30 Dec 2020

Brexit blog


Brexit: the minutes tick down to the UK's departure...


Although the UK and the EU agreed terms on Christmas Eve for their future trading relationship, which will apply from 11pm (London time) tomorrow night, there was still the small matter of both sides needing to formally ratify the agreement, which runs to some 1,200 pages, before it could become law.

Earlier this week the EU provisionally ratified the agreement (termed a “Trade and Co-operation Agreement” (TCA)) and today it’s been the turn of the UK parliament to do so. Last night the EU (Future Relationship) Bill was published, and today it is being rushed through parliament: earlier this afternoon the House of Commons backed the Bill by 521 to 73 votes and, following its passage through the House of Lords (which is currently taking place) it is set to become law later this evening, once it has received Royal Assent.

The Hansard Society has been singularly unimpressed with the process adopted for scrutiny of the TCA, issuing a blog-post earlier today entitled Parliament’s role in scrutinising the UK-EU Trade and Cooperation Agreement is a farce. It is interesting to note that the Bill contains a number of “Henry VIII” powers whereby Acts of Parliament will be amendable by way of Regulations made under the future EU (Future Relationship) Act 2020, and there is also a rather strangely-worded provision (Section 22(1)) which states that the arrangements contained in the VAT Protocol in the TCA are to have effect “in spite of anything in any enactment”.

Finally, despite Boris Johnson’s statement at the press briefing on Christmas Eve that “there's some good stuff in there about barristers, lawyers and solicitors being able to practise law in the EU” (and the Summary of the FTA produced by the UK government hailing the TCA as including “ground-breaking provisions on legal services that go beyond what the EU has included in any other FTA to date”) the basic position is that the agreement only permits UK-qualified lawyers, within the territory of the EU, to advise on their “home jurisdiction law and public international law, excluding [European] Union law” [see Article SERVIN 5.49, para 1 of the TCA].


Brexit - approaching the end of the end-game ... 


As far as Brexit is concerned, deadlines have come and gone, and new deadlines set, but it finally appears that we will know by Sunday whether a free trade agreement will be signed by the UK and the EU, to apply from the end of the Brexit transition period which is now only three weeks away. Last night's last-ditch attempt by the prime minister and the president of the European Commission, Ursula von der Leyen, to find common ground on the remaining outstanding issues broke up without any form of breakthrough – in fact, quite the opposite, with the parties acknowledging that they were still far apart. The only thing they could agree on was that a decision on whether there will or won't be a trade deal will be made by this Sunday.

Certainly the mood music seems very downbeat at the moment, with the EU announcing this morning that it would be putting forward no-deal contingency plans to ensure “basic reciprocal air and road connectivity between the UK and the EU, as well as allowing for the possibility of reciprocal fishing access by EU and UK vessels to each other's waters".  

And, whereas in a more “normal" negotiation this type of downbeat assessment might be put down to last-minute posturing by both sides to give the impression that they are prepared to walk away if the price of last-minute horse-trading gets too high, the main issue at stake here – the level playing field - is one of fundamental principle for both sides, and therefore different considerations apply. The EU is not prepared to allow the UK tariff-free access to its markets if the UK does not agree to sign up to commitments to maintain equivalent levels of regulatory requirements in the areas of workers' rights, environmental protection, taxation and - in particular - State aid (i.e. government subsidies for business - which would mean that companies based in the UK could be given state support to undercut their rivals elsewhere in Europe). But the fundamental rationale for the entire Brexit project was based on the concept of “regaining sovereignty", and therefore signing up to such long-term commitments is seen as anathema, and effectively undoing the whole purpose of Brexit.

However, given that the EU is the UK's largest trading partner (with UK exports to the EU totalling £294bn - or 43% of all UK exports - in 2019) the issue of whether pragmatism will override politics, and whether the UK will ultimately accede to the EU's demands on the level playing field, is the million-dollar question, and one that we can expect to know the answer to by this Sunday.

One positive recent development is that, on Tuesday, the UK and the EU, via the UK/EU Joint Committee on the Northern Ireland Protocol, announced that agreement had been reached in principle on outstanding issues in relation to the Northern Ireland Protocol (which applies irrespective of whether a trade deal is done or not), and that, as a result, the UK government would withdraw the controversial clauses of the Internal Market Bill that would have given the UK government power to breach the terms of the Protocol, by removing or modifying the effect of key provisions of the Protocol in UK domestic law.

However, as an article by George Peretz Q.C. of Monckton Chambers entitled “The case of the unclear clarification: statement by the Joint Committee on the Ireland/Northern Ireland Protocol" points out, although the joint statement records that “agreement in principle" has been reached on “a clarification on the application of State aid under the terms of the Protocol", in fact the Joint Committee has no role in setting the boundaries to Article 10 of the Protocol, which covers State aid. Therefore if in future the European Commission applied the clarification and decided that a measure did not fall under Article 10, that would not necessarily be the end of the matter.  A dissatisfied party could still appeal to the General Court of the EU on the ground that the “clarification" was not what Article 10 actually meant. The article adds: “The effect of all this is that the “clarification" appears to be of little use to the United Kingdom.  That leaves the current government with a serious political problem: it will at some point have to explain to bemused voters why, after the end of transition and possibly after a “no deal" end of transition, it is still busily sending off aid measures (such as tax or Covid relief) to the Commission for clearance or being told by UK courts that it cannot give certain kinds of subsidies to certain operators." One may wonder, therefore, if in fact the clarification was some form of “fig leaf" to enable the UK government to climb down from its insistence on retaining clauses 44, 45 and 47 of the Internal Market Bill, despite these provisions having been rejected by the House of Lords, and the outcry from the Law Society of England & Wales, and elsewhere, at the rule of law not having been adhered to. As the article concludes, the UK government could instead have used 2020 to adopt a strategy to persuade the EU to agree to remove Article 10 from the Protocol, and this “would have been a more sensible and constructive use of its time and energy than pursuing the objectionable, and now abandoned, proposals to break the agreement that it signed just over a year ago."


Brexit negotiations - the most important week of the year 


The much-maligned UK Internal Market Bill continues its deadly-slow passage through parliament. Last night, the House of Lords inflicted a heavy defeat on the government, voting by 433 to 165 to remove clause 42 of the Bill (which included provisions on the Northern Ireland Protocol) and voting 407 to 148 to strip out clause 44 (and by extension clauses 45-47) – the clauses which conflict with the UK's international obligations, as set out in the Withdrawal Agreement with the EU. Forty-four Tory peers rebelled against the government, including Michael Howard and Ken Clarke. Following the defeat in the Lords, a government spokesperson said: “We are disappointed that the House of Lords has voted to remove clauses from the UK internal market bill, which was backed in the House of Commons by 340 votes to 256 and delivers on a clear Conservative manifesto commitment. We will retable these clauses when the bill returns to the Commons."

Alongside this, last week the UK breached the deadline imposed by the European Commission for responding to legal action brought by the European Commission on account of the UK having tabled the Internal Market Bill, in contravention of its obligations in the Withdrawal Agreement. A "reasoned opinion" would normally be the next stage in infringement proceedings, but the EU has not yet taken any further action, preferring instead to focus its attention on the negotiation of a Free Trade Agreement, which is now entering a critical week.

Indeed, according to Simon Coveney, Ireland's Minister for Foreign Affairs, this week is arguably "the most important week we have had in the Brexit trade negotiations since this time last year" when efforts were being made to close a withdrawal agreement. In terms of the likelihood and timing of a free trade agreement, if one is to be signed then it will need to be done, at the very latest, by the end of next week, to allow time for so-called “legal scrubbing" of the document to be done, for it to be translated into the various EU languages, and for it to be ratified by the European Parliament and Westminster by the end of the year (the final plenary meeting of the European Parliament is scheduled to take place from 14-17 December 2020).

In terms of the likelihood of a deal being done, most observers still anticipate that a deal will be agreed  - not least on account of Joe Biden having won the race to the White House, which means that the UK is less likely to be able to get a quick trade deal with the US, were it to leave the EU “on Australian terms". Mr Biden, who has Irish heritage, warned last September that the Belfast (Good Friday) Agreement could not be allowed to become "a casualty of Brexit" and said a UK-US trade deal would be dependent on the peace terms being upheld. This close relationship with Ireland was reinforced this afternoon by a call from Mr Biden to the Irish Taoiseach, Micheál Martin, during which he restated his deeply-felt commitment to the Good Friday Agreement.

Alongside this, preparations continue on the ground for the imminent end to the Brexit implementation period. On this point, the Institute for Government (IfG), the non-partisan political think-tank, in a new report entitled 'Preparing Brexit. How ready is the UK?' has given a sobering and downbeat assessment of the UK's preparedness for the end of the Brexit transition period, concluding as follows:

“… there are now just eight weeks to go until the end of the transition period, when – deal or no deal – the UK will leave the single market and customs union, marking the start of a much more distant relationship with the European Union. The scale of the task to prepare businesses, people and the government itself is huge. An agreement on the future relationship with the EU could make transitioning to these new trading terms less disruptive. It could, for instance, avoid new tariffs and streamline some of the most extensive new red tape. A deal would not, however, fundamentally change what both government and business need to do to prepare – much of which is the same regardless of the outcome of negotiations. But this message has not cut through to the public. And the government is only now making clear how urgent it is to act.

Despite the devastating effects of the coronavirus crisis, both in the UK and EU, the Johnson government chose not to extend the transition period. In doing so, it has effectively gambled that the UK can withstand the inevitable disruption from its preferred outcome, with minimal time to prepare – and that more time wouldn't have improved readiness. This is a high-risk bet, made riskier still with every week that passes without clarity on the outcome of the negotiations and in which the resurgence of coronavirus demands ever greater government and public attention, forcing most of the country back into lockdown."

The IfG then go on to set out the three key challenges which remain:

1. The Northern Ireland protocol will not be fully implemented by January. There remain decisions for the UK–EU Joint Committee, and the UK government, to make about how the protocol will operate in practice. The infrastructure needed to administer new processes on GB–NI trade, particularly on extensive agrifood checks, will not all be operational by 1 January 2021. This means the UK government will need to make a trade-off between applying the letter of EU law and facilitating the flow of goods. If it chooses the former, the disruption to trade will be more extreme, likely leading to long queues at the GB–NI border and limiting choice for NI consumers. If it chooses the latter, it will risk ending up before the European Court of Justice.

IfG proposed solution: The EU should acknowledge that fully implementing the Northern Ireland protocol by January will be almost impossible and be ready to show some flexibility. But to make this work, the UK government needs to prove that it will not renege on its international obligations. The powers taken in the UK Internal Market Bill have undermined trust so the first step should be removing the offending clauses.

2. The government has bought itself more time to prepare the GB–EU border, but poor trader readiness and EU checks from January mean disruption is inevitable. More work is needed to ensure that new border controls, to check customs paperwork and carry out inspections, are introduced without causing major disruption to trade. The government is just about on track to deliver the IT systems, infrastructure and people needed at the border. But even then, it still needs to make sure traders know how to navigate the new ways of working – and are prepared for EU controls from January. The government's decision to delay most border controls on GB imports has bought more time to prepare, but this means the preparation task will stretch well into 2021.

IfG proposed solution: The government's plans to manage traffic flows and minimise disruption will be vital. It is likely that the government will need to consider light-touch enforcement or further delays to new import controls to minimise disruption at the border. It will also need to clearly communicate the changes to import processes as checks are introduced in 2021.

3. Business readiness is the biggest problem for the end of 2020, with the Covid crisis leaving many firms less prepared than last year. There is only so much the government can do alone to prepare; businesses too need to be ready for new trading conditions and to comply with new checks and regulations. Yet, the  government's own figures paint a worrying picture of just how few businesses are even aware of the changes coming, let alone prepared for them. As late as October, a third of small businesses believed that the transition period would be extended, despite the deadline for any extension having passed in June. The economic damage wrought by coronavirus has robbed many of the bandwidth, and cash, to do what is needed. The government's communication campaign has so far proved ineffective, until recently focusing too heavily on selling the opportunities of Brexit rather than driving the action that is needed to prepare for new red tape from January – deal or no deal.

IfG proposed solution: The government should clearly communicate the practical impact of leaving the single market and customs union – in particular, the greater level of bureaucracy traders will face from the end of the year, deal or no deal. If businesses aren't prepared, they will be unable to trade on day one.

All in all, things look to be shaping up for a pretty bleak mid-winter..


Brexit tunnel here we come... 


So, negotiations are now back on again, and it's full-steam ahead into the “tunnel" – diplomatic jargon for end-game negotiations in complete secrecy to try to hammer out a deal. Last night, Number 10 – which for the past week had been threatening to walk out on negotiations if the EU didn't accept that there needed to be compromises made on both sides for there to be a deal – issued a press release to say that Michel Barnier's statement yesterday to the European Parliament about the need to be “serious about talking intensively", and his subsequent discussions with his UK counterpart, Lord Frost, in which he accepted that movement would be needed from both sides if agreement was to be reached, had ticked the UK's boxes, and that negotiations would resume in London, “later this week".

In fact, when your read the “Organising principles for further negotiations with the EU" which No 10 issued at the same time as the press release, it becomes clear that negotiations actually restart today. It's clear that the pace is definitely “hotting up" as this document also states that negotiations are to take place daily including at the weekends, with discussions being based on “each side's legal texts". Although a deal isn't yet “in the bag" this intensification in the negotiating process is a clear sign that both sides are now focussed on finding a way through the issues which still divide them.


A possible pathway to a deal? 


The European Council meeting of EU leaders kicks off in Brussels later today, with the current status of the FTA negotiations with the UK high on the agenda. A good time, therefore, to take stock of how the negotiations between the two sides are progressing, particularly since Boris Johnson had said last month that this meeting marked his deadline for doing a deal.

Following the end of the ninth round of formal negotiations on 2nd October, the EU's chief negotiator, Michel Barnier, issued a statement highlighting the three main outstanding issues: the “level playing field", fisheries and governance. Since then, there have been some signs of movement on both sides: Michel Barnier has been meeting with coastal EU states in an attempt to soften their position on fishing rights, while the UK's lead negotiator, David Frost, in two separate select committee appearances on 7th October, appeared to hint that the UK was looking to see how it could move on the level playing field issue. Last night, however, Boris Johnson issued a statement  expressing his “disappointment" that more progress had not been made over the past two week, adding that he “looked forward to hearing the outcome of the European Council and would reflect before setting out the UK's next steps in the light of his statement of 7th September".

