economy first". Apart from a few pages of cheap sloganeering, it presented a world in which Brexit was barely important and was just another issue like council housing or police funding. None of this should be too surprising from the party that didn't even bother to debate Brexit at party conference. Did I mention that already?  From their relaxed attitude it would be easy to believe that Labour have a more positive view of Brexit and that they have left more options on the table. Anyone thinking that would be completely wrong.

It's easy to conclude that Corbyn is no fan of the EU. In fact, we only need to compare his limp efforts during the EU referendum with his animated campaigning during the General Election to understand that he doesn't much care for EEA membership. Viewing the entire world through a prism of outmoded class politics means he can only ever see the Single Market as a political fix for greedy capitalists.  He's also a politician so he's probably arrogant enough to think that he can single-handedly make it all better if only the UK would give him a chance to implement his policies on social and economic reform. Maybe he will make it all better (no, he won't) but eventually he'll be replaced by a Blairite or a Tory who will proceed to undo everything he just achieved. In this regard EU membership is the single mechanism that protects the UK from its own bungled attempts at legacy democracy. It provides a set of inviolable standards that are granted in perpetuity and cannot be reversed by the sudden swings from left to right and back again that are delivered by the FPTP system. Fall out of the EU and that is all gone.  In reality, the EU is the closest the UK will ever get to a constitution that sets out the rights and obligations of citizens and state.

We don't need to look for behavioural signals from Corbyn in order to conclude that Labour will support the Tories in facilitating hard Brexit. They didn't write down their policy anywhere but it certainly all dripped out over time. First, Kier Starmer made it perfectly clear that the ECJ would have no role in resolving disputes arising from citizens' rights. I can only guess that he means the UK will completely leave the jurisdiction of the ECJ. That position is perfectly aligned with Tory policy. If the UK leaves the jurisdiction of the ECJ then it also leaves  every EU initiative from Horizon 2020 to the Open Skies Agreement. Yup, that is also perfectly aligned with Tory policy. How about the Single Market? Well, McDonnell said he would never accept the freedom of movement of people. He said that about 9 months ago and he's still saying it now. That's right, a Marxist in the Labour Party is prepared to give more rights to capital than to working people.  Is that also perfectly aligned with Tory policy? Do I need to answer that one?

The Labour Party are useful idiots, which makes them dangerous idiots. If the Tories want to take us back to the 1950s, then Corbyn wants to take us back to the years of socialist reform of the years immediately after the end of the war. I have no desire whatsoever to travel backwards in time. That's bad for me because the gloomy choice of historical decade is all that separates Labour from Tory.

Over and out,


PS Class struggle is a fascinating topic. During Tommy Sheridan's libel trial I had lighthearted discussions with friends in which I would defend Tommy and his honour. I argued that Tommy had been stitched up by enemies he had made in the socialist movement. After all, socialists are always making enemies and falling out with each other. When he won his libel case he stood on the steps outside the court and said something like, "The working class members of the jury found me innocent of all charges". At that point I instantly knew he was guilty because instead of accepting the result as a triumph of the legal system he could only express it through it through the prism of class politics. Objective truth meant nothing in the face of class struggle. If we've learned anything from GE2017 it's surely that class politics are as irrelevant as a dial-up modem.

PPS Why are young people voting for Corbyn?  The one thing he shares with Theresa May is that his worldview is gloomy, depressing and outmoded.  I would genuinely welcome a leadership challenge. 

Friday, 9 June 2017

New Brexit, Same As The Old Brexit

I wanted to do a really short post about how the election result has fundamentally changed the course of the Brexit bus and how life as we know it will never be the same due to the surprise outcome.  Here's a quick summary of my thoughts so far:
Sorry you had to witness that outburst. I do feel better now but also a little ashamed that I let it all get to me.

Before I head off in search of a paracetamol and an emergency ukulele let's just peruse the facts of the situation for a quick second:
  1. Theresa May is still in place. 
  2. There are no real moves to depose her (yet).
  3. Fox, Hammond, Davis, Johnson are all still in place.
  4. Tory policy is still for the hardest possible Brexit.
  5. Labour and Conservative have policies on Brexit that lead to exactly the same conclusion.
  6. Nobody has properly considered the legislative void that follows the hardest possible Brexit. 
  7. The Brexit talks are about to start in 10 days time and the UK is just as unprepared as it was 12 months ago.
  8. Voters do not understand the decisions that are being made on their behalf because the UK's political leaders don't understand them themselves and refuse to engage with the problem.
  9. Alternatives to the UK's current path have willfully been ignored as though they don't exist.
  10. The election was the perfect time to do that but I suppose we'll have to have another now. 
Over and out,

PS Here is a pop song with semi-appropriate song title to help us all calm down and enjoy the weekend.

