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Friday, July 05, 2019

Brexit—What Academics Are Saying


On July 4, 2019, Professor AAA wrote: “There are two other possibilities: d) a fantasy, rejected by every single EU official each time it is floated, that the ‘deal’ can be renegotiated. And then there is e) crashing out without a deal.” The term “fantasy,” like “unicorns” used on another occasion, seems to me to be misplaced hyperbole.

First, as one-and-all get closer to the deadline, Oct 31, 2019, if the UK makes a credible threat of a hard Brexit (i.e., a Brexit without an EU-UK deal providing for something akin to current frictionless trade), the EU will have to consult its interests, the interests of its member states, and its citizens’ interests. Mostly EU negotiators will be mindful of the EU’s institutional interests. The EU is not in the black. Its current and next few annual budgets were arranged having in mind annual member payments by the UK into the EU treasury. The UK is a large net contributor to the EU budget. The continuing members will not want to pick up the shortfall caused by the UK’s exit—and that includes the German taxpayer—another large net contributor. In that situation, there might be some play in the joints (i.e., support for amendments to the deal now on offer, and further negotiations). 

Second, the Irish will also consult their interests. Again, if the UK makes a credible threat of a hard Brexit, the Irish will be faced with the unpalatable prospect of going forward without the current proposed deal and without its proposed backstop. That may mean that the Irish government, in order to comply with EU law, will have to have border checks and collect taxes for goods crossing the frontier into the EU common customs area from the UK, including Northern Ireland. In those circumstances, the Irish might be willing to reconsider their position and to allow the deal to be amended, but giving the backstop an automatic sunset (e.g., after 5 years) and/or giving each party (the EU and the UK) the unilateral right to terminate the backstop at any time. If the Irish are willing to live without the backstop as it is in the current proposal, surely the other EU members would be willing to redraft the proposal to support Ireland—a continuing EU member. After all, the backstop was only crafted by EU negotiators to support the Irish. If the backstop were amended in this way, it is likely that Prime Minister May’s agreement (as amended) would have the support of the entire Tory leadership, and concomitantly, the UK (on that basis) would continue to pay its EU member fees for the next few years into the EU budget.

Finally, other EU members will have some continuing interest to avoid a hard Brexit (just as the UK does): all (or nearly all) EU members have significant exports to the UK. German car manufacturers come to mind, as do the French and their agricultural products (including, e.g., wine and cheese).

Maybe the EU will refuse to reopen negotiations and maybe they won’t. I don’t have a crystal ball. But terms like “fantasy” and “unicorns” seem to me to lay claim to more predictive powers than most mere mortals have.

Professor AAA also wrote: “Under UK constitutional law, the UK’s approach to Brexit requires consent of the Parliament, and the Parliament will not agree to leaving without a transitional arrangement in place.” This seems to me to be unsupported. Professor AAA does not point to any legal authority for this view—not any ministerial order, not any statute, not any speaker’s ruling, and not any commentator’s pronouncement. I could see arguing that a new treaty (e.g., a deal) might require parliamentary authorization—before or after ratification by the executive. But if all the Government does is to run out the clock, thereby allowing EU membership (as a matter of public international law) to terminate by inaction, then it is certainly not obvious why any (further?) parliamentary consent is necessary. And the Government could plausibly make the argument (at least to the 52% of the public that voted for Brexit) that it already has parliamentary consent to do exactly that—to run out the clock—as Parliament delegated that decision to the people in the referendum and the Government is merely carrying out the referendum’s result.

Prorogation offers a means to stop an incipient Commons majority from stopping the Government’s Brexit plans—particularly any hard Brexit. But prorogation is not the only such means. All that the Government has to do is control the timing of Commons’ meetings and the agenda paper at those sittings, and then make sure a friendly speaker offers no opportunity to anti-Brexiteers to make a motion to stop the Government’s Brexit-related plans. In normal circumstances, that is exactly what is supposed to happen—with the exception that a Commons majority can bring down the Government in a no confidence motion (historically, this would customarily take place in the context of a motion for supply by the crown). If Tories are put to the hard choice of stopping the Government’s Brexit plans by bringing the Government down and forcing a new election, it is likely (in my view) that few Tories will rebel and those few who do will be easily made up for by DUP members, and by more than a few Labour members who are pro-Brexit (e.g., John Mann, Frank Field, Kate Hoey, etc). If the cost or consequence of rebelling is a new election, many rebelling Tories will lose their seats—this is particularly true in Tory constituencies which voted for Brexit in the referendum. If Tories are put to the choice of stopping the Government’s Brexit plan but in doing so risking the election of a Corbyn-led government in the near term, I think few will rebel.

Finally, Professor AAA wrote: “The other option—of having the new PM just run the clock out so that Parliament’s views become irrelevant—is also unconstitutional given the principle of parliamentary supremacy.” That principle is dead in the water until such a time as Brexit should occur. Until such a time, the UK Parliament and the UK is subject to EU law and the courts of the EU. Should Brexit occur, then we can again discuss the intellectual content of that now dormant principle.