There is no doubt that these are extremely difficult waters to navigate from a negotiation perspective, with France likely to hold out on any sign of a softening in position on the fishing front. (Currently, French boats French boats catch a third (by value) of the fish caught by EU boats in UK waters, followed by Danish (19%), Dutch (16%) and Irish (14%) vessels.)  Earlier this week, for example, France's Europe Minister, Clément Beaune, stated: “We will not accept a bad deal, and a bad deal in fisheries in particular … We will have no weakness on this issue of fisheries, that is clear." Expect Emmanuel Macron to be vociferous at the summit meeting in insisting that the EU hold its line on fishing. Even so, the bottom line is that the EU is likely to have to give ground on fishing rights if there is to be a deal.

On the level playing field issue, Tony Connolly at RTE last night reported that:

On the vexed question of state aid, and how both sides can ensure they are not undercut by the other when it comes to subsidising companies or industries, Mr Barnier has proposed a "toolbox" containing four separate measures. These include: (1) both sides signing up to "high level principles", (2) the requirement for the UK to have a robust, independent competition authority, (3) the creation of a dispute settlement mechanism, and (4) the ability for both sides to take quick retaliatory measures that would not be limited to the imposition of tariffs on the other side's goods. According to a source close to the negotiations, both sides are prepared to accept that overall framework, but are some way apart on the individual components."

In terms of the likelihood of the parties managing to hammer out a deal, it is still probably more likely than not that they will do so, for the simple reason that tariff-free trade would be a very valuable prize for both sides (and would simplify the arrangements relating to the NI Protocol considerably), and because agreeing a trade deal – albeit a “skinny" one – would create a platform from which to negotiate additional deals in other areas. However, given that the two sides are still some way apart on a number of critical issues, the likely timeframe for reaching a deal now looks like it could run over into November – with a “hard stop" by the middle of the month in order to allow time, particularly on the European side, for legal “scrubbing", for translations to be prepared and for there to be advance scrutiny by the European Parliament's specialist committees ahead of its final plenary session of the year, which takes place on 14 December.

It's going to be a busy month!


UK/EU FTA negotiations - the end-game approaches


Tomorrow is make-or-break time in terms of a future trade deal between the UK and the EU.

The final scheduled round of negotiations between the two sides breaks up at lunchtime tomorrow. If the two sides decide that they are close enough on the remaining outstanding points, then they will enter the so-called “tunnel” of end-game negotiations with a view to thrashing out a deal – preferably before the EU summit meeting scheduled for the middle of the month. The negotiation points which are going down to the wire relate to the totemic issue of fisheries, and the much-discussed “level playing field” – i.e. the EU’s stipulation that, in order to be given quota-free and tariff-free access to its markets, the UK must agree not to subsidise UK businesses (so-called “state aid”) and/or reduce regulation, which would have the effect of giving them an unfair advantage over European businesses when selling into the European market.  

To put the pressure “up to 11”, the EU today sent the UK a “letter of formal notice” for breaching its good faith obligations under the Withdrawal Agreement by publishing the Internal Market Bill last month, which contained provisions on state aid which were inconsistent with the terms of the Ireland/Northern Ireland Protocol, contained in the Withdrawal Agreement. This is political theatre - the EU knows it can't be seen to ignore the Internal Market Bill. The UK has been given one month to reply to the letter, but if the FTA negotiations are successful, the EU will always have the option of withdrawing its letter. For further details on the thorny state aid issues involved, do take a look at Marta Garcia’s and Will Spens’ client briefing.

To conclude, there is definitely a deal to be done – not least because the two sides have a symbiotic relationship and because there is so much at stake. However, as one EU negotiator commented recently: “We’re 90% there, but the last 10% is political”.

The final scheduled round of negotiations between the two sides breaks up at lunchtime tomorrow. If the two sides decide that they are close enough on the remaining outstanding points, then they will enter the so-called “tunnel” of end-game negotiations with a view to thrashing out a deal – preferably before the EU summit meeting scheduled for the middle of the month. The negotiation points which are going down to the wire relate to the totemic issue of fisheries, and the much-discussed “level playing field” – i.e. the EU’s stipulation that, in order to be given quota-free and tariff-free access to its markets, the UK must agree not to subsidise UK businesses (so-called “state aid”) and/or reduce regulation, which would have the effect of giving them an unfair advantage over European businesses when selling into the European market.  

To put the pressure “up to 11”, the EU today sent the UK a “letter of formal notice” for breaching its good faith obligations under the Withdrawal Agreement by publishing the Internal Market Bill last month, which contained provisions on state aid which were inconsistent with the terms of the Ireland/Northern Ireland Protocol, contained in the Withdrawal Agreement. This is political theatre - the EU knows it can't be seen to ignore the Internal Market Bill. The UK has been given one month to reply to the letter, but if the FTA negotiations are successful, the EU will always have the option of withdrawing its letter. For further details on the thorny state aid issues involved, do take a look at Marta Garcia’s and Will Spens’ client briefing.

To conclude, there is definitely a deal to be done – not least because the two sides have a symbiotic relationship and because there is so much at stake. However, as one EU negotiator commented recently: “We’re 90% there, but the last 10% is political”.


A bad day for Boris: a U-turn, a resignation, and an own goal 


16 September 2020 is unlikely to be a date which the prime minister will remember with unalloyed pleasure. 

In the space of a couple of hours this afternoon, he was forced to cave in to pressure from his own backbenchers and to agree a curb on the exercise of certain provisions in the Internal Market Bill; had to accept the resignation of Lord Keen, the advocate general for Scotland – the Scottish equivalent of Attorney General – because of the wording of the same bill; and managed to score an “own goal" by inadvertently contradicting what a cabinet colleague had said just this morning about the EU negotiating the Withdrawal Agreement in “good faith". 

In terms of the U-turn on the Internal Market Bill, the government has now agreed to table a government amendment to the bill reflecting the amendment which had been proposed by Sir Robert Neill MP, whereby the government will need to win a vote in the House of Commons before using the “notwithstanding" provisions in the Internal Market Bill (see yesterday's blog for further details). However, this more is unlikely to satisfy the EU given that, as was pointed out by ex-Conservative MP David Gauke (who had the whip removed after voting against the prime minister's Withdrawal Agreement last year: “If taking the power to override a treaty is in itself a breach of international law, … additional safeguards on the exercise of any such power (such as requiring a Commons vote) doesn't stop it being a breach of international law." (On this point, you may be interested to know that the Law Society has now launched an urgent campaign requesting solicitors - and anyone else who wishes to do so - to write to their MP with the aim of securing amendments to the Internal Market Bill to either remove or nullify clauses 41–45.) The government statement issued earlier today also added that “the government will table another amendment which sets clear limits on the scope and timeliness of judicial review into the exercise of these powers. This will provide people and businesses with the certainty that they need." This type of legislative provision is known as an “ouster clause" – i.e. a clause which seeks to strip the courts, either partially or totally, of their supervisory judicial function – and is likely to provoke further outcry in Westminster, particularly in the House of Lords. The Bill already includes an ouster clause (clause 45) which excludes judicial review of any regulate made under clauses 42 and 43 of the bill on the ground of incompatibility with domestic or international law, so it will be interesting to see what additional restrictions the government has in mind. 

The second development took place earlier this afternoon, when Lord Keen resigned as advocate general for Scotland, stating in his resignation letter that: “Over the past week I have found it increasingly difficult to reconcile what I consider to be my obligations as a law officer with your policy intentions with respect to the Internal Market Bill. I have endeavoured to identify a respectable argument for the provisions at clauses 42 to 45 of the bill, but it is now clear that this will not meet your policy intentions." This is the second resignation of a law officer on account of this legislation, the head of the Government Legal Service, Sir Jonathan Jones having resigned his post last week. 

At about the same time as Lord Keen resigned, the prime minister was appearing before the House of Commons Liaison Committee. In the course of this appearance, when responding to a question raised by Hilary Benn MP, the prime minister stated that he believed the EU was not negotiating with the UK “in good faith" - despite a Brandon Lewis, the Northern Ireland secretary, having told another committee this morning that it was. The requirement for both the UK and the EU to negotiate in good faith to reach agreement on their future relationship is enshrined in Article 184 of the Withdrawal Agreement and such a comment is likely to reduce the already rock-bottom levels of trust and goodwill in Brussels towards Westminster to something close to zero.


The Internal Market Bill passes its first legislative hurdle – now what?


Last night the government, as expected, secured a comfortable Commons majority in the vote following the second reading of the highly-controversial Internal Market Bill, which contains provisions which seek to override certain terms in the UK's Withdrawal Agreement with the EU. The bill passed by a majority of 77, despite abstentions from approximately 20 Conservative MPs, including former chancellor, Sajid Javid, and former attorneys-general Geoffrey Cox and Jeremy Wright. In addition, two Conservative MPs, Roger Gale and Andrew Percy, voting against the government. This minor “rebellion" is being seen as a warning shot to the government as the legislation continues its parliamentary passage, with MPs “keeping their powder dry" for now. One particular flash point likely to emerge in the next few days is the amendment to the bill proposed by Conservative MP and head of the Justice Select Committee, Sir Robert Neill. His proposed amendment would prevent any Secretary of State from implementing the contentious provisions in the Internal Market Bill without a further parliamentary vote. Although requiring a parliamentary vote would not de facto prevent a breach of international law, it would at least act as something of a brake on government actions. 

In a parallel development, the Guardian reports that legal eyebrows have been raised by the identities of the three experts called on by the government to provide advice on the legality of breaching the EU Withdrawal Agreement. The legal opinion was sought from Guglielmo Verdirame QC, a professor of law at King's College London, Richard Ekins, a professor of law and constitutional government at Oxford University, and Richard Howell, a barrister at Brick Court chambers in London. The Guardian quotes Jessica Simor QC, the vice-chair of the Bar Council's EU law committee, as stating: “Howell is a one-year qualified barrister … who was also brought into the team for the prime minister in the prorogation case despite at the time being a pupil barrister. He was active in Vote Leave and was praised by Dominic Cummings in his blogs for his contribution to Vote Leave winning. The two professors are committed Brexiteers. Prof Ekins wrote a paper for [the thinktank] Policy Exchange, advocating breaching the withdrawal agreement. Verdirame is also a member of various high-level Brexit groups. He apparently has connections with Michael Gove and Dominic Cummings." Simor also stated that none of the three were on the attorney general's panel - the list of approved lawyers who normally carry out government work. Philippe Sands QC, a professor of international law at University College London, told the Guardian: “What a sensible attorney general would do is get advice from someone who is genuinely at arm's length to avoid criticism that they went to fellow travellers." 


EU sets end-of-month time limit for UK to defuse Internal Market Bill timebomb


Following yesterday's publication of the UK government's Internal Market Bill, which included provisions which would (if enshrined in law) override parts of the protocol on Northern Ireland enshrined in the UK's Brexit withdrawal agreement, the EU called an emergency meeting for this afternoon of the joint UK-EU Joint Committee, which was attended by Michael Gove, and the EU's Maros Sefcovic.  

Following what is likely to have been a none-too-cordial meeting, the EU issued a tersely-worded statement which pulls absolutely no punches. It warned that the draft legislation was a threat to the Good Friday Agreement and that it had “seriously damaged trust between the EU and the UK", and called on the UK government to “withdraw these measures from the draft bill in the shortest time possible and in any case by the end of the month". The statement added: “The EU does not accept the argument that the aim of the draft bill is to protect the Good Friday (Belfast) Agreement. In fact, it is of the view that it does the opposite", and concluded with a reminder to the UK that “the withdrawal agreement contains a number of mechanisms and legal remedies to address violations of the legal obligations contained in the text — which the European Union will not be shy in using". 

For an excellent summary of the legal “timebomb" which is the Internal Market Bill, you need look no further than this excellent article (entitled The Internal Market Bill – a perfect constitutional storm) by Professor Mark Elliott, Chair of the Faculty of Law at the University of Cambridge. His “charge sheet" for the draft legislation reads as follows: “a confrontation with the EU, a stand-off with the courts, a fundamental attack on the rule of law, and a diminution of the UK's commitment to the rules-based international order."  He concludes: “The promotion by the UK Government of a Bill that expressly breaches the UK's international obligations is thus nothing short of extraordinary. The Head of the Government Legal Department resigned yesterday. The Lord Chancellor, whose role as a constitutional guardian of the rule of law is recognised by statute, must surely now consider his position." 

The gauntlet has been thrown down by the EU, and a deadline set for the UK in which to respond. The stage is therefore set for an extraordinary few weeks on both the political and legal fronts…


Brexit – another trip to the Supreme Court beckons… 


Despite the resignation yesterday of the UK government's chief legal officer - allegedly on account of government plans to disregard parts of the UK/EU Withdrawal Agreement - earlier this afternoon the United Kingdom Internal Market Bill was published, giving powers to ministers to unilaterally decide how to apply the Northern Ireland protocol (a core element of the Withdrawal Agreement) in relation to checks on goods moving from Northern Ireland to Great Britain. The bill also unpicks article 10 of the Northern Ireland protocol in relation to state aid and states (section 43 (3)(d)) that the bill should “not be interpreted in accordance with case law of the European court" or “in accordance with any legislative act of the EU". Section 45(1) also identifies specific sections of the bill (and any related delegated legislation) which it states will "have effect notwithstanding inconsistency or incompatibility with international or other domestic law".

This has provoked outcry from both the European Commission president, Ursula von der Leyen, and the president of the European Council, Charles Michel, both of whom issued condemnatory statements. Ursula von der Leyen tweeted : “Very concerned about announcements from the British government on its intentions to breach the Withdrawal Agreement. This would break international law and undermines trust. Pacta sunt servanda = the foundation of prosperous future relations." Charles Michel tweeted. “The withdrawal agreement was concluded and ratified by both sides, it has to be applied in full. Breaking international law is not acceptable and does not create the confidence we need to build our future relationship."

The European Commission has  called for urgent talks with the UK following the publication of the government's plans. Speaking this afternoon at a news conference in Brussels, the commission vice-president Maroš Šefčovič said he was seeking an urgent meeting of the joint EU-UK committee on the Brexit Withdrawal Agreement to enable the British to “elaborate" on their plans.