Thursday, 8 June 2017

Blog Post For A Future Generation

How exactly will Brexit be resolved?  How will all this mess be tidied up so that we can all get on with our lives? What can you expect from the next few years if you have a one-way ticket on the Brexit bus?  How will the next generation react when the harsh realities of Brexit become clear? Will we just end up exactly where we started?  Well, if you came looking for definitive answers to any of those questions you came to the wrong place.  Despite my lack of predictive power I'm going to have a right old go at answering some of these imponderables in a wildly speculative post. Enjoy.

Full disclosure: normally I plan out my posts paragraph by paragraph, exactly the way I was taught to at school. You might not believe it but it is honestly the case that some forethought is involved in these blog entries. This time, however, I didn't actually know what I was going to write in advance of writing it because I really don't know how Brexit will be resolved. Yes, I know, how very apt!  What follows are my thoughts as they happened in real-time.  Let's find out together if planning is a good or bad thing in a kind of internet literary experiment.  Right, that's enough of this meta-blogging.  Let's get cracking.

Catastrophic Brexit

A catastrophic Brexit is the outcome that has been threatened by David Davis on multiple occasions. In this scenario, the UK simply walks out of the exit talks with the EU.   As a consequence, all treaties with the EU and all associated agreements with third parties will lapse on 31 March, 2019 without replacement or extension. Every single one will be void. The UK will cease to operate with any of the international legal relationships that define the developed world. Planes will be unable to take-off or land; the Channel Tunnel will be forced to close; money transfers will cease; the legal frameworks that protect business and consumers will no longer function; nuclear fuel and hazardous chemicals will be stuck in transit; the rights of citizens caught up in this mess will be open to abuse. Normal life as we know it today will no longer exist.

Optimal Brexit per Gove is found at 1.76 Farage. Any more and it's a catastrophe.
This is not a credible option because the chaos it would create would result in the rapid fall of the government. Honestly, I cannot envisage any government surviving this mayhem. Even if David Davis did adopt this strategy there would be enormous pressure on him to alter course before his intentions become reality. That pressure would come from the money markets, it would come from business leaders, lawyers, supermarkets, his own colleagues, farmers, Heathrow Airport, and me. That's right, Terry Entoure would blog about it in the third person and walls will tumble. Ok, a currency crisis would obviously be more effective but in my own mind it would be all down to me and my powerful words. Read them and be afraid, Mr Davis!

Catastrophic Brexit is unlikely to happen because anyone who follows that path will be ousted by the simple rules of power and politics. Does anyone remember the UK's dalliance with the Exchange Rate Mechanism? The money markets started gambling against official Tory policy, forcing the UK to prop up Sterling at great national expense. That policy decision was abandoned after just a few days due to the spiralling costs. Brexit poses far greater challenges than simply propping up a currency so David Davis or his replacement will be forced to compromise and negotiate.  Brexiteers can complain about the democratic will of the people all they want but it won't diminish the power handed to foreign exchange dealers through market deregulation in the 1980s.

Will any of this deter David Davis from carrying out his threat?  I think he is actually stupid enough to think he can walk away from the talks but his successor probably won't repeat the error.

Hard Brexit

A hard Brexit is the offical route of the Brexit bus. It is barely less catastrophic than walking away in a huff because it guarantees exactly the same outcome: the UK would cease to have the international legal relationsips that define the developed world. The problem here is that the red lines of the UK and the EU are irreconcilable. The EU demands that citizens' rights are protected by the ECJ, while the UK rejects a continuing role for the ECJ in any form. In fact, rejecting any role for the ECJ means that the UK cannot participate in any EU initiative from the European Arrest Warrant to the Open Skies Agreement. The EU also demands that any transitional phase be subject to the legal obligations of EU membership, while the UK demands an immediate end to the four freedoms. In addition to these red lines, the UK has some extremely vague policy that has yet to be expressed in the form of sentences and words and punctuation. It will take linguistics academics and behavioural experts years of research to work out exactly what the UK intends across many areas of policy. The Customs Union springs to mind as a good example. Will the UK be in or out or in an exotic macroscopic quantum state? Agreement to vague demands is just impossible.
My slides on superposition Brexit states.  Yup, completely meaningless.
The hard-core Brexiteers want the talks to be conducted in secret. It doesn't take a genius to work out that they don't want a ticker-tape of bad news to undermine their objective of a hard Brexit. That is not going to happen because the EU has published its guidelines on transparency. Instead of secrecy, we are going to be treated to a steady stream of official reports on the progress of the Brexit talks from the EU. The currency markets will respond immediately to any report that the UK will soon leave the EU by stepping into a legislative void. By threatening economic chaos the markets will put pressure on the government to solve the problem the way they want it solved.