Seth

Seth Barrett Tillman, Brexit—What Academics Are Saying, New Reform Club (July 5, 2019, 9:54 AM), <https://reformclub.blogspot.com/2019/07/brexitwhat-academics-are-saying.html>. 

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Anonymous said...

Speaker Bercow is not supportive of Brexit, and that is something to consider in the current climate.

daniel said...


Suppose two groups have an issue between them, say group A wants to take some policy action, say action X, and group B does not want it. Suppose further that A and B meet to discuss terms for that action because there are issues to be resolved between them if action X takes place.
Any such negotiation of these issue other than listing them is a bad mistake for group A.
The reason is simple. `It is in the interest of group B that having A take action X be as disagreeable as possible to group A in order to discourage A from doing X at all. B’s negotiators will therefore be reluctant to make any concessions on any issue or to compromise differences in any way, because any such concessions or compromises will make action X more palatable to group A.
The situation changes completely if A takes the action and then negotiates issues with B. At that time it is in the interest of both A and B to find a resolution of each issue that is in the best interest of its side and is acceptable to the other side. Reasonable compromises can usually be found. In fact it often happens that the issues of greatest importance to side A are different from those of greatest importance to B and both sides end up feeling that it came out ahead in the final arrangements.
The difficulty of course is that neither side wishes to have the action take place chaotically with no resolution of the issues. To minimize this it is appropriate for the sides to communicate their favored resolutions of each issue to one another, and even to exchange critiques of these positions by the other sides. But final resolution has to wait for the definitive action, at which realistic negotiations are possible.
A perfect example of this is the Brexit action. Prime Minister May, who was herself opposed to Brexit, had her representatives negotiate the terms of the Brexit withdrawal from the European Union, whose representatives did not want the withdrawal to take place at all. In consequence , the only terms the latter were willing to accept were no better than a ‘cold Brexit’ in which Britain would withdraw without any agreements over terms, in the hope that the British people will change their minds about Brexit.


Anonymous said...

The backstop was not put in at the request of Ireland. Ireland and the UK were in separate negotiations when the EU intervened and demanded the backstop so as to protect the intergrity of the single market. The backstop has nothing to do with the GFA- it is about protectionism and the prevention of any leakage.
See Tebbitts writings on the subject

Michael said...

I think a hard Brexit will be like the Y2K bug - all the smart people will go on and on about what a disaster it will be, and after it happens everyone will wonder what all the fuss was about.

MikeN said...

Parliament has already given approval of no-deal Brexit, when they passed the EU Withdrawal Act of 2018. They would have to affirmatively amend this act to stop Brexit.

Lee Moore said...

Parliament has already given approval of no-deal Brexit, when they passed the EU Withdrawal Act of 2018. They would have to affirmatively amend this act to stop Brexit.

And even then the Prime Minister would have to advise the Queen to assent to the new Act. A genuinely pro-Brexit PM can only be prevented from forcing a 31 October Brexit, by a vote of no confidence in the Commons. Unlike Tillman I think it's quite likely, ie at least 50-50, that such a vote would pass, if it took place when the new PM was set firmly on a No Deal path, since there are probably a dozen Conservative MPs who love the EU more than they love life itself, never mind their wives, Britain or the Conservative Party.

But even a vote of no confidence can be prevented (until 1 November) by proroguing Parliament. Once the new PM gets himself solidly into No. 10. And that's the point.

A true believer Brexiteer running for the Tory leadership would be making gentle cooing noises about his desire to renegotiate the May deal, because he would not want the current Parliament to box him in before he takes over, with a new law that Mrs May declines to block. And the new Tory leader will want to win a vote of confdence immediately on taking office as PM, so that the Queen's advisers do not quibble about his right to advise refusal of assent to a Bill or a prorogation.

So he would keep on making mollifying noises. If you're a Tory Bremain fanatic there's difference between destroying your career and your party when the alternative is a certain 31 October No Deal Brexit, and when the alternative is just your fear that that might be where the new PM might be heading. A softly cooing Boris has got a much greater chance of winning a vote of confidence if he holds it immediately on taking office, while mouthing platitudes about the need for a good deal, the need to remain friends with the Irish, and all that stuff. Cos once he's in with a vote of confidence under his belt, he's basically Stalin till 1 November. In total control.

But is Boris a true Brexit believer ? I doubt it. He's a true Boris believer. But I think in this case having seen the muddle Mrs May got into, and what her refusal to bite the bullet did to Tory poll ratings, I think Boris is being sincere when he says if the UK doesn't leave on 31 October the Tories are toast. And he's gambler enough to know that it's best not to die wondering. He can see if the EU's bluffing. If it's not, he can take us out without a deal. And if he then loses a vote of cofidence, he can then see if he can win a general election, with the Brexit Party largely collapsed. And if he fails, then he's no worse off than if he lost after cowering behind the sofa with Mrs May.

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