As always, the devil is in the detail, and you can read a detailed legal analysis by Kenneth Armstrong, Professor of European law at Cambridge University in his article entitled: Can the UK Breach the Withdrawal Agreement and Get Away With It? – the United Kingdom Internal Market Bill. He concludes: “It is hard to see how this can avoid embroiling the Supreme Court in another round of Brexit litigation."

Watch this space…


Brexit - head of Government Legal Department resigns on account of Government proposal to override terms of Withdrawal Agreement


In a development which completely puts the cat among the pigeons, the FT reports that the head of the UK government's legal department, Sir Jonathan Jones, has tendered his resignation on account of Boris Johnson's proposal to row back on parts of last year's Brexit deal relating to Northern Ireland (see yesterday's blog post).

According to the FT:  “Sir Jonathan did not explain his decision in a short resignation letter posted online. But two officials with knowledge of the situation told the Financial Times that he was leaving his position due to a dispute with Downing Street over its plans to challenge parts of the Brexit withdrawal agreement. Those close to Sir Jonathan said he was “very unhappy" about the decision to overwrite parts of the Northern Ireland protocol, part of the 2019 withdrawal agreement, with new powers in the UK internal market bill."

The above FT article also refers to significant differences in interpretation of the legal implications of a no-deal Brexit between Sir Jonathan and Suella Braverman, the Attorney General.   The FT also notes that: “Ms Braverman was appointed in February after the previous attorney-general, Geoffrey Cox, was sacked by Mr Johnson for making what one insider described as “uncomfortable noises" about the importance of abiding by international law."

The internal market bill is due to be laid before Parliament tomorrow. Given this highly significant “thumbs down" to the wording of the bill from the head of the Government Legal Department, it will be interesting to see whether this will now go ahead.


Brexit trade agreement negotiation - the gloves come off as the clock ticks down


After a relatively fallow period of Brexit-related news over the past few months, the past 24 hours has seen three separate developments coming all at once.

First of all, the UK's chief negotiator, David Frost, gave a defiant interview in the Mail on Sunday, in which he said that the UK refused to accept the EU's current conditions on a trade agreement which he said would result in the UK becoming a “client state" of the EU. Boris Johnson then ratcheted up the rhetoric, stating that, if no trade deal was agreed by mid-October, there would be no trade deal with the EU at all. Both of these smack of the sabre-rattling one would expect to see in advance of trade agreement negotiations (it's no coincidence that the eighth round of UK/EU trade agreement negotiations kicks off in London tomorrow, and is effectively a “make or break" set of talks, given the ever-reducing time available to do a deal).

However, the issue which is causing the most uproar in Brussels is the FT's scoop that the Internal Market draft legislation due to be laid before the Westminster parliament this coming Wednesday is proposing to scrap some of the arrangements which were agreed as part of the NI Protocol in the Withdrawal Agreement which the UK agreed with the EU last October. The FT quotes an unnamed source “familiar with the matter" who states that: “The bill will explicitly say the government reserves the right to set its own regime, directly setting up UK law in opposition with [sic] obligations under the withdrawal agreement, and in full cognisance that this will breach international law."

There has been an inevitable backlash from the EU, with European Commission president Ursula von der Leyen saying in a tweet that the withdrawal agreement was “an obligation under international law and prerequisite for any future partnership". Currency markets also reacted negatively, with Sterling losing nearly 1 per cent of its value against the US dollar. 

The UK has subsequently rowed back its position, stating that the purpose of the bill was merely to introduce "limited and reasonable steps" to "remove ambiguity".  But the damage has been done, and such assurances are unlikely to improve levels of trust ahead of tomorrow's crunch meeting between the two sides.  


Brexit: How governance and dispute resolution have now become hot topics... 


I mentioned in my post of earlier this week that the “level playing field" arrangements and fisheries were the two main areas of difference between the UK and the EU in terms of the negotiation of their future relationship. To this can now be added a third, and it's a topic close to lawyers' hearts: governance and dispute resolution.

Yesterday Ursula von der Leyen, the president of the European Commission, delivered a speech (in English) to the European Parliament, where she stated:

It is very clear that there cannot be a 'comprehensive' trade agreement without fisheries, a level playing field, and strong governance mechanisms. Governance may sound like an issue for bureaucrats. But this is central for businesses and private citizens both in the UK and in the EU to ensure that what has been agreed is actually done. … We want our citizens' liberties, fundamental rights and data to be safeguarded in all circumstances. This is why we expect a role for the Court of Justice of the EU where it matters."

So what is the significance of Mrs von der Leyen's reference to the Court of Justice of the EU? To understand this we need to go back to the draft proposals on the future relationship which have been put forward by the two sides…

The EU is proposing a single framework with a single governance system, with its draft agreement expressly providing that future agreements between the EU and the UK are to be treated as supplemental agreements governed by a common framework. The UK, on the other hand, has proposed a “suite of agreements" to be negotiated (and enforced) independently of each other. The reason for the EU's position can be understood in the context of its dissatisfaction with its relationship with Switzerland, which consists of numerous agreements with little overall coordination. In addition, if a common framework were to apply, this would increase the scope for trade-offs.  The UK's preference for separate agreements is likely, on the other hand, to be motivated by a desire to avoid retaliation being applied in one area of the future relationship as a result of a dispute in a completely different area. 

The method of enforcement of the agreement(s) (i.e. the dispute resolution mechanism which will apply) is equally important. Both sides are proposing systems of binding dispute settlement modelled on that developed by the World Trade Organisation (WTO) and adopted by the EU in many of its recent trade agreements. However, one major difference between the parties is the EU proposal for a role for the Court of Justice of the EU (“CJEU"). The UK has made clear that it wants no role for the CJEU, and has sought in its proposals to ensure this by avoiding any reference to EU law or to EU legal concepts, so as to avoid creating any basis for a role for it.  Another notable difference between the parties is that the EU is proposing that arbitration panels should be empowered to impose financial penalties on a party found to be in breach - as opposed to the classic WTO-style remedy of authorising, by way of countermeasures, the suspension of obligations of the complaining party.

This, of course, pre-supposes that the parties are able to reach an agreement on their future relationship in the short time available. Reuters, for example, reported yesterday that Germany (which, on 1 July 2020, assumes the presidency of the Council of the EU)* has warned the EU that the prospect of a no-deal outcome is very real indeed, and that preparations must now start to be put in place to get ready for this eventuality.

Finally, the House of Commons Library published a report earlier this month, entitled “The UK-EU future relationship negotiations: summary of positions" setting out the main points of difference between the two sides, which you may also find of interest.

* This means that, from July to December 2020, Germany will chair the meetings of the EU Council and will be responsible for progressing EU legislation.


Brexit ... where do we go from here?


As you will no doubt have noticed, it’s all been rather quiet on the Brexit front since early March as the UK and EU governments struggled to contain the Covid 19 pandemic.

However, in the background, the two sides have been negotiating via videoconference – not an ideal forum for such delicate talks. The UK government has continued to reject EU demands on competition regulation (“level playing field”) and on fishing, on the grounds that they fail to respect the UK's post Brexit national sovereignty. Meanwhile, the EU insists that, without agreement on fishing and competition rules, there will be no deal at all. It wants restrictions on the UK's ability to reduce environmental or labour regulations for example, in order to prevent UK businesses from becoming more competitive than European ones in their own market.

Therefore, it hasn’t been terribly surprising that negotiations between the UK’s chief negotiator, David Frost, and his EU counterpart, Michel Barnier, have run into trouble. A sign of how unproductive the negotiations were proving to be became clear from the letter which David Frost sent to Michel Barnier last month, accompanying the UK’s draft proposals for a free trade agreement. As Jill Rutter from the Institute for Government pointed out, the letter “read more like the arguments of a barrister in a court of law. But the problem for Frost is that trade negotiations are not like legal arguments: there is no obligation at all on the EU to offer the UK the same as it has offered other countries before. … The letter reads like a rather whiny child complaining that the big kid isn’t playing by the rules.” In his reply, Mr Barnier said he did not think “an exchange of letters regarding the substance of the negotiations is necessarily the best way to discuss on substantial points”, adding: “It cannot be a substitute for serious engagement and detailed negotiations and, in particular, I would not like the tone that you have taken to impact the mutual trust and constructive attitude that is essential between us.”

Last Friday, Michael Gove formally confirmed that the UK would not be seeking an extension of the transition period (Article 132 of the Withdrawal Agreement set out an option for the parties to agree a one or two year extension to the Transition Period – with the deadline for agreeing such an extension being by the end of this month), with the EU now publicly accepting this position as definitive.  Therefore, barring unforeseen events, the Brexit transition period will end on 31 December this year. This means that the only remaining options on the table in terms of the future relationship between the UK and the EU are an “ultra-skinny” trade deal (see below in terms of the likely timescale) – or no deal at all.

Yesterday a summit meeting took place (by video-conference) between Boris Johnson, the President of the European Council (Charles Michel), the President of the European Commission (Ursula von der Leyen), and the President of the European Parliament (David Sassoli). The press release issued afterwards by the EU stated that the parties “noted that four rounds [of negotiation] had been completed and texts exchanged despite the challenges presented by the COVID-19 pandemic. The Parties agreed nevertheless that new momentum was required. They supported the plans agreed by Chief Negotiators to intensify the talks in July and to create the most conducive conditions for concluding and ratifying a deal before the end of 2020.” 

But, in reality, don’t expect any serious negotiation until much later in the year i.e. once the 31 December stopwatch starts to tick very loudly indeed. According to Katya Adler, the BBC’s Europe editor: “… if they're almost there but not quite, come November, the whispered wisdom in Brussels is that with all the "clever lawyers" in town, as they're described to me, it should be possible to find a way of fudging an extension (though for political face-saving reasons, especially in the UK, not actually calling it an extension) for a limited period beyond the end of the year, if both sides want one, and only if they are very close indeed to sealing the deal.”

In the meantime, the UK and EU negotiating teams have agreed to “an intensified timetable” of talks, with possible discussions in person if public health guidelines enable them to do so safely. Both sides have tacitly accepted that remote meetings had reached their limit and that (socially distanced) face-to-face meetings will be needed in order to progress the negotiations.

Watch this space…


Brussels, we have a problem...


One could be forgiven for thinking that, in the current circumstances, Brexit negotiations between the UK and the EU would have been suspended – but, despite the chief negotiators on both sides currently being out of action on account of Coronavirus, negotiations are still struggling on. Yesterday, the two sides (formally, the “Withdrawal Agreement Joint Committee") met via teleconference, with Michael Gove taking the place of David Frost for the UK delegation, and Michel Barnier being replaced by EU Commission Vice President Maroš Šefčovič. Last night the UK government issued a brief “read out" of how the day had gone, stating that the UK and EU had agreed to start the work of the six Specialised Committees on: (1) citizens' rights; (2) other separation provisions; (3) Protocol on Ireland/Northern Ireland; (4) Protocol relating to the Sovereign Base Areas in Cyprus; (5) Protocol on Gibraltar; and (6) financial provisions.

Another issue that you may have thought would need to be revisited on account of the Coronavirus pandemic is the date on which the Brexit transition period is set to end. However, the UK continues to insist that this date will remain 31 December 2020, a position which is being viewed with serious scepticism by commentators. For example, according to Alan Beattie in yesterday's FT: “You won't believe this, but the UK government is still currently planning for the Brexit transition period to end on December 31, despite UK businesses being fully occupied scrambling to deal with coronavirus. The joint committee to administer the EU-UK withdrawal agreement meets today, but the talks about a final trade deal are going nowhere. Boris Johnson's government is currently ignoring pleas from the likes of the Freight Transport Association, which knows a thing or two about trade logistics, to extend the transition. There's being principled and then there's being single-minded and then there's being bull-headed and then there's running face-first into a brick wall at full speed. Anyway. They've got till July 1 for sanity to return." (The reference to July 1 is the date by which, under the terms of Article 132 of the Withdrawal Agreement, the two sides can agree to extend the transition period by either one or two years beyond the current deadline date of 31 December 2020.)

A further issue to be aware of is the fact that the UK is yet to table a legal text, whereas the European Commission published a 440-page draft treaty on 18 March, covering every aspect of the future relationship. Despite Downing Street's public insistence that a similarly comprehensive text would be tabled earlier this month (see my previous posts), EU sources have said that, by last Thursday, the UK has tabled only four documents covering trade, transport, aviation and nuclear cooperation, but has not tabled legal texts on significant issues including security cooperation or fisheries, nor has it made its texts public. According to The Guardian newspaper: “EU sources also said the UK's positions in the texts were in a “different galaxy" to those of Brussels. “The first big difference is that we have a fully-fledged proposal in line with the political declaration while the Brits have only tabled a few things, much less than we expected", one senior EU diplomat said. “The scope is much narrower than we had thought it would have been and that makes it difficult to work with. That's the basic problem.""


Coronavirus 1 – Brexit 0


As expected, the government confirmed today that the proposed UK/EU negotiating round, due to start in London tomorrow, has had to be cancelled on account of the Coronavirus pandemic. The government and the European Commission are looking at alternative ways to continue discussions, including investigating the possibility of video conferencing or conference calls.


Brexit - Battle of the Forms intensifies....


Round 2 of the UK/EU trade negotiations had been meant to kick off in London on Wednesday, although it is now appears that this week’s negotiations will have to be pushed back on account of the Coronavirus pandemic.

In my last post, I mentioned that both the UK and the EU seem determined to seize the initiative in the negotiations, with both sides announcing that they were intending to table alternative versions of a Free Trade Agreement.

Nothing has appeared yet from the UK side, but last Friday the Guardian newspaper reported that it had seen a copy of a 441-page draft UK/EU treaty produced by the EU (a document which has not yet been seen by the UK government) and that it included a provision under which the UK would have to guarantee “uniform implementation” of the EU’s state aid rules, and which stated that the European Court of Justice would be the arbiter of any disputes relating to the UK’s implementation of such rules, entitled to issue rulings to the British courts to implement. In addition, on Friday, Michel Barnier, the EU’s chief negotiator, tweeted: “We’ve sent a draft agreement on new partnership to [the European parliament] & [EU council] for discussion. It shows ambitious and comprehensive future relationship is possible. We must give ourselves every chance of success. We will publish the text after our exchanges & look forward to working [with the UK]”.