It's my view that governments cannot survive the economic chaos of a hard Brexit. It's also my view that governments cannot survive even the imminent threat of a hard Brexit due to the immediate reaction of powerful currency markets. Whoever is in charge will either need to change their approach before it's too late or they will be kicked out by their own backbenchers. It's worse than that because altering course might also lead to the fall of the government. After all, Tory and Labour campaigned on a clear policy of the most extreme form of divorce and there will be residual feeling that it ought to be delivered. The next government, of course, will merely inherit all the problems of the previous. That cycle can only ever be broken by the formation of a government that agrees to compromise on almost all of the UK's red lines in order to achieve an orderly Brexit. Until that compromise is reached all that will happen is a cycle of governments armed with the same dogma that led to the fall of the last.

The key point in all of this is that the EU has planned for Brexit; it has published legally binding policy documents; its message is consistent with its own treaties and with the legal templates it has forged with third nations; it is united; everything the EU said last July on Brexit remains valid today. The UK, on the other hand, has come up with nothing more than uncosted policy statements presented in the form of snappy slogans. It has flipped and flopped and stumbled towards an indecipherable position that makes no rational sense. The inherent weakness of the UK's position means it will be first to compromise. It didn't need to be this way but here we are.

Why won't the EU be forced to compromise to the same degree as the UK? Well, it will be forced to compromise from its initial negotiating position but the limits of those compromises are set out in a series of legally binding policy documents. Michele Barnier might even take the view that the EU should compromise further but there's not much he can do about that because anything he does beyond his legal powers will be rejected by the EU. The EU has taken some months to get to its current position: policy proposals have been published, debated by the European Parliament and ratified by the European Council of Ministers. It is doing exactly what it did during the Croatian accession talks, the CETA trade deal, the South Korea trade deal, and TTIP. This is how it conducts its business. A common criticism of the EU is that its democratic processes are time-consuming but that works to its advantage in the Brexit talks: once it has chosen a direction there is no way to change it in time. The UK, on the other hand, has no formal policy documents outlining its negotiating strategy. All it has is a couple of White Papers of dubious quality and some campaign slogans. It is also the only side that is able to change direction rapidly due to its insistence that strategy is dictated by an unaccountable team. The principle of least resistance dictates that the UK will cave first.

Orderly Brexit

Sooner or later there will be an accumulation of pressures from money markets, from businesses moving their headquarters to EU soil, and from the City of London losing its EU passporting rights. Perhaps the UK will be heading towards a self-inflicted recession. Maybe it will already be in recession. Maybe the problem will be a recruitment crisis in the NHS or a brutal downgrading of the UK's debt. It doesn't really matter what crisis acts as the tipping point: a time will come when the UK will be forced to compromise on its red lines. It will probably require a change of Prime Minister, maybe even a change of government, maybe even an emergency election laying out the available choices. All of this will take time that is already in short supply so the UK will be forced to take up the limited offer of a transitional phase on the EU's terms. The UK will take up that offer and effectively remain in the EU until at least 2022.

I didn't mean that sort of orderly but actually it sort of works.
This vision of orderly Brexit is not good for the UK because it makes it look weak and disorganised. That is not a good look for a nation that desperately needs to sign a trade deal with the EU, sort out its WTO schedules, agree renewed trading relationships with all EU partners, and sign 750 legal contracts with 160 nations on everything from airline safety to passport recognition. It needs to do all of that by 2022 just to tread water.

The "orderly" Brexit described here will do significant harm to the UK's economy. It will limit the ability of the UK Government to borrow money on favourable terms; it will lead to uncertainty in business; it will reduce the tax take from financial institutions that successive governments have relied on; it will place restrictions on trade not seen since the 1950s. The UK's international reputation as a place to visit, work and conduct business will be damaged for the next generation.   More than any of this it will be a severe test for the limits of democracy in the UK. None of this is good.  This is not an orderly Brexit but it is the best we can hope for right now.

The Future

What happens after Brexit? Historians might note that the UK intially rejected the vision for the EU laid out in the Treaties of Rome in 1957. Instead of joining a trading block with strong intentions of closer integration and cooperation, the UK joined EFTA. The UK's sluggish economy resulted in an attempt to abandon EFTA after just 1 year of membership. Attracted by the stellar growth of the EEC, Harold Mcmillan applied to join up back in 1961. That was rejected by Charles de Gaulle, as was Harold Wilson's attempt to join in 1967. By the 1970s the UK was the "sick man of Europe". It's eventual accession to the EU and the opportunities it presented turned the UK into one of Europe's most successful economies. Will history repeat itself?

There is no question that EU membership has been an economic success for the UK. In a few years time, after the current wave of xenophobia was blown over, the EU will once again appear a more attractive option than going it alone. It will take a new generation of voters and political leaders but that is the most likely outcome. Maybe it will start with small items like closer cooperation on the protection of fishing grounds or maybe the UK will want a slice of the Single Digital Market. It doesn't really matter how it starts but one day we'll look back and realise that Brexit was all for nothing. How much damage could have been avoided if only that realisation had dawned as early as 2017? That's a moot point because right now Brexit is a process that we all have to go through. Almost nothing can stop Brexit because it has just enough momentum that it can't be stopped in time.

If you're Scottish, of course, the wilderness years can be avoided by voting for independence. We must never forget that.

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


PS I think the planned posts are better but I've always been one to prove a point even if it means a kick in the shins.  Can I be Minister for Brexit?

PPS Feel free to disagree with my analysis.  Maybe you think that the next government will stand firm or that the chaos will be containable. Please leave your views in the comments section.  If we still disagree then I'll see you in the car park outside Tesco at 8pm.  Oh dear, this always happens when planning goes out the window.

PPPS Switzerland took a hard look at their own equivalent of catastrophic Brexit and backed down long before it became a likelihood.  There's that famous European pragmatism.  Everyone used to think the UK were the kings of pragmatism.  What happened?

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. 

Wednesday, 31 May 2017

Goedel's Dilemma And Recursive Meaning In The Brexit Era

Did you enjoy the post-modern title? I enjoyed making it up on on the short walk home from work and I'm still enjoying it now after eating a splendid dinner of haloumi salad.  I spend so much of my time with mathematical equations, technical specifications and boring old facts that I often like to get stuck in to sentences that appear to have convey meaning but don't actually have any information content whatsoever.   Do you want to know the thing I hate most about facts?  What I hate most about facts is that they are exactly the same tomorrow as they are today.  The day after that they remain exactly the same, too.  And the day after that.  Jeez, they are just so dull and unimaginative.  Dull, dull, dull.  The other thing I really hate about facts is that they are quite difficult.  They can be difficult to find, difficult to prove, difficult to understand. After all that effort all you end up with is some dreary data.  That would be just about tolerable if facts weren't always to be found resting on a huge pile of other facts.  Just to get at the fact you're interested in you need to wade through facts even more boring than the one you're trying to find, each fact bringing you ever closer to a permanent catatonic state.  Oh sure, facts underpin our knowledge of the observable universe.  I know that facts brought us cancer treatments, communications systems, worldwide travel, the printing press, systems of written language, lunar landings, and lasers. I know all that but can't someone jazz them up a bit? Just for me?

I think my complicated relationship with facts is why I'm so fascinated by Brexit.  On the one hand, we have the UK weaving stories out of thin air until it forms this huge dramatic arc.  There are occasional glimpses of self-awareness but mainly it jumps from one fantasy to the next like a pixie leaping over toadstools.  The other side to the coin, of course, is the EU.  God, the EU is boring.  Honestly, it bores me to death with its consistent fact-based analyses.  It's always just sort of standing there, stock still, always consistent with its boring facts.  Oi, mate, I've heard your story, and it's boring!  Boring, boring, boring.  It's just the same story week in, week out.  Month after month of dreary facts about treaties, contracts and points of law.  On and on it goes, always the same facts told at the same moribund pace with the same soporific voice.  There's just this constant stream of tedious facts spewing out from the mouth of the EU.  Will it ever end?

The UK has been on an incredible Brexit journey and I thought it would be fun to take a look back at some of the highlights.  The EU, meanwhile,  hasn't given its citizens even 1% of the entertainment that we've had.  We've had twists, we've had turns, we've had slogans, we've had retractions, we've had story after story after story.  Let's start right back at the beginning to see what I mean.

This is probably my favourite Brexit yarn.  David Davis, just 1 month before taking up the post of Minister for Brexit, thought that the UK could negotiate bi-lateral deals with European partners.  He really thought that.  He thought it was such a good story that he shared it on twitter for everyone to see. Obviously, his journey of personal discovery meant he had to put an end to his old life of creativity and imagination. Still, it was good while it lasted.

Boris Johnson came up with an even better wheeze just a few months later.  He invented a tale that involved Italians being so short of buyers for their prosecco that they would give the UK pretty much anything they wanted in the Brexit negotiations.  It was a great story while it lasted but the great thing about stories is that the next one can build on the last and take us to even higher drama.

The whole food and drink theme really took hold at one point.  Anyone remember the period of "cake and eat it" Brexit? This was the idea that the UK could remove itself from all the obligations from EU membership without giving up any of its advantages.   Like all good yarns, it rumbled on until we all tired of it and waited for an even better one to come along.

And here, bang on time, is a beezer.  It didn't last long but it hit all the right buttons   You know, you can never trust Europeans because they either lost the war, surrendered to the losers of the war or collaborated with the losers of the war. And their kids and grand-kids.  Yeah, they're just as bad. They're all bad.