In response, David Frost, the UK’s chief negotiator, tweeted (rather euphamistically, possibly): “We announced on 9 March we would share a draft FTA & other texts shortly. Thank you for making clear the EU will too.”

In the current extremely uncertain times caused by the Coronavirus pandemic, it is difficult to judge when it will be safe for the parties to gather round the negotiating table again .. which potentially calls into question the UK’s stated aim of ending the transition period by no later than the end of this year … only time will tell…


Brexit: who will win the “battle of the forms"? 


Ahead of the next round of negotiations between the UK and the EU, due to take place in London from 18th to 20th March, the stage has been set for an interesting “battle of the forms" – i.e. which party's form of draft Free Trade Agreement (FTA) will form the basis of the future negotiations? 

During the negotiations of the Withdrawal Agreement in 2018-2019 the EU had taken the initiative in terms of drafting the underlying agreement, which UK critics of Theresa May's negotiating style said gave the EU a distinct advantage in terms of the final agreed deal.

In relation to the FTA which the UK and the EU are currently negotiating the EU had, once again, anticipated that it would be taking on the drafting role, not least because the UK has no recent experience of negotiating FTAs - as opposed to the EU which has broad-ranging and decades-long experience of doing so. Indeed, there had even been some concern in Brussels that the UK would not be able to “keep up" with the EU in terms of the detailed negotiation required on a number of different fronts at the same time.

Therefore, it caused some surprise, not to say consternation in Brussels yesterday, when Michael Gove made a written ministerial statement saying that the UK was proposing to “table a number of legal texts, including a draft FTA" before next week's meetings in London.  According to the Financial Times, an ally of Boris Johnson's has said: “We are producing the text because we are ready to do it. It is not a bespoke trade deal — it is a text based on the precedent of deals the EU has already struck with sovereign third countries." One commentator described this approach (i.e. picking and choosing terms from other FTAs which the EU has previously signed) as being an exercise in cherry picking with the aim of creating a cherry cake – and that this approach was likely to be given short shrift by the EU.

Another area of contention is the overall format of the agreement governing the future relationship between the UK and the EU. The future relationship would be governed by an FTA as well as other agreements covering the subject areas currently under negotiation between the UK and the EU: e.g. energy and civil nuclear cooperation; fisheries; law enforcement and judicial cooperation in criminal matters, etc.

The EU has long been in favour of adopting “association agreements" for these types of international treaties – essentially an overarching “framework" arrangement including an FTA allied to agreements covering co-operation in areas of mutual interest, as described above. Indeed, the Political Declaration signed by the UK and the EU last October specifically stated: “The future relationship should be based on an overarching institutional framework covering chapters and linked agreements relating to specific areas of cooperation, while recognising that the precise legal form of this future relationship will be determined as part of the formal negotiations. … The Parties note that the overarching institutional framework could take the form of an Association Agreement." However, in a move away from this position, the UK last week, during the first stage of negotiations, indicated that it no longer wished to enter any form of framework agreement, preferring instead to have separate stand-alone agreements covering specific areas.

Whereas last week's kick-off meetings in Brussels were relatively low-key and staid affairs, we can expect the gloves to come off and the fireworks to start to fly when round II kicks off in London next week … watch this space!


Negotiation of the future UK/EU relationship - the first steps on a long hard road...


Although rather overshadowed by the Coronavirus outbreak, last week saw the negotiation phase of the UK's and EU's future relationship kick off. The terms of reference for the negotiation agreed by the parties provided for the simultaneous negotiation of 11 separate strands* of the future relationship - the simultaneous nature of the negotiation recognising the ticking clock imposed by the requirement (set out in the Political Declaration) for the parties to “convene at a high level in June 2020"  to “take stock of progress". In a report published last Thursday, the House of Lords European Union Committee observed that this truncated timetable, taken alongside the extent to which the positions of the two sides have hardened since the Political Declaration was signed last October, reduces the chances of a comprehensive agreement being signed by the parties.

The parties have agreed that there should be five separate negotiating rounds over the course of a 10-week period (with more to be added if mutually agreed) with the first round having taken place from Monday to Thursday of last week and the next one due to begin on Wednesday, 18th March. Addressing the media following the end of the first round of negotiations, Michel Barnier, the EU's chief negotiator, warned of “very, very difficult" areas of disagreement with the UK. In addition to the well-rehearsed areas of contention on issues such as financial services, fishing and “level playing field" commitments, M. Barnier stated that the UK's refusal to make binding commitments to continue upholding the European Convention of Human Rights posed a threat to future judicial and security co-operation. He also questioned the UK government's insistence that it would not extend the 11-month transition period, and highlighted its insistence on “a myriad of sectoral agreements" instead of one overarching deal as another point of contention.

In other Brexit-related developments, last Friday the NAO issued its report on the cost of Brexit across government, in which it stated that government departments had spent £4.4 billion to prepare for the outcome of Brexit. Of this, £1.5 billion was spent on activities such as building new systems and infrastructure, with a further £1.9 billion on staffing costs. In response to the NAO's findings, Meg Hillier, the chair of the Commons Public Accounts Committee, said: "The public has been kept in the dark as to what the Government has been doing. … Data is limited, and the Treasury seem unconcerned by the lack of transparency."

The 11 separate negotiating groups are as follows: 1. Trade in Goods 2. Trade in Services and Investment and other issues 3. Level Playing Field for open and fair competition 4. Transport 5. Energy and Civil Nuclear Cooperation 6. Fisheries 7. Mobility and Social Security Coordination 8. Law enforcement and judicial cooperation in criminal matters 9. Thematic Cooperation 10. Participation in Union Programmes 11. Horizontal arrangements and governance


Brexit battle lines are drawn... 


Earlier today the UK government published its EU Future Relationship negotiation document, a 36-page “wish list" setting out the scope of its aspirations for the negotiation of its future relationship with the EU, which is due to begin in Brussels on Monday next. As had been heavily trailed (most notably by the UK's chief Brexit negotiator, David Frost, in a speech delivered last week in Brussels) the UK is being extremely bullish in its stance, particularly in relation to the potential deal-breaker on the “level playing field" issue (see my blog post of yesterday for more details on this). The mood music emanating from Whitehall, where the Brexiteer arm of the Conservative Party is now firmly in the driving seat, is that the “level playing field" commitments which Boris Johnson signed up to last October in the (non-legally-binding) Political Declaration no longer, in reality, bind the UK government. According to PoliticsHome, sources close to the Prime Minister have said that, as far as he is concerned, the Political Declaration is no longer really worth the paper it's written on, given the 80-seat Commons majority he has won since then. This attitude is, not surprisingly, causing serious disquiet in Brussels, with the EU's chief Brexit negotiator, Michel Barnier, stating in relation to the Political Declaration that: “All the words count".

In addition, the UK's negotiating document states that the UK will break off negotiations in late June if little progress has been made by then, in order to focus on “continuing domestic preparations to exit the transition period in an orderly fashion." It also states that the UK will not request any extension to the current transition period (which is set to expire on 31 December 2020), and that its aim is to formalise an agreement by September.

All in all, it's a rather strange backdrop for the start of a negotiation which will require mutual trust and goodwill if it is to succeed. As battle lines are drawn ahead of next Monday's first meeting, the threat of a no-deal exit looms large once again.


Brexit Phase II: 'It will be difficult" (Michel Barnier) 


Brexit Phase II: ‘It will be difficult – but it’s already been difficult for the last three years.’ (Michel Barnier)

Yesterday the EU's Brexit negotiating mandate was approved by the EU's General Affairs Council, providing a basis for the EU/UK talks which are due to start next week. At the launch event, Michel Barnier (the EU's chief Brexit negotiator) said that the EU would not agree a deal 'at any price', and that the bloc would not climb down on its demands for a “level playing field" on future rules and regulations (i.e. an obligation on the UK to maintain the same standards as the EU on matters relating to the environment, waste, workers' rights, taxation and state aid).

The 46-page document covers a wide range of policy areas, from fisheries to security cooperation. It is anticipated that the deal will be structured as an EU 'association agreement', with a trade agreement at its core. The EU's negotiating position on the level playing field issue is on account of the UK's and EU's geographic proximity and economic interdependence, and resulting EU concerns that a deregulated economy on its doorstep could have major negative economic implications for its own economies. If the UK were to agree to accept these level playing field obligations, the “prize" would be duty-free and quota-free goods trade with the EU - something which no other trading partner has ever achieved. It is also worth noting that, with the exception of Russia, all of the EU's direct neighbours are in some form of trade arrangement with the EU involving almost full (as in the case of the EEA countries) or at least partial (as in the case of Ukraine) adoption of specified EU directives and regulations.

M. Barnier followed up his comments of yesterday in a speech he delivered earlier today in Brussels in which he said:

We are ready to offer to the UK super-preferential access to our markets - a level of access that would be unprecedented for a third country.

Is this something we can do without firm guarantees that the UK will respect the level playing field and avoid unfair competitive advantages? The answer, I'm afraid, is simple. We cannot.

We want competition in future but it must be fair - fair and free ...

That is why we are asking that the EU and the UK lay down together a number of rules building on our current high standards in specific areas: state aid, environmental protection and the fight against climate change, social and labour rights and taxation issues. This way we will make sure that somewhere down the road, perhaps in years to come, neither side will use unfair subsidies, nor grant derogations on industrial emissions or on labour standards to win industries from the other."

It is important to note that the UK signed up to a level playing field commitment in the Political Declaration it agreed with the EU last October (see para 77 for further details). Although the Political Declaration is a non-legally-binding document, it nonetheless requires the UK and the EU to negotiate in good faith (para 135) with the aim of reaching agreement on a free trade agreement by the end of 2020.  

However, over the course of the last few weeks there have been a series of briefings from the UK prime minister, his spokesman and from the UK's Brexit negotiator, David Frost, that the UK is not prepared to sign up to such level playing field commitments. According to the Financial Times: “The prime minister's allies said that Mr Johnson would not accept any demands from Brussels that Britain align with EU regulations on issues such as the environment, labour law and state aid as a price for securing a trade agreement. “We want a Canada-style deal, but ultimately our priority is taking back control," said one official close to Mr Johnson, admitting that failing to strike a deal could impose new friction for exporters at the border."

The UK's negotiating position is due to be published tomorrow (Thursday) and debated in parliament on the same day. One interesting development (from the standpoint of UK law firms advising on EU law) is that, according to Borderlex: “Insiders in London say that the UK will ask for provisions in the trade talks with the EU to which the equivalents of Canada or Japan would never have had access to. One of these is continued mutual recognition of qualifications for professional services, according to sources close to the file."

The parties are due to start negotiating in Brussels next Monday afternoon. Given the divergent negotiating positions, it is likely to take some considerable time before they can come to a  “landing zone" on mutually-acceptable terms – if they are to avoid the situation where the UK departs the EU without having agreed a future trading relationship. Expect lots of haggling in the coming days and months…

UK/EU Free Trade Agreement: The horse-trading begins...


It’s the first working day after the UK’s formal departure from the EU, and both sides have been quick off the mark with setting out their negotiating positions on a new trade agreement. First out of the blocks was Michel Barnier with a press conference at 10am this morning at which he launched the EU’s draft negotiating guidelines (which will require sign-off by the Council of the European Union, expected later this month). As anticipated, M. Barnier repeated the EU mantra highlighting the UK’s and EU’s geographical proximity and economic interdependence, and then went on to say: 

First, we need to make sure competition is and remains open, and fair. We have already agreed with Prime Minister Johnson that our future partnership will prevent, and I quote, “unfair competitive advantages”. We must now agree on specific and effective guarantees to ensure a level playing field over the long term.That means mechanisms to uphold the high standards we have in social, environmental climate, tax and state aid matters today, and in their future developments.

Second, our free trade agreement must include an agreement on fisheries. This agreement should provide for continued, reciprocal access to markets and to waters with stable quota shares.

This was followed by a speech by Boris Johnson at Greenwich Naval College at 11am (see here for a summary version), in which he set out his “opening bid” on whether the UK would continue to abide by EU rules, stating: “There is no need for a free trade agreement to involve accepting EU rules on competition policy, subsidies, social protection, the environment, or anything similar any more than the EU should be obliged to accept UK rules.” And on fishing rights, he said that he would be willing to allow EU boats access to UK waters – but only on condition that such arrangements were reviewed annually, rather than the long-term arrangement involving “stable” quota shares which the EU is seeking.

The pound has fallen sharply today in the light of Boris Johnson’s speech, which has renewed fears of the UK leaving the transition period at the end of the year without a trade deal. 


So where do we go from here? 


As the seconds tick down to the UK's departure from the EU at 11pm tonight, the first part of the Brexit saga finally comes to an end, after three and a half years of political turmoil. However, because of the UK and the EU having agreed a transition period until the end of 2020, the legal landscape remains virtually unchanged until then.
From tomorrow, attention turns to the negotiation of the future trade agreement to apply between the UK and the EU from the end of the transition period – provided, of course, it proves possible for the two sides to agree terms. If not, then the UK will face a trade cliff-edge at the end of the year, and future trade with the EU will default to WTO (World Trade Organisation) terms.
So, what is the likelihood that it will prove possible to agree a free trade agreement (to include no tariffs and no quotas on goods) with the EU? 
The EU is due to publish its negotiating mandate in the next week or so, but it's a safe bet that its two “red lines" will be: (1) a commitment by the UK to maintain its current level of regulation in relation to employment standards, environmental standards and tax by way of a “non-regression" obligation, and to keep pace with all future EU competition and state aid rules (so-called “dynamic alignment"); and (2) an agreement to permit EU fishing in UK territorial waters. The reason why the EU is so insistent on the “level playing field" commitment described in (1) is because it fears that a deregulated UK (“Singapore-on-Thames") right on its doorstep could have enormous adverse consequences for its economies.
The UK is also due to publish its own negotiating mandate – probably in the next fortnight – but there has already been a number of comments made by both Boris Johnson and the Chancellor of the Exchequer, Sajid Javid, about the UK no longer being a “rule taker", which has caused considerable disquiet to those British businesses (such as car manufacturing, pharmaceuticals and food & drink suppliers) who rely heavily on compliance with the EU regulatory landscape in order to sell their products in the EU. Whereas future “frictionless trade" with the EU was treated as the Holy Grail by Theresa May, Boris Johnson appears much more sanguine about the possibility of such non-tariff barriers being introduced. 
Suggestions from Whitehall that the UK would even be prepared to accept tariff barriers on some goods as the price for diverging from EU standards have concerned officials in Brussels. The Guardian quotes an unnamed EU official as saying: “If we start talking about tariffs, there is no chance of a trade deal by the end of the year, as it becomes a very complicated discussion among the member states".
So the possibility of the UK and the EU being unable to agree a future trade deal by the end of the year is still a very real one…


Current status of the EU (Withdrawal Agreement) Bill


Early last week the House of Lords began its examination of the European Union (Withdrawal Agreement) Bill, whose purpose is to ratify and implement the Withdrawal Agreement between the UK and the EU. On Monday and Tuesday of this week, during the Report stage of the Bill, the HoL voted in favour of five separate amendments to the Bill, as follows:

  1. Amendment 1 in relation to rights of residence of EU citizens, including the requirement for the provision of physical document providing proof of residence. Members voted 269 in favour and 229 against.
  2. Amendment 12 to remove the powers of ministers to decide which courts and tribunals can depart from judgments of the Court of Justice of the European Union. Members voted 241 in favour and 205 voted against.
  3. Amendment 14 relating to Supreme Court decisions to depart from EU case law. Members voted 206 members in favour and 186 voted against. 
  4. Amendment 18 to ensure the continuation of the refugee children and family reunification provisions of the European Union (Withdrawal) Act 2018, proposed by Lord Dubs. Members voted 300 in favour and 220 against.
  5. Amendment 20 regarding taking note of the Sewel Convention, which ensures that the UK Parliament may not legislate for devolved matters without the consent of the devolved legislature. Members voted 239 in favour and 235 against.

The Bill had its Third Reading in the House of Lords last night, and has now moved on to the so-called “ping pong” stage, the back and forth consideration of proposed amendments made by each House. This afternoon the House of Commons considered each of the above amendments, and in the past few minutes has voted down every one of them, including the emotive Dubs amendment on child refugees.  Royal Assent for the Bill is expected early next week, paving the way for the UK to leave the EU on Thursday week, 31 January 2020.


Brexit - what will 2020 bring?


Last night, causing barely a ripple in the political news cycle, MPs finally approved a Brexit deal, with the European Union (Withdrawal Agreement) Bill (WAB) passing its Third Reading in the House of Commons by a majority of 330 to 231. The new House of Commons had agreed to undertake the remaining parliamentary stages of the WAB in three days (Committee Stage on 7 and 8 January 2020, and Third Reading on 9 January 2020), which was described by the Hansard Society as “an extraordinarily reduced amount of scrutiny for a bill of the WAB’s complexity and constitutional importance”, and which reflects the speed and flexibly with which many parliamentary events can take place when a government commands a significant House of Commons majority.

The WAB now moves to the House of Lords, where it is expected to be passed without too much opposition, not least because “getting Brexit done” was a Conservative Party manifesto pledge, and there is a political convention that the House of Lords will not stand in the way of legislation implementing manifesto pledges made by the ruling party. Therefore, the stage is now set for the UK to finally leave the EU on 31 January 2020 - although it will continue to be treated as a member of the EU until the end of the transition period, currently scheduled for 31 December 2020. Attention now turns to phase II of Brexit: the negotiation of the future relationship between the UK and the EU, particularly in relation to trade.

On Wednesday, the President of the European Commission, Ursula von der Leyen, made clear her reservations surrounding Boris Johnson’s plan to conclude negotiations on the future relationship between the UK and the EU by the end of the year. Speaking at the London School of Economics, she said: “Without an extension of the transition period beyond 2020, you cannot expect to agree on every single aspect of our new partnership”, adding that the UK could face difficult trade-offs between market access and regulations: “Without a level playing field on environment, labour, taxation and state aid, you cannot have the highest quality access to the world’s largest single market.” The EU’s chief negotiator, Michel Barnier, in a speech delivered yesterday in Stockholm, reiterated this message, referring to the “hugely challenging timescale” being proposed by the UK.

According to the Guardian newspaper: "A scrappy, relatively unambitious, low-alignment trade deal is arguably the most plausible landing zone, in contrast to a deal that keeps both sides economically close and the UK locked into the EU’s regulatory orbit”. This excellent blog post by David Henig, an international trade expert who used to work for the British government, provides a step-by-step guide to the enormous task which lies ahead over the coming months in terms of trade negotiations: from financial services to data protection and the host of other matters in between…


Queen's Speech sets out Brexit-focussed legislative agenda


Yesterday the Queen delivered her second Queen's Speech of 2019, setting out the Conservative government's legislative agenda for the coming parliamentary session, one which is dominated by Brexit.

The majority of the bills had previously been aired as part of Her Majesty's speech on 14 October 2019, before the general election was called. Indeed, a number of the Brexit-related bills - including on trade, agriculture, fisheries, immigration, financial services and private international law, as well as the European Union (Withdrawal Agreement) Bill - were first put forward by Theresa May's government in July 2017, but failed to pass due to the lack of a Conservative majority in parliament. These bills are required to grant the government basic functions currently governed by EU law.

As had been trailed in the media, the revised European Union (Withdrawal Agreement) Bill seeks to fetter the UK government's ability to seek an extension of the Brexit transition period beyond 31 December 2020, with Section 33 of the draft bill proposing the a new provision prohibiting the extension of the implementation period:

“15A Prohibition on extending implementation period

A Minister of the Crown may not agree in the Joint Committee to an extension of the implementation period."

There is also a proposal in the Queen's Speech to give new powers to British judges to depart from previous rulings of the European Court of Justice (ECJ). Under the European Union (Withdrawal Agreement) Act 2018, the power to depart from ECJ rulings had been reserved to the Supreme Court and the High Court of Justiciary in Scotland. However, the new proposal would allow the lower courts to also depart from such rulings. Crossbench peer Lord Pannick QC, who acted for businesswoman Gina Millar in her two Supreme Court cases against the government over its handling of Brexit, has cautioned against the measure, saying that it would "cause very considerable legal uncertainty".

Just one of many uncertanties which Brexit has unleashed...


Getting Brexit done - Boris plans to remove option to extend Brexit transition period


According to the BBC, and in a move which has delighted the right wing of his party, Boris Johnson is planning to use his General Election mandate to “Get Brexit Done” to remove the option (set out in the version of the European Union (Withdrawal Agreement) Bill which was laid before the last Parliament) to extend the Brexit transition period by either one or two years. This will significantly ramp up negotiating pressure in terms of a trade agreement with the EU, as well as increasing the likelihood of the UK leaving the EU on 31 December 2020 without a trade deal, meaning that the trade relationship would default to World Trade Organization (WTO) terms. The move is likely to be seen in Brussels as a direct riposte to new European Commission President Ursula von der Leyen, who has said that the current timetable is too short to negotiate a new trade deal: EU chief Brexit negotiator Michel Barnier has also called the current timetable for the trade negotiations “unrealistic”.

As well as ruling out an extension of the transition period, the Independent reports that the amended European Union (Withdrawal Agreement) Bill may omit previous "provisions to ensure that workers' rights were not weakened after Brexit".

In addition, Mr Johnson is also planning to use his 80-seat majority in the House of Commons to speed the revamped EU Withdrawal Agreement Bill through Parliament at breakneck speed. It is due to be published this Thursday after the government’s legislative programme has been set out in the Queen’s Speech at the ceremonial State Opening of Parliament, and it is understood that the new Speaker of the House of Commons will be asked to break with parliamentary tradition by allowing both the first and second readings of the Bill to be held on the same day: this coming Friday.

The Conservative election manifesto also included policy commitments to repeal the Fixed-term Parliaments Act and to establish a Constitutional Democracy and Rights Commission to consider (inter alia) powers of judicial review. The independent think-tank, the Institute for Government, cautions that “the proposed review could be code for returning the power to call an election to the hands of the prime minister – and perhaps even strengthening the role of the executive further. If any review becomes about consolidating the power of ministers, there will be demands for reciprocal checks and balances in Parliament or the courts.”


General election polls: what do they mean for Brexit?


It’s now 24 days to the general election. Brexit has not taken up as much of the pre-election airwaves as might have been expected, with the NHS and (to a lesser extent) full-fibre broadband instead becoming the key political battlegrounds. Three recent opinion polls, by YouGov, Deltapoll and Opinium, all give the Tories double-digit leads, enough to give them a comfortable Commons majority if this outcome were to be replicated on 12 December. According to Prof John Curtice, if the Conservatives maintain at least a 10-point lead, this would make it highly likely that they would obtain a majority large enough to allow Mr Johnson to get his Brexit deal ratified. Prof Curtice has stated that: “The target lead for the Conservatives is probably around 6-7 points. If it falls below that we are looking at a hung parliament.” Given the current size of the Conservative Party’s lead in the polls, and with momentum moving in their favour, it is looking increasingly likely that they will be able to form a majority government after the election and pass Boris Johnson’s Brexit deal by the end of January 2020 (even allowing for the usual Christmas recess period), which would mean that the UK would leave the EU on 31 January 2020.

In terms of business sentiment, a number of analysts have given their view that a workable Conservative majority in the House of Commons would boost sterling as it would offer a clear way ahead in terms of Brexit - as well as removing the chance of a no-deal exit - whereas any other result, while increasing the chances of a market-friendly “softer” or cancelled Brexit, would also come with likely delays and considerable uncertainty – both anathema to business.

On a separate note, last Thursday (14 November) the European Commission launched infringement proceedings against the UK for breaching its EU treaty obligations by failing to name a European Commissioner, and has given the UK until 22 November 2019 to respond. The UK had previously written to the European Commission to explain that UK pre-election guidance meant that it should not normally make nominations for international appointments - but the European Commission emphasised that the UK's obligations under EU law took precedence.


Brexit – where do we go from here?


You will have noticed that it has all gone rather quiet on the Brexit front.  Ahead of the General Election on 12 December, Parliament dissolved at 00.01am last Wednesday, bringing all parliamentary business to an end, including causing all legislation currently in progress to fall away, including the European Union (Withdrawal Agreement) Bill. This is because the forthcoming election has triggered rules requiring the government to “observe discretion in initiating any new action of a continuing or long-term character” (i.e. any new policies or commitments) during the pre-election period, as well as preventing the Civil Service from being used for any purpose which could benefit whichever political party is currently in power. Indeed, you may have seen that Sir Mark Sedwill, the head of the Civil Service, was forced to intervene last week to stop the publication of Treasury analysis of the Labour Party’s proposed spending plans.   

So, how likely is it that the Conservative Party will obtain an overall majority of seats in the General Election, thereby enabling it to pass a meaningful vote on the terms of the draft Withdrawal  Agreement which Boris Johnson agreed with the EU last month? A so-called “mega-poll” published last Friday by YouGov found that there had been around a four per cent swing from Labour to the Conservatives, which would see the Conservatives gaining a large chunk of seats from Labour, in places such as Barrow and Furness, Great Grimsby, Workington, Bridgend, Gower and Stoke-on-Trent Central. The BBC's Poll Tracker puts the Conservatives on about 38% and Labour on approximately 27%. According to YouGov, the Brexit Party's decision, announced earlier today, to stand aside in Conservative-held seats but not in Labour-held seats will likely make very little difference to the overall outcome.

If the Conservatives were to end up triumphing at the election, and a Withdrawal Agreement were to be signed and sealed by the end of January 2020, would this mean that Brexit would finally be "done and dusted"? Unfortunately not. To misquote Winston Churchill, this outcome would not be the end, or even the beginning of the end - but it would, perhaps, be the end of the beginning. This is because the Withdrawal Agreement sets out the terms of the "divorce" between the UK and the EU, but NOT the basis of the future trading arrangements between them.

This is because the EU made clear, right at the beginning of the Brexit negotiations, that it was not prepared to discuss future trade relationships until the terms of the UK's withdrawal from the EU had been agreed.

So even if a Withdrawal Agreement is ratified, all it does is to kick the possibility of a no-deal Brexit down the road until 31 December 2020 - the date set as the end of the transition period and therefore when the new trading arrangements (if any) would kick in. The problem is that few experts believe that it is possible to negotiate a trade deal in that time, raising the possibility of the UK crashing out of the EU on 31 December 2020 without a trade deal. Indeed, this view was reiterated by the EU's Michel Barnier who suggested recently that it would take 2-3 years to negotiate a trade deal.  

Note that there is an option in the draft Withdrawal Agreement for the UK to request an extension of the transition period of either one or two years, by way of a one-off request which would have to be made by 1 July 2020. However, Michael Gove has said that a Conservative government would not ask for a transition extension. Ex-Justice Secretary David Gauke, who lost the Tory whip after rebelling over Brexit, has said that it would be "reckless" to exit transition without a trade deal being in place, and that MPs must be given a vote before this could be allowed to happen. Sky News reports, however, that the Prime Minister's Official Spokesperson confirmed on Friday that MPs will NOT be given a vote on whether to extend the transition period - which means that a no-deal Brexit on 31 December 2020 is still a real possibility.

And just to add to the pressure, credit ratings agency Moody’s has now changed its outlook on the UK’s (Aa2) rating from stable to negative, stating that Brexit has been a catalyst in an “erosion in institutional strength” which is seriously undermining faith in the UK.

So we are still a very long way from being out of the woods, as far as a possible no-deal Brexit is concerned.


General Election – 12th December 2019


To misquote the College of Cardinals ... habemus diem! 

Earlier this evening, after a Labour amendment to the Early Parliamentary General Election Bill seeking to bring forward the proposed date of the general election from Thursday, 12th December to Monday, 9th December had been defeated by MPs by 315 votes to 295, the House of Common voted to approve the third reading of the bill by 438 votes to 20.  The bill will begin its passage through the House of Lords tomorrow - where it is not expected to be opposed.

Therefore, it is now almost certain that the country will be going to the polls on Thursday, 12th December - the first December general election since 1923 (the same year as Howard Carter unsealed the burial chamber of Pharaoh Tutankhamun, Time Magazine hits the newsstands for the first time ... and Queen Elizabeth's parents married in Westminster Abbey). Once the bill receives royal assent, Parliament will be dissolved next Wednesday, the required 25 working days before the election date, and official campaigning will get underway. So, will the Conservative Party increase its majority this time around, or could there be a resurgence by the Lib Dems? All will be revealed on Friday, 13th December ...