 To be honest, I'm not all that into poetry but I've always enjoyed phrases that suggest other ways of thinking.  I mean, I'd never even considered that Brexit could have a colour scheme.  I'd certainly never contemplated the properties of the tone palette that might be most suitable for the legal process of exiting the European Union.  Luckily, the Prime Minister stepped in and showed me how to turn Brexit inwards rather than outwards,  how to apply the phenomenon of synesthesia to find a personal resolution to the Brexit conundrum.  Thanks to the PM I know what Brexit looks like but what does it sound like?  It is a low rumble like thunder or a high-pitched whine like that made by a V2 rocket just before it explodes? 

Poetry sometimes isn't enough so we often need to turn to philosophy.  This time we were invited to view Brexit as a testing ground for Gödel's theorem of incompleteness.  Brexit means Brexit.  Can it?  Does it?  Can something mean itself or even understand what it means to objectively describe itself?  Can systems understand themselves at their own level or can they only ever dare to understand lower levels of the hierarchical knowledge structure?  The consequences of this experiment will sweep through 21st Century philosophy for years to come.  What does Brexit mean now?  It means anything you want to mean and that is why it is so resilient.

I like this one because instead of focusing on the story itself we are invited to shift our attention to the writing of the story, to the technical aspects of story order.   This meta-analysis first appeared in the Government's White Paper on Brexit back in February.   The EU, boring as always, rejected it on the grounds that it violated these stupid things called treaties.  There's those stupid facts again, getting in the way of a perfectly good myth.  Luckily, this one was so powerful that it simply refused to die.  David Davis, of course,  brought it back to life in an interview with Robert Peston and Theresa May subsequently thought she'd run it run it up the flagpole to see if anyone salutes it. Nobody did salute it, if you're interested, because the EU has not granted Michele Barnier the power to discuss trade.  In fact, the limits of his powers are clearly laid out in the EU's legally binding negotiating guidelines.  They don't include trade.  Michele Barnier cannot discuss trade because he has no legal powers to do that.  I know it,  you know it, the world knows it.   Theresa May doesn't yet know it.  Watch this space because this one will just keep on bouncing back.

I'm going to finish up with the sturdiest addition to the Brexit lexicon: "no deal is better than a bad deal".  This one first appeared back in the wintry gusts of January and here it is, still going strong, after almost every other contender came to a miserable and lonely end.  We'll never, ever hear about cherry-picking from the EU buffet ever again.  So sad.  Liam Fox never wheels out his vision for a global Britain revolutionising world trade by ripping up the old ways of the EU.  He is now a shell of his former self, obsessed with replicating those old EU ways in as much detail as he can manage.   I doubt he'll ever call UK businessmen fat and lazy ever again. Another light snuffed out.  We don't even hear about all the trade deals the UK is about to sign.  That one was sent off to the knackers yard with all the other failed memes. All we're left with these days is, "no deal is better than a bad deal".  I liked it at the start but they need something new, something catchy.  Maybe we'll need to wait till after the election.  Maybe we'll need to wait for the icy blasts of winter but another one will come along. They always do.

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


PS Why did I write this?  Well, I was looking once again for Brexit manifesto pledges.  I  know they should have been in the manifesto of the main parties but they don't seem to have bothered with that. Instead, I was hoping that a keen journalist would have asked a perspicacious question about Theresa May's response to the EU's insistence that the ECJ regulates the Brexit deal; whether May or Corbyn support the principle of lifelong residence rights; about the policing of the NI border in the event that no deal is better than a bad deal; how the next government will keep UK travel industry afloat after it withdraws from the Clear Skies initiative; how much will it cost to set up customs controls at the UK border after it leaves the Customs Union.  The UK is about to face a genuine crisis and nobody is talking about it, nobody is planning for it and nobody seems to even understand that it is about to happen.  All we have is a government that has spun slogans to match whatever fantasy it believed in at the time.  It is fascinating to watch and a must-see for post-modernists, especially in the way that the story of the storyteller is more interesting than the story itself.  This is a a General Election entirely about Brexit that never, ever mentions Brexit.   I don't get it.

PPS While the UK avoids the topic, the EU is busy publishing even more detail about how it intends  to implement the UK's exit  from the EU.   They just released two new policy papers describing in glorious detail the technical aspects of protecting citizens' rights and the calculation of the Brexit bill.  The UK, of course, has no policy at all on any of this.  Talks begin in about 3 weeks time.

Tuesday, 23 May 2017

In The Beginning There Was an EU Policy Document

After reading the woeful attempts made by Labour and Tory to plough a clear Brexit furrow, I decided to review a policy document that was clear, concise and logically coherent.  It turns out that the EU is pretty good at this.  In fact, the EU has been publishing its plans for the upcoming Brexit negotiations for some time now.  I recommend that everyone take a gander here to find out what transparent governance looks like.  I suppose it looks transparent, which ... doesn't actually look like anything at all.  Oh dear, I've got myself in a right wordy mix-up again. 

Let's forget my terrible metaphor for the moment and get cracking with a review of the EU's legally binding instructions for Michele Barnier.  These instructions describe the legal parameters of the upcoming UK/EU divorce talks from the perspective of the EU. They also provide an insight into the processes the  EU will employ to ensure that the EU is protected from the UK's bizarre behaviour over the last year or so.  Rather than go through the whole document I thought I'd just flag up some of the issues that will be most contentious for the next Tory government.  Boomshanka and simply enjoy.


Citizens' Rights

I've already blogged about the gap between the UK's view on citizens' rights and the position that the EU will likely take.   Neither Tory nor Labour are anywhere near the position demanded by the EU.  Labour, of course, think they can magnanimously grant rights to EU citizens in the UK on a purely unilateral basis without really specifying what those rights will be or laying down any legal foundation for the persistence of those unspecified rights.  The Tories, on the other hand, are extremely tight-lipped about any deal they will offer to EU citizens in the UK.  Neither party has ever gone as far as to publish any detail on how they intend to secure the rights of its own citizens living in the EU.   We can only be thankful that there is a grown-up in the room to take care of this on our behalf.

The EU's policy is centred around the principle of permanent residence rights.  EU law has long dictated that permanent rights of residence are secured after 5 years of legal residence. In the case of Brexit that five year span can be any window of time that starts before the date of withdrawal; that is, 31 March, 2019.   Anyone who qualifies for permanent residence on 31 March, 2019 should automatically be granted the status of permanent residence.  More crucially, anyone partially along the path to permanent residence should also be granted permanent residence after they have completed their 5 years of lawful residence.  That means that an EU national who takes up residence in the UK on 31 March, 2019 and legally stays for five years will be granted exactly the same status of permanent residence in 2024 as someone who qualifies on the date that the UK exits the EU.  This is huge stuff.  Really, this is not going to make the UK happy at all because they have variously briefed that the cut-off date should be either the date of the EU referendum or the date that the Article 50 letter was delivered.  Nobody in the UK has ever contemplated the possibility that permanent rights would be granted to individuals not yet resident in the UK.

What other details did Tory and Labour neglect in their manifesto pledges? Oh yeah, that whole stramash about the rights of EU nationals already resident in the UK to bring over their family.  The rights of family members to join someone already resident in the UK will persist even after the date of departure.  That means that anyone resident in the UK can legally bring over their wife or husband even if the spouse wasn't resident in the UK on or before the date of withdrawal.  David Davis must be having a heart attack at all this.  Keir Starmer is probably still trying to work out if this nugget means that "Brexit is settled" or if there is still room for a tiny bit of contention.

Brexit is definitely settled except for the really hard second part and the first part that is only marginally easier than that.
The EU puts great stress on the permanence of permanent rights.  They really do mean that permanent rights will last for the lifetime of the holder of those rights.  For example, an Italian working in the UK since 2004 will be able to return to Italy for 3 years, then work in France for a bit and then return to the UK with all of their rights in tact.  They will be able to repeat that cycle until they pop their clogs.  Now, the EU hasn't mentioned rights of access to graveyards but I fully expect there to be an addendum somewhere or other.  Permanence also means that rights that hold today cannot be taken away in the future. The right of access to healthcare or a state pension or unemployment benefit or education will persist for the lifetime of anyone who qualifies for permanent rights.  Someone call Liam Fox a doctor. What?  He is a doctor?  Really?  An actual doctor?  Well, I'm just glad he went into politics, then.

Governance of the Agreement

Theresa May has made a huge fuss about the UK withdrawing from all of the EU's governing bodies.   However, she hasn't made any plan for how to resolve disputes that arise from the Brexit agreement that she will eventually strike with the EU.  Let's imagine that a French radiographer applies for a job at a Birmingham hospital but is turned down on the premise that their qualifications are no longer recognised by the UK.   The EU, of course, is demanding that the UK recognises in perpetuity the qualifications of all EU nationals granted the status of permanent residence.  How would that radiographer pursue their case?  If it happened today they would take their case to the European Court of Justice.  What about after Brexit?  Well, the EU is demanding that the Brexit agreement will be governed by European courts and technical agencies.  As a consequence, EU and UK citizens caught up in this unholy mess will be able to take their grievances to European courts exactly as they do now. All they EU is saying here is that rights enjoyed today will be permanently granted.  This is going to lead to the strange situation where EU nationals resident in the UK have more rights of appeal than UK citizens.  It also leads to the conundrum whereby UK citizens resident in the EU have more rights than their contemporaries back in Blighty. This is what taking back control actually looks like.