Do you have anything in the diary for Monday 9 December?


No? Then you may soon have…

As you may have seen, the EU has earlier today confirmed that it will be granting a 3-month Brexit extension until 31 January 2020 (to be precise, this is a “flextension” – i.e. if Westminster signs off the draft Withdrawal Agreement before then, and the related legislation become law, then Brexit can take place sooner than that.) There are a number of conditions imposed: according to a representative of the French government, these are: (1) that the withdrawal agreement isn’t renegotiable, (2) that the UK would follow a code of conduct and allow the EU’s 27 members to meet to discuss other issues for their future [such as the budget], and (3) that the UK must legally appoint a commissioner if the European commission sits before the UK leaves.

The government has now finally conceded, albeit obliquely, that the UK will now NOT be leaving the EU this Thursday, with a No. 10 spokesman this morning referring to the Hallowe’en deadline in the following terms (note the conditional tense): “What the prime minister has done, despite being told it was impossible, was secure a deal and set out a timetable which would have allowed us to deliver that deal on 31 October. Parliament has stood in the way of being able to deliver Brexit.” 

The government has tabled a motion for later today, proposing that an early general election be held on Thursday 12 December. As it needs a two-thirds majority to pass (under the terms of the Fixed-term Parliaments Act 2011) this is unlikely to pass. However, the Liberal Democrats and the Scottish National Party have said that they would support an election taking place three days earlier, on Monday 9 December (the 3 days are important, as it would reduce the risk that the government would be able to railroad the Withdrawal Agreement Bill through parliament by then). The reason the Lib Dems want an early election is because they want to capitalise on their anti-Brexit credentials, making it essential to go to the country before Brexit becomes law; the reason the SNP allegedly want an election now is because Alex Salmond’s trial on various sexual assault charges is scheduled for early in the New Year. The plan would be for a one-line Act to be passed, which would require only a one-vote majority rather than a two-thirds majority – although time is tight on account of the pre-election parliamentary dissolution timetable requirements, and the Labour Party could choose to table amendments which would slow up the process. 

But all the signs are there that it’s now looking very likely that we will be having a general election on 9 December….


Brexit "in limbo" until EU decides whether to grant extension or not ... 


As a result of his failure last night to force through an accelerated timetable for reviewing the European Union (Withdrawal Agreement) Bill (which would have required the House of Commons to undertake a line-by-line scrutiny of a 110-page bill giving legal effect to a 585-page withdrawal agreement in 48 hours) Boris Johnson has “paused" the legislative process until the EU decides whether to grant an extension to the current Brexit departure date of 31 October 2019. This is now looking to be a likely outcome, given that Donald Tusk has confirmed that he will recommend that the EU27 accept the UK request for an extension. In addition, the taoiseach (Irish prime minister) Leo Varadkar has confirmed that he supports the proposal to grant the UK's request.

If this approval is confirmed, Mr Johnson has said that he will push for an immediate general election. The justification for doing so is anything but obvious, and seems to be on the basis of Brexit being delayed against “the will of the country" as a reason for an early election framed as a battle to “get Brexit done". It also may be because he fears that anything more than an extremely cursory examination of the withdrawal agreement - which is all that would be possible within a 48-hour review period - would expose to detailed scrutiny various potentially problematic provisions, particularly in relation to workers' rights and the environment, which would stop the bill in its tracks.

As I mentioned in my post yesterday, on account of the Fixed-Term Parliaments Act 2011 (FTPA), a decision on when to call an early general election is not in the PM's gift: he must first obtain support from two-thirds of MPs in a motion supporting one. And it now looks like he may get this support, as today's Guardian newspaper reports:

Labour is ready to vote for a general election as soon as EU27 leaders have signed off on a Brexit extension, despite the desire of some senior party figures to secure a referendum first, the Guardian understands. Labour has twice abstained when the prime minister asked for an election under the terms of the Fixed-term Parliaments Act, which requires a two-thirds majority. But Jeremy Corbyn has repeatedly said that once an extension was in place he would support a poll and a Labour spokesperson confirmed … that remained the party's position. “Extension, then election," he said."

And even if Labour do not come on board in terms of supporting a call for an early election, there could be ways around the FTPA. One way would be for the government to introduce a bill proposing an election date "notwithstanding the terms of the Fixed-term Parliaments Act". This route would only require a majority of one, but it would need to go through the normal legislative stages in both the House of Commons and the House of Lords, where there would be a risk that it could be amended. A complete “last-ditch" measure would be for the Prime Minister to call a no-confidence motion in himself. Such a motion would, under the terms of the FTPA, only require a simple majority to pass, and it would trigger an automatic early election - PROVIDED opposition parties failed to form an alternative government within the 14-day period stipulated in the FTPA which, although unlikely if Jeremy Corbyn were to insist on becoming the PM in the alternative government, cannot entirely be ruled out.


Boris's ultimatum gamble...   


In an effort to exert maximum pressure on MPs to agree to the proposed expedited timetable for passing all the parliamentary stages of the European Union (Withdrawal Agreement) Bill, No. 10 has just announced that, should MPs vote later today not to agree the proposed three-day programme for it to pass all its parliamentary stages before the end of the month, (and, if as is expected, the EU confirms its agreement to an extension of the Brexit deal) then the government will abandon its Brexit bill and push for an general election. A No 10 source told the BBC: "We won't waste further months with this Parliament."

This is obviously a rather desperate ploy to get MPs to back the timetable, as, under the Fixed-term Parliaments Act 2011, there needs to be a two-thirds majority of MPs in favour of calling a general election, if one is to be held before the normal 5-year term.   So, it's not actually in Boris's gift to decide when the next general election will be.


European Union (Withdrawal Agreement) Bill 2019-20 published 


Last evening at around 19.00 BST the government published its 110-page Brexit Bill.  MPs will now vote on this, and if it is backed, they will be asked to approve a three-day timetable to fast-track the legislation through the Commons by this Thursday.


Brexit - where are we now? 


1. What exactly happened on "Super Saturday"?

Fresh from his trip to Brussels where he succeeded in getting the EU to agree to amend the terms of the Withdrawal Agreement, the Prime Minister's task on Saturday was two-fold: to have a "meaningful vote" in the House of Commons to approve the terms of the Withdrawal Agreement (the "meaningful vote" being an amendment to the European Union (Withdrawal) Act 2018 which Dominic Grieve MP - the former Conservative Attorney General - had convinced the House of Commons to vote to insert in the Act back in 2018) and thereby avoid having to write to Brussels to request an extension to the Brexit deadline, as he would have complied with the terms of the Benn Act (which required Parliament to have passed a motion approving the terms of the agreement - or to have voted to leave without a deal - by 19th October if the PM was to avoid having to write to Donald Tusk to request an extension of the Brexit deadline to the end of January 2020).

In the end, he failed on both counts.

Please fasten your seatbelts ... this is where it all gets a bit complicated....

The reason he failed was because Oliver Letwin MP managed to: (a) obtain permission from the Speaker, John Bercow, to include his  proposed amendment to the motion on the order paper; and (b) then win a majority for this amendment by 320 votes to 306, through a combination of votes of most Labour MPs (although some voted with the government), the SNP, the Lib Dems and the smaller opposition parties - as well as the Democratic Unionist Party. 

That motion read: " ... in light of the new deal agreed with the European Union, which enables the United Kingdom to respect the result of the referendum on its membership of the European Union and to leave the European Union on 31 October with a deal, this House has considered the matter but withholds approval unless and until implementing legislation is passed."  (The Letwin amendment wording is the text in bold.)  

Since the Benn Act required MPs to have voted to approve the wording of the Withdrawal Agreement by 19th October if Mr Johnson was to avoid having to write to Brussels, this withholding of approval until the implementing legislation had been passed meant that there was no point in the vote on the motion going ahead as it would not have satisfied the test in the Benn Act - so the government pulled the vote, which meant that the PM therefore had to comply with the terms of the Benn Act...  which he did (after a fashion) by arranging for an unsigned copy of the "Brexit extension request" letter to be passed to Donald Tusk by Sir Tim Barrow, the UK's representative in Brussels, explained the first letter complied with the law as agreed by Parliament, and sending alongside it a (signed) letter stating that he believed a delay would be a mistake. 

On the EU side, there has been no official response yet to the contents of the letter, other than Mr Tusk confirming that he received it and that he would now consult EU leaders "on how to react". What will the EU make of this? Will it grant a third extension to a UK government that doesn't actually want it? France and Ireland have already warned that a further delay isn't guaranteed. 

By introducing this amendment, Oliver Letwin has cleverly also closed a lacuna in the Benn Act, which could potentially have resulted in a situation where, if the House of Commons HAD voted in favour of a Withdrawal Agreement by 19th October (which would have meant that no extension letter would have been required to be sent) there would have been a risk that a no-deal Brexit might still have taken place on 31 October if it proved impossible time-wise for all the various stages of the enabling legislation - the EU (Withdrawal Agreement) Bill -  to make its way onto the statute books by 31st October or, more cynically, if MPs who might prefer a no-Deal Brexit over the terms of the Withdrawal Agreement had decided to vote in favour of the Withdrawal Agreement in the "meaningful vote" motion, but against it when it came to the enabling legislation, meaning that it would not become law by 31st October. As explained by ex-Tory MP Stephen Hammond: "it is born out of is the concern that someone might choose to vote for [the] deal, thereby satisfying the Benn Act, and then choose to do something either by accident or by design which frustrates the implementation bill and then there is a  possibility of us leaving the European Union without a deal."  Such suspicions were further fuelled when Brexiteer John Baron let slip that he was prepared for 'no-deal' after a transition.

The House of Commons Library have produced a Briefing Note which provides further information on Saturday's vote.  

2. What will happen this week?

Undaunted by this failure, Boris Johnson has said that he will nonetheless start the parliamentary process for the underlying legislation by publishing the proposed Withdrawal Agreement Bill, prior to its being given its First Reading in the House of Commons. In addition, he has also announced that he will make a second attempt to hold the "meaningful vote" later today, presenting MPs with a straight choice of either approving or opposing the deal in principle. Whether the Speaker will allow that, though, is unclear, as he could rule it out on the grounds that it amounts to debating the same matter twice. What we do know is that there will be an almighty parliamentary battle this week as Mr Johnson seeks to push his Brexit bill through the Commons by the end of the week to enable him to meet his own 31st October deadline - even if the EU offers an extension until the end of January. The opposition parties are already preparing a range of amendments - including one on so called confirmatory referendum. More likely to garner support, however, is a move by Labour to keep the UK within a customs union - significantly the DUP have not closed the door to such an option. There are so many different ways that things could go at this stage: the BBC has produced a useful flowchart setting out the various scenarios which might occur.


Brexit – #DEAL - Revised withdrawal agreement / revised political declaration


After a week of intense negotiation, Jean Claude Juncker announced earlier today “a fair and balanced deal” between the EU and the UK which he said provided certainty, protected citizens and protected the single market, without introducing a hard border on the island of Ireland.

Boris Johnson recognised and praised the work on both sides stating that the deal was “very good” for both the EU and the UK, that it would enable the UK to enter free trade deals while providing a solution for Northern Ireland and the Republic of Ireland, and that the UK would be free to make its own decisions about its laws, money and borders.

Both men, on first name terms at the press conference shortly after 1pm London time today, encouraged the parliaments they each represent, the EU Parliament and the UK Parliament in Westminster, to support the deal, so that the EU and the UK can swiftly move on to focussing on their future relationship. Negotiations on the basis of the Political Declaration on the future relationship, and the parallel bilateral agreements to be negotiated and entered into, they said, will start on 3 November 2019.

Most of the draft Withdrawal Agreement between the UK and the EU prepared by Theresa May, which was rejected three times by the House of Commons, still stands, other than a revised Protocol on Ireland/Northern Ireland. Yet a large amount of that Protocol, consisting of 19 articles and 6 annexes, is also the same or very similar to the old one!

Withdrawal Agreement – revised Protocol on Ireland/Northern Ireland (64 pages)

The Withdrawal Agreement, with the new Protocol, needs to have the approval of enough Conservative, Labour and DUP MPs, and possibly including the 21 MPs who lost the whip, in order to be voted into law. Recently concerns have been focussed on trade in and around the current border between the Republic of Ireland and Northern Ireland. The emphasis and spirit of the Protocol is on cooperation and to maintain peace in the region, with as little impact as possible on the everyday lives of communities in the Republic of Ireland and Northern Ireland. For example, there will be no physical border, installations, border checks or controls.

Northern Ireland will remain part of the UK and part of the UK’s internal market. It will remain part of the customs territory of the United Kingdom and will benefit from UK’s own international trade policy. The Common Travel Area between the UK and Ireland for UK and Irish citizens will continue.

The devil is in the detail in terms of how movement of goods and customs will work. No customs duties will apply to goods moving from anywhere in the UK to Northern Ireland. However, if the goods are actually intended for the EU, i.e. transiting Northern Ireland, then they will become subject to EU rules. Likewise, for goods transiting via Northern Ireland from the EU to the UK, UK rules would apply. Identifying the ‘risk of subsequently being moved into the Union’ will depend on whether those goods would be subject to commercial ‘processing’, meaning alteration or transformation. The criteria necessary to help establish working practices will take into account: (1) the final destination and use; (2) the nature and value of the goods; (3) the nature of the movement and the incentive for undeclared onward movement into the EU, and will be set out by the end of the transition period, currently 31 December 2020 by the Joint Committee set up between the EU and the UK. This is effectively the customs border in the Irish Sea discussed in the press, so the details of this still have to be worked out in practice. So EU customs processes will apply to goods into Northern Ireland intended to reach the EU. There are some technical provisions in the Protocol on rules of origin and labelling, with EU standards being applicable on certain goods, and certification needed for goods on the island of Ireland. The VAT position could be different for goods in Northern Ireland, with the UK imposing EU rules with some exceptions in relation to VAT and excise duties.

That said, all of these provisions are couched in language of cooperation and compromise, with reference to ‘constant review’ and taking into account the ‘special circumstances’ of Northern Ireland.