The EU goes much, much further than anything I stated above.  They also say that EU citizens in the UK should benefit from amendments to EU law that are not yet implemented or even proposed.   If the EU changes the way that claims can be made to the ECJ or modifies a Directive that applies  generally to EU citizens then EU citizens in the UK should also benefit from those changes.  If they hadn't made this provision then EU law as it applies to the UK would be effectively frozen on the date of withdrawal.  In contrast, the whole point of permanent rights from the perspective of the EU is that their citizens can carry on living in the UK as though the UK had never left the EU.   That, after all, was the state they found it in when they arrived.

Transitional Arrangements

I think everyone now knows that the UK cannot achieve a smooth Brexit in the fixed two years allowed by Article 50 but what is to be done?  There's been a lot of talk about transitional phases from both sides but a lot of disagreement about what that means.  The EU is very clear that a transitional phase can only be granted if the UK maintains all of its current EU obligations for its duration.  If the UK agrees to this it will retain all EU Directives and Regulations; it will be bound by decisions from the ECJ; it will remain under the governance of European technical agencies; it will continue paying into the EU budget.  Theresa May's White Paper on Brexit makes clear that the UK will be free of all of its EU obligations on 31 March, 2019.  She has even made this a clear manifesto pledge but I seriously doubt she will be able to keep it because the UK badly needs a transitional phase to avoid regulatory and financial meltdown.

Theresa May finally wins the Political Maths Olympiad, Downing Street, 2017. 
 Why is there an election happening in the UK right now?  The answer is that it is politically easier to break a manifesto pledge at the start of a new government than right before an election.  If Theresa May had completed her term of office and ran for election in 2020 she would represent a government that had just signed the UK up to a further 3 years or more of EU obligations.  To some it might even look as though the UK would never, ever leave the EU.  Holding an election right now means she can break a key manifesto pledge almost immediately but go on to campaign in 2022 as the leader who heroically brought the UK out of the clutches of the dastardly EU.  Somewhere along the line she worked out that transitional arrangements are just as time-consuming and complex to negotiate as the UK's final departure from the EU.  Time limits being what they are, the only offer the EU could feasibly make is for the UK to follow its current legal template of EU membership for the duration of the transitional period.  She worked that out and then immediately called an election.  It's good that she worked it out but it would have been better if it had all made sense to her and her team of mega-brains about 9 months ago.

UK Debt

The EU has thought long and hard about the mechanisms that will be used to compute the UK's debt at the time of departure but have never actually published an estimate.  Meanwhile, all sorts of numbers have been carelessly thrown around by "journalists" and politicians for the last 9 months.  You've probably read that the EU will demand 100 Billion or that the UK can expect to pay 50 Billion.  There's never any detail to these stories so that debt might be euros or dollars or sterling or magic yo-yos.  The truth is that nobody knows the exact figure because it hasn't been calculated yet.

I've always found that my eyes glaze over whenever I start reading about finance so you might want to look elsewhere for detail on this topic.  As I understand it, the UK has short-term obligations and long-term obligations that the EU will expect to be honoured.  I would guess that both of these have a value that can be established reasonably well.  On top of that, there are obligations with uncertain value and specific Brexit costs.  The short-term obligations represent the money that we said we'd contribute to the current EU budget.  EU budgets typically span several years so we'll be expected to pay that even if we leave before the end of the term of the budget.   Long-term obligations are things like pensions for EU workers.  The UK is clearly responsible for a portion of the pension of all EU employees who worked for the EU during the UK's membership.  What about those obligations of uncertain value?  They are basically systems of loans agreed by the EU with money contributed by the member states.  The UK agreed to pay a share of those loans when it was a member so the EU will expect that to be honoured.  Those loans might be paid back in time, meaning that the EU could eventually pay back the UK's contribution to the loan.  Alternately, the loans might eventually be written off.  If you're still awake the specific Brexit costs are the costs of moving EU technical agencies from the UK.  The European Medicines Agency, for example, will need to move from its current headquarters in London.  There will be all sorts of costs involved:  obligations to pay rent and facilities charges under the current rental contract;  the cost of staff relocation; the cost of finding and renting a new office etc etc.