There will be a Specialised Committee established to facilitate implementation of the Protocol, examine proposals and make recommendations on the functioning of the Protocol.

The new provision on ‘Democratic consent in Northern Ireland’ (article 18), will also give the political players a chance to have their say. But timing is everything. So, if the Withdrawal Agreement is passed and is signed, there will be a transitional period until 31 December 2020. Then, four year later (in fact, 2 months before the end of that period, on 31 October 2024) the Northern Irish authorities will have the opportunity to vote on whether to continue with the arrangement or not. If they vote against it, it will not cease to have effect until two years later - likely to be at the end of October 2026. Should they vote to continue with it, it will be another four years before the next review – likely to be 2028 – which, in the event of a negative result, would mean the arrangements ceasing to have effect in 2030. If approved, then it would be another eight years before they would have another opportunity to vote, which would mean the arrangement being in place until 2036. By then, clearly many of the main political players will long since have been out of the picture, politically speaking.

All of this, of course, assumes that the Northern Ireland power-sharing assembly at Stormont, which is currently suspended, can get back up and running. The Protocol takes into account sectarian rivalries in the region as it requires cross-community support with weighted majority voting and with support from both the unionist and nationalist delegations, without naming the parties or the personalities involved.

Political Declaration on the future relationship between the UK and the EU (27 pages)

Trade - While trade had been a big sticking point for the Protocol and what tariffs could apply has been vexing business for some time now, the EU and UK state in the Declaration that “prosperity and security are enhanced by embracing free and fair trade”. The parties plan to have an ambitious trading relationship based on a Free Trade Agreement between the UK and the EU. This would ensure no tariffs, fees, charges or quantitative restrictions across all sectors. Modern rules of origin and customs arrangements are to be put in place, with a programme of administrative cooperation and mutual recognition of trusted traders. These techniques will be key in ensuring there is no hard border on the island of Ireland.

Financial services – By committing to preserving financial stability and market integrity, the parties agree to close cooperation. Equivalence frameworks will be put in place on regulatory and supervisory regimes and the parties will start assessing these as soon as possible so that they are in place by the end of June 2020, i.e. before the end of the transition period.

Rail – The UK and EU will enter into bilateral agreements to keep cross-border rail services running between Belfast and Dublin and through the Channel Tunnel from the UK into the EU.

Aviation – The intention is to keep passenger and cargo air connectivity in place through a Comprehensive Air Transport Agreement and cooperation between the UK’s Civil Aviation Authority and the EASA, on safety, security and air traffic management.

Maritime – Similarly, the parties want to keep maritime transport on the move with arrangements on international maritime services and cooperation between the UK Maritime and Coastguard Agency and the European Maritime Safety Agency.

People - Free movement of people would end. However this would not prevent mobility schemes being put in place with full reciprocity on a non-discriminatory basis, to allow visa-free short term visits, as well as entry and stay for study, research, training and youth exchange and the continuation of the Common Travel Area under a new agreement between the UK and Ireland.

Fisheries – On fisheries the plan would be for the UK and EU to ratify new fisheries agreements by 1 July 2020 – i.e. before the end of the transitional period. This is likely to get some media attention in the next few months!

Other areas covered by the Declaration all seem to have their basis in cooperation, sharing of some information, equivalence and respect, albeit that this would be done under separate bilateral arrangements between the UK and the EU which have yet to be discussed and finalised. These cover: e.g. anti-money laundering and counter-terrorism, nuclear energy, electricity and gas and carbon pricing data exchange, judicial cooperation in criminal matters, space, cyberspace and illegal migration. Recognition and respect for the involvement of the UK and the EU in global and international affairs and cooperation is clear in the Declaration, with the parties intending to continue involvement albeit possibly under a different banner but with a common objective.

Jean Claude Juncker announced that meetings and negotiations on this future relationship are to start on 3 November 2019. This is just three days after ‘exit day’, if indeed ‘exit day’ takes place on 31 October 2019, which will depend on whether the Withdrawal Agreement (originally published in November 2018, and now in October 2019 published with a new protocol) proves to be acceptable to the EU Parliament and the UK Parliament, and is then signed and ratified by the UK and the EU.

Will they or won't they? - the waiting game continues... 


Lyndon B Johnson famously said that the first rule of politics was that its "practitioners need to be able to count".

So it is for Boris Johnson as he frantically attempts to get the Democratic Unionist Party (DUP) onside so as to get a Brexit deal with the EU over the line. And, according to the BBC, the signs are that he has offered to make a massive concession to the EU by agreeing to some form of customs check WITHIN the United Kingdom – i.e. at ports along the Irish Sea between Great Britain and Northern Ireland. Of course, his self-imposed deadline of “31st October – do or die" is being ruthlessly exploited by the EU, in the knowledge that the Benn Act means that – without a deal being in the bag by Saturday – Brexit will be further delayed by up to three months and Boris's pledge will be in tatters.

As Theresa May found to her cost, agreeing a deal with the EU is the (relatively) easy part – trying to sell it to the Commons while holding a paper-thin majority is a lot more difficult – particularly if that wafer-thin majority depends for its existence on a “Confidence and Supply Agreement" signed with the DUP. The fact that Boris Johnson no longer even has a parliamentary majority - having withdrawn the whip from 21 Conservative MPs opposed to a no-deal Brexit - makes his task all the harder. Even so, his main focus at the moment is the DUP, as if he is able to secure their backing, then this is likely to unlock the votes of the so-called “Spartans" on the right of his party. And if he manages to secure a Brexit deal with the EU, then this is likely to bring onside the 21 MPs he expelled last month, as well as a small number of Labour MPs in leave-voting constituencies who might be prepared to defy the party whip.

So the key to getting a deal through Parliament is getting the DUP to sign up to it.

Arlene Foster, the leader of the DUP, has been in and out of Downing Street all week, as Boris attempts to woo her party into signing up to the deal he's provisionally agreed with the EU. But anyone who have ever negotiated with the DUP knows that they are well used to playing political hardball. And so it has been for a very long time. Way back in 1922, not long after the end of World War I, Winston Churchill (Boris Johnson's political hero) mused: “The whole map of Europe has been changed … but as the deluge subsides and the waters fall short we see the dreary steeples of Fermanagh and Tyrone emerging once again." (Arlene Foster is, incidentally, the Member of the Northern Ireland Assembly for Fermanagh and South Tyrone.)

So: which way will the DUP go? Despite the intense political pressure coming from Downing Street, what will be weighing heavily on its leader's mind are the implications for the DUP – and for the future existence of Northern Ireland as part of the United Kingdom – if she agrees to support a customs barrier down the Irish Sea.

This is going to be the most important 24 hours in Arlene Foster's life.

A deal or not a deal? – that is the... has been added


Yesterday's meeting between Boris Johnson and his Irish counterpart, Leo Varadkar - described by both as "very positive and very promising" - may end up being seen as the turning point in the tortuous process of achieving a Brexit deal. One suggestion is that Mr Johnson has proposed the concept of a “customs partnership" – a proposal previously floated by Theresa May – whereby Northern Ireland effectively remains in the EU customs union, but is still included in UK trade deals. However, any expectation of a deal being one which Mr Johnson can get through the House of Commons must take the views of the Democratic Unionist Party into account, which today issuing a thinly-veiled threat that “the DUP is very relevant in the Parliamentary arithmetic and regardless of the ups and downs of the Brexit discussions that has not changed."

Following a meeting in Brussels earlier today between Brexit Secretary Steve Barclay and EU chief negotiator Michel Barnier, described by both sides as "constructive", EU countries have now agreed to "intensify" Brexit talks with the UK over the next few days. So is there now a genuine prospect of a deal being struck? The money markets certainly think so, with sterling surging to a three-month high today, off the back of the announcement. But with all the twists and turns so far in the long-running Brexit saga, there is absolutely no guarantee at this stage that a deal can be considered to be “in the bag".

Meanwhile, according to the BBC, representatives from the aerospace, automotive, chemicals, food and drink and pharmaceutical sectors have written a joint letter to the government to express their concern at the government's plans for post-Brexit trading arrangements. The letter outlines their growing fears that the government's Brexit negotiators have dropped existing commitments to maintain regulatory alignment in the relevant sectors, with a key concern being that the sectors may no longer be entitled to participate in specific EU regulatory institutions after any Brexit deal.

Brexit – the gloves come off (again)


As anticipated, the increasing likelihood of no Brexit deal being agreed between the UK and the EU by 19th October has brought forth a volley of responses from the various parties involved, in an attempt to at least win the “blame game". Labour's Sir Keir Starmer has said that Boris Johnson's Brexit proposals "were designed to fail", accusing the PM of "collapsing the talks and engaging in a reckless blame game". The Democratic Unionist Party leader, Arlene Foster, has said it shows that the EU is "not interested" in a negotiated outcome, and that "The prime minister's proposals have flushed out Dublin's real intentions to trap Northern Ireland in the EU customs union forever." Meanwhile, Donald Tusk has tweeted: “Boris Johnson, what's at stake is not winning some stupid blame game. At stake is the future of Europe and the UK as well as the security and interests of our people. You don't want a deal, you don't want an extension, you don't want to revoke, quo vadis?

Also, an anonymous briefing from Downing Street (widely believed to come from the desk of Dominic Cummings) which was reported in The Spectator gives an indication of government thinking in terms of “frustrating” the grant of an extension. The briefing states: “The [Benn] Act imposes narrow duties. Our legal advice is clear that we can do all sorts of things to scupper delay which for obvious reasons we aren't going into details about. Different lawyers see the “frustration principle" very differently especially on a case like this where there is no precedent for primary legislation directing how the PM conducts international discussions.". It continues with an ominous warning: “Any delay will in effect be negotiated between you [the EU], Parliament, and the courts — we will wash our hands of it, we won't engage in further talks, we obviously won't give any undertakings about cooperative behaviour, everything to do with 'duty of sincere cooperation' will be in the toilet, we will focus on winning the election on a manifesto of immediately revoking the entire EU legal order without further talks, and then we will leave." 

Strong stuff indeed …

Brexit - deal on life support while conspiracy theories abound...


Although not completely “dead in the water” the mood-music on whether the EU considers that last week’s offer from No 10 on alternative arrangements for Northern Ireland might form the basis of a Brexit agreement is looking decidedly unpromising. Boris Johnson has been trying to pick off individual European leaders to create divisions within the EU27’s ranks (which have, at least until now, been rock-steady – but see further below): his call to President Macron yesterday was rebuffed with the comment that “the negotiations should continue swiftly with Michel Barnier's team in coming days, in order to evaluate at the end of the week whether a deal is possible that respects European Union principles”. Given that the European Summit meeting is taking place next week, such stately progress by the EU in deciding whether it even considers the deal as being one worthy of entering into detailed negotiation on (the process referred to as “going into the tunnel”) is a sign that the EU may well have taken the decision privately that – absent some major concessions from London this week – it does not consider the proposals can form the basis of an agreement.

So what next?

There have been all sorts of rumours swirling around Westminster in the past few days about what the government might do to avoid a delay to the Brexit departure date. The Daily Express reports “a senior figure” claiming that, even if he were to lose a vote of no-confidence, Mr Johnson would effectively “squat” in No. 10 until the Queen dissolved Parliament and a general election was called, on the basis that the Fixed-term Parliaments Act 2011 does not set out a departure timetable in such circumstances. There has also been a “conspiracy theory” doing the rounds (reported by both Politics Home and the Express) that the government has done a secret deal with Hungary for Hungary to veto any request submitted by the UK to the EU, required under the terms of the so-called “Benn Act”, to extend the Brexit deadline until the end of January next year. Incidentally, earlier today, the Outer House of the Court of Session in Scotland, in a case brought by Joanna Cherry MP QC (and others) seeking the imposition of an order on the UK government to require it to comply with the terms of the Benn Act, declined to make the order on the basis that the Prime Minister and the government had given “unequivocal assurances” that they would “comply fully” with the Act and not seek to “frustrate its purpose”. An urgent appeal on the decision is being sought before the Inner House of the Court of Session.

The million-dollar question: which way will the EU go?


The jury is still out. Time is (very) tight. The European Commission has to decide very soon – some say within the next few hours - whether it considers that there is enough in the UK’s new Brexit offer to enter detailed negotiations or not. It’s not surprising that it’s taking a few days to reach an agreed position, given the number of stakeholders involved – one of the most (if not THE most) important of which is the Irish government. Obviously none of the stakeholders wants to be seen to be rejecting the offer out of hand, so as not to come off as the culprit in the inevitable blame game which would follow. The situation is made even more difficult by the loud noises coming from the sidelines, such as the Democratic Unionist Party (DUP) stating that the Irish Taoiseach (Prime Minister) Leo Varadkar was “destined to go down in history as the Taoiseach who restored a hard border between Northern Ireland and the Republic of Ireland” if he said no to the proposed deal.

So which way will the EU jump? It’s all so finely balanced that it’s still genuinely impossible to call.

On the plus side (i.e. in favour of a deal):

  • The fact that the current deal would probably, unlike Theresa May’s deal, actually get through the House of Commons
  • This morning’s comment by the Northern Ireland Secretary of State, Julian Smith, that it could be “helpful” to revisit the problematic veto which the DUP would have every four years on whether to continue with EU regulatory alignment on goods (which it would be entitled to do via the “petition of concern” process under the Stormont Assembly’s constitution) - which also hints that further concessions to the current offer might also be forthcoming from the UK side

On the minus side (i.e. in favour of the deal being rejected):

  • The very serious concerns expressed by a wide range of businesses in Northern Ireland on the effect which a customs border would have on their livelihoods and those of their employees
  • Concerns around the technical, legal and enforcement issues which the proposed customs arrangements would throw up
  • The concerns expressed by both politicians and commentators on the impact that the existence of some form of customs “checkpoints” – even if these were located away from the border area – would have on the ability for the people of Northern Ireland to continue to embrace a “dual identity” of being both British and Irish, as provided for under the Belfast (Good Friday) Agreement – and what this might mean for the peace and stability in Northern Ireland which came about following the signing of the Good Friday Agreement in 1998
  • The “eleventh hour” nature of the proposals, and the fact that it reneges on the agreement signed in December 2017 between the UK and the EU to have no border infrastructure between Northern Ireland and the Republic of Ireland

Meanwhile, in Edinburgh, Boris Johnson’s mantra of “we are leaving the EU on 31st October” has been dealt something of a blow in the Scottish courts. Faced with a court case brought by Joanna Cherry MP QC and others as to whether Mr Johnson could be fined or possibly even imprisoned for failing to comply with the terms of the Benn Act (which requires a 3-month Brexit extension to be sought from the EU if a deal is not agreed by 19th October) his lawyers have submitted papers to the Scottish Court of Session confirming that Mr Johnson WILL comply with the terms of the Benn Act. A senior Downing Street source subsequently informed the BBC that there was no inconsistency between these two positions, cryptically stating: “The government will comply with the Benn Act, which only imposes a very specific narrow duty concerning Parliament's letter requesting a delay … and which can be interpreted in different ways. But the government is not prevented by the Act from doing other things that cause no delay, including other communications, private and public. [emphasis added] People will have to wait to see how this is reconciled. The government is making its true position on delay known privately in Europe and this will become public soon."