Despite UK bluster and tabloid protestations this is really happening.  It is unstoppable now.
 The final figure is going to be contentious.  The UK will obviously dispute its short-term obligations. I'm sure it will argue that its contribution to the budget should stop when the UK exits the EU.   The long-term obligations seem less contentious, especially as they include the pensions of UK citizens.  Having said that, I'm sure David Davis will find some way because he has a final figure of just 1 Billion (any denomination you like) in mind. Didn't Boris Johnson even say that the EU owes money to the UK instead of the other way round?  The loan contributions are particularly contentious because the UK will probably prefer to honour future losses rather than front the money right now.  We need to remember that the Daily Express will be commenting on the unfolding horror with its typical objectivity so keeping the immediate number as low as possible will be a clear goal  for UK politicians.  Finally, I'm quite sure that the UK will take the view that the EU should pay for its own technical agencies, thank you very much.  Good luck with that.

Wrap This Up Now!

I've only flagged up the areas that I think will be most politically contentious rather than the areas that might turn out to be the most complex to resolve.  For example,  I've not mentioned Northern Ireland or Gibraltar or how the UK intends to honour contracts the EU has with third parties.  Nothing I've seen suggests that the UK is prepared for any of these complicated issues.  All I've seen is the UK giving the vaguest promises possible that EU citizens will be allowed to "remain" in the UK and a one-sided yelling match about the UK's debt obligations followed by petulant sulks about how it's all terribly unfair.  None of this promotes the spirit of cooperation.
Are there concrete plans to walk out of Breixt talks?
 Will the UK really walk out of the talks?  The rhetoric coming from Tory HQ is so inflammatory it seems that agreement with the EU will be almost impossible. In the midst of all this bluster, there are all sorts of rumours flying around that the UK is not planning for meaningful dialogue but instead intends to walk out of the talks immediately after the German election.  The argument here is that the UK isn't prepared for talks because it always intended to storm out and blame the EU for its inflexibility.  David Davis helps fuel these rumours by continually saying that walking out the talks is a tactic he fully intends to employ if things don't go his way. "No deal is better than a bad deal", and all that.  Is this a realistic scenario?  I'd be inclined to believe these rumours if the UK was better prepared for the consequences of walking out of the talks.  The consequences would include an immediate hiring ban of foreign nationals; WTO tariffs; tens of thousands of customs staff; border queues;  immediate price rises;  nuclear plants without nuclear fuel; Channel Tunnel trains without qualified drivers;  planes without qualified pilots; cancelled operations; the cessation of pharmaceutical licenses; hazardous chemicals stuck in transit; tourists with uncertain hospital costs; the striking out of ongoing legal cases; UK data servers declared illegal; the City of London ceasing to function as a Euro clearing house; pensions stuck in limbo.  It is much, much harder to plan for the walk-out option so I really don't think this is a credible threat.  The EU surely know this.

The truth is that exiting the EU is a prescribed legal process and there isn't that much room for negotiation on the main points of the divorce.  Even the order of the talks (divorce before trade) is all written down in a way that follows the various treaties and constitutions of the EU.  Nobody can do anything about this even if they wanted to.  Sure, the structure of the UK's debt can be discussed and I'm sure there is wiggle room in the timing of the payments but the figure itself isn't really something the UK can alter on its own.  I'm sure there is even room for the foundation of a special court  to oversee the Brexit agreement instead of the ECJ.  The problem for the UK is that appointing and agreeing the powers of a new court will take up months and months of organisation.  While all that is going on the UK will not make any progress towards a Free Trade Agreement with the EU.  This is not a credible path.  The ball is in the EU's court and there is nothing that can be done about that.  Nothing at all.

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


PS It is fascinating to watch the EU publish all of its policy on Brexit.  They have made clear what information will be placed in the public domain (almost everything),  issued legally binding guidelines to its chief negotiator,  and formulated an unambiguous policy of ratification.  The UK, on the other hand, wants everything conducted in secret.  It did issue a Government White Paper on Brexit but if we cast our minds back we'll remember that it read like a school project from an unsuccessful student. To add insult to injury, key statements were reversed within days of publication.  It is not a useful document unless Brexit leads to a shortage of toilet paper. The Government White Paper acts only as a guide for how not to write a Government White Paper. Finally, there is still no formal mechanism for the UK to ratify the Brexit agreement.  Both Labour and Tory have pledged a "meaningful" vote in Parliament but without any detail whatsoever on the choices that will be offered.  What a mess.

PPS Why wait for the German elections to storm out?  If they storm out before the election they leave the door open for a new German government filled with fresh faces to coax the UK back to the table.  Storming out after the formation of a new German government leaves that door firmly shut.  The problem with storming out is that the EU is legally bound by the instructions it has passed to Michele Barnier.  It can only negotiate within those parameters. We cannot expect the EU to come back to the table with a fresh offer because it cannot legally do that.  The UK already knows the EU's boundaries because they published them on a website for idiots like me to read and review.  The point of revealing their guidelines is to prevent the UK from storming out - if the UK does storm out in a strop it means that it entered the discussions in bad faith.  Let's see when the penny drops for  David Davis.