Negotiating a Brexit deal: Boris' last throw of the dice?


Earlier this afternoon, in his keynote speech at the Conservative Party conference, Boris Johnson unveiled his long-awaited plans for how to solve the Brexit conundrum surrounding the Northern Irish border with the Irish Republic. Under these newly-announced plans, Northern Ireland would effectively stay in the European single market for goods through the creation of an "all-island regulatory zone" (i.e. EU regulatory standards would continue to apply to Northern Ireland) – but subject to the Northern Ireland Assembly voting to enter into such arrangements and re-confirming its approval every four years.

However, in a much more controversial move, the Prime Minister has stepped back from the proposed customs arrangements set out in the Withdrawal Agreement negotiated by Theresa May, including the “backstop" arrangements which had caused such a furore with those on the right of his party. Instead, he is now proposing that Northern Ireland leaves the EU customs union along with the rest of the UK – which would necessitate new customs checks (i.e. in order to ensure the payment of appropriate import/export tariffs) between Northern Ireland and the Irish Republic.

His proposals suggest that the vast majority of such checks could be carried out electronically, but do envisage a small number of “physical checks [which] … could then take place at traders' premises or other designated locations which could be located anywhere in Ireland or Northern Ireland". The proposals further state: “Goods … would be under customs supervision by one or other customs authority from the point at which they are declared for export until they are cleared by customs in the territory of import for free circulation …". 

In other words, to avoid having checks at the frontier itself, Mr Johnson is effectively proposing the creation of a “customs zone" of unspecified size straddling the border - in effect turning a one-dimensional problem (i.e. policing a line) into a two-dimensional one (monitoring an area).

Meanwhile, back in the Commons, where Dominic Raab was deputising for Boris Johnson at PMQs,  Ken Clarke raised the question as to why such a major statement of Brexit policy had been delivered to the Conservative Party conference rather than to Parliament, adding that he hopeda the new policy was not a mere ploy to blame the EU for a failure of negotiations. 

Is this deal likely to be a runner in Brussels? - according to the BBC: “We've heard the mood music: not good at all. I think it's considerably less than 50/50 in terms of the chance of getting a deal done this month." Certainly the Irish government is most unhappy with the proposals, and has pointed out that it completely contravenes the terms of the UK/EU Joint Report, agreed in December 2017, in which the UK agreed that there would be no infrastructure and no related checks or controls on the border between Northern Ireland and the Republic.

The Brexit endgame: does Boris actually WANT to do a deal?


Last night John Major delivered a speech to the Centre for European Reform in which he warned that Boris Johnson might try to bypass the “Benn Act" (which sets out a mechanism to avoid a no-deal Brexit on 31st October, by setting a deadline of 19th October for MPs to have approved the terms of a Withdrawal Agreement or, if this is not forthcoming, to require the Prime Minister to request from the EU a 3-month extension to the Brexit deadline), by passing an “Order of Council" to suspend the operation of the Benn Act until after 31st October. Constitutional experts have, however, since dismissed these concerns, on the grounds that using the royal prerogative in this way would flout the 1688 Bill of Rights, as well as being contrary to the House of Lords' decision in the Padfield –v- Ministry of Agriculture case of 1968.

In fact, the real danger of a no-deal outcome on 31st October emerges – somewhat counter-intuitively – in the situation where Boris Johnson actually manages to get sign-off from MPs to the terms of a Withdrawal Agreement, on Saturday 19th October (yes: Parliament would need to sit on a Saturday) through the mechanism of a “meaningful vote".* The deal they would be agreeing would have been hammered out with the EU27 at the EU summit which takes place in Brussels on 17-18 October. The passing of a “meaningful vote" would mean that Boris Johnson would not be required, under the term of the Benn Act, to request a Brexit extension. However, this would leave VERY little parliamentary time for the supporting Withdrawal Agreement Bill to pass through the various Parliamentary stages by 31st October in order to become an Act, thereby providing the legislative basis on which the UK could leave the UK at 11pm on 31st October with a deal. Were it to prove impossible to obtain parliamentary signoff to the Withdrawal Agreement Bill by 31st October, and the UK were therefore to leave the EU on that date without a deal, such an outcome would still be “in compliance with" the Benn Act. This possible outcome is explained in more detail in this very interesting blog post from the Institute for Government, which points out that “ … Pro-no deal MPs could try and 'game' the Benn Act by voting for the meaningful vote – which would remove the requirement for Johnson to ask for an extension – but against the Withdrawal Agreement Bill. This would prevent the government from ratifying a deal and is a strategy which could lead to no deal on 31 October."

Indeed, it has even been suggested by one legal commentator that this could be part of a secret government strategy to leave without a deal on 31st October, with a general election taking place almost immediately afterwards, before the impact of a no-deal exit had really “hit home" to the electorate, while also having “neutralised" the effect of The Brexit Party in terms of the pro-Brexit vote. Certainly one to watch …

* The requirement for a “meaningful vote" is set out in Section 13 of the European Union (Withdrawal) Act 2018 (2018 Act). This provision gives Parliament a much stronger role in the ratification of the Withdrawal Agreement than under normal parliamentary procedure. It was introduced as an amendment to the 2018 Act by the pro-EU then-Conservative MP, and former Attorney General, Dominic Grieve, and resulted in the government agreeing to change its original proposed procedure to enable stronger parliamentary scrutiny of the Brexit deal. 

Supreme Court judgment - can it get any worse for Boris?


An utterly devastating outcome for Boris Johnson in the Supreme Court: in a unanimous decision by all eleven judges, the Supreme Court has held that the prorogation of Parliament is justiciable, that (irrespective of the motivation of the PM in doing so) it was unlawful, because it prevented Parliament from sitting for five of the eight weeks in the lead up to 31st October, and that the effect of the “Order in Counsel" which effected the prorogation was null and void – i.e. that the putative prorogation never actually took place. The Supreme Court has said that it is for the Speaker of the House of Commons, and the Lord Speaker to decide when Parliament should sit again – and the expectation is that this will take place as soon as possible – possibly even tomorrow.

It is impossible to overstate the significance of this decision – and the fact that it was unanimous is also extraordinary. It effectively leaves “no way out" for Boris Johnson in terms of the veiled threat to prorogue Parliament again if today's decision were to go against him, as a court case would immediately be brought and there is no “wriggle room" in terms of applying the Supreme Court judgment.

The Supreme Court has published its full judgment on its website. The full text of Lady Hale's 4-page summary is available here. The full reaction to the judgment is available on the BBC's live link.

Boris – the Good, the Bad and the really rather funny …


The good ... 

The BBC reports today that confidential documents which "reflect the ideas the UK has put forward" on Brexit have been passed by the UK government to the European Commission. Described as “non-papers" because they are not the government's formal position, these technical papers have gone to the European Commission's Taskforce 50: it is believed that formal ideas for how to resolve the backstop are to come later. Although negotiations appear to be taking place at glacial speed, particularly given the fact that the 31st October deadline is only 41 days away, it was also announced today that there are plans for Boris Johnson and the Irish Taoiseach, Leo Varadkar, to meet on the fringes of a special UN Summit on Climate Action in New York, which begins next Monday.

The bad …

Today say the third and final day of the hearing in the Supreme Court on the lawfulness or otherwise of the prorogation of Parliament. As on Tuesday and Wednesday, there was much criticism from the various parties making submissions that there had been no witness statement from the government setting out the true reasons for prorogation. For example, counsel for Sir John Major, Lord Garnier, said that the ex-prime minister did not "believe the documents given to the court provide the true reason for prorogation" and that "it would be justifiable for the court to infer his [Johnson’s] true intentions". Lady Hale, the President of the Supreme Court, has said the judgement will be delivered early next week.

And the really rather funny…

Finally, you might enjoy this rather amusing comment from an online commentator in response to an FT article which described Boris' meeting earlier this week with Mr Juncker in Luxembourg. The relevant part of the FT article reads as follows: 

“EU officials described a lunch in Luxembourg on Monday between Mr Johnson, Michel Barnier, and Mr Juncker as the moment the “penny dropped" for the prime minister on the complexities involved in replacing the Irish backstop. Mr Johnson was told by his counterparts that the UK's proposals on allowing Northern Ireland to stick to common EU rules on food and livestock was not a sufficient replacement for the Irish backstop as it would still require customs checks on other types of goods. “It was clear that Boris was on a learning curve," said an EU official. Another described Mr Johnson as “slumping" into his seat over the course of lunch as the reality of the tight negotiating schedule dawned."

And the comment reads as follows:  

I read the description of the “penny dropping on the complexities of the Irish backstop“ at the Luxembourg lunch with some relief. 

Boris is now in familiar territory - the essay crisis - and a good outcome is virtually guaranteed. 

The Juncker meeting was clearly Stage 1 (1 am on the day of the deadline: Read essay question for the first time; mild panic) 

This will be followed by Stage 2 (Discover the two page reading list but library is now closed; more panic).

Then Stage 3: Pot plant (best not to elaborate here) 

But do not fear: before breakfast (ok, a late breakfast) there will be a brilliantly argued text. 

Some doubts remain, of course. Will those Europeans understand those fiendishly clever Oscar Wilde quotes? But wasn't Wilde Irish? All sorted then - Leo V. will get it. Brexit deal is in the bag!

Boris – the Good, the Bad and the Ugly…


The Good …

Boris Johnson's thinking about a possible Brexit deal with the EU is now becoming a little clearer. According to the FT, Whitehall officials are looking at a plan to tie Northern Ireland into an all-Ireland economic relationship, which would significantly reduce the need for a hard border between Northern Ireland and the Irish Republic. At the end of the day, whether Mr Johnson manages to get a deal through Parliament to allow the UK to leave the EU on 31 October will boil down to the number of MPs prepared to support the proposed deal, which would need to include a number of Labour MPs in "Leave-voting" constituencies who might be persuaded to ignore the Labour whip. According to Labour's Stephen Kinnock MP, the Withdrawal Agreement Bill remains a strong basis for a Brexit deal. The increased possibility of a deal, provided the DUP could be brought onside, is also the subject of the article Why a Brexit deal would make it through Parliament by James Forsyth in today's Spectator (free to access – just fill in a user name and password).

The Bad …

Counsel for the government, Sir James Eadie QC, had something of a bumpy ride in today's second day of the Supreme Court hearing on the prorogation of Parliament, in which he was arguing that the decision to suspend Parliament was not something which a court of law could rule on.

Harking back to the point made yesterday by Lord Pannick QC (Council for Gina Miller) in relation to the lack of witness statements from the government side, Supreme Court judge Lord Wilson said, when questioning Sir James, that it was 'odd' that there are no signed witness statements accompanying the documents which the government has submitted to make its case, and in particular, that there was no witness statement from the prime minister. "No one has come forward from your side to say this is true. We're just given the documents... floating around" he said, adding: "Isn't it odd that nobody has signed a witness statement to say, this is true, these are the true reasons for what was done?". Sir James replies: "You have the witness statement you have."

In a further exchange, Lord Kerr then asked if the five week prorogation gave the government a political advantage. Sir James said that it did, but that it was not unlawful.

And the Ugly …

The possibility that Mr Johnson might attempt to bypass the European Union (Withdrawal (No 2) Act 2019 (the so-called "Benn Act", because it began life as a private member's bill introduced by Hilary Benn MP) which was enacted last week in order to avoid a no-deal Brexit, has been raised by Jolyon Maugham QC of the Good Law Project, who is also one of the parties who brought the case in Scotland before the Inner Court of Session which decided last week that the prorogation of Parliament was unlawful. As explained in today's FT, there is a concern that, if a withdrawal agreement was approved by the Commons on, or prior to, October 19, the obligation in the Benn Act for the prime minister to request an extension would fall away. Mr Maugham has pointed out that further preconditions would need to be met before the withdrawal agreement could be ratified and no-deal avoided. In particular, a separate act implementing the withdrawal agreement would need to be approved by parliament by October 31.

Opposition MPs fear a scenario in which the withdrawal agreement is passed on or before October 19 but the subsequent act — a complex piece of legislation — gets blocked in the 

Commons, leading to a no-deal exit. Alternatively, Mr Johnson could persuade his MPs to pass the withdrawal agreement before October 19 but then prorogue parliament for a second time, ensuring the deal could not become law before October 31. Again, a no-deal Brexit would result. Mr Maugham has said that the best way to get around these risks would be for Labour to make clear that it will not pass the withdrawal agreement before the extension has been agreed. This would guarantee an extension becomes obligatory, whether it was needed or not.

Mr Maugham has also issued proceedings in Scotland following the lack of response to a letter sent to the prime minister requesting him to give a formal undertaking to the court that he would comply with obligation in the Benn Act. The proceedings have been brought in Scotland due to the power the Inner House has "nobile officium", which would allow it to sign the letter mandated by the Benn Act in the event that the prime minister refused to do so.

What a day to be a constitutional lawyer…


As the BBC's legal correspondent Clive Coleman said earlier today, the three-day hearing which began this morning in the Supreme Court in front of all eleven Supreme Court judges is "arguably the most dramatic constitutional law case since the Bill of Rights in 1689 established our current system of parliamentary sovereignty".

The case is, in fact, two joined cases (one an appeal by Gina Miller against a ruling by the High Court in London that the decision of the Prime Minister to advise the Queen to prorogue Parliament was not justiciable in the courts; the other an appeal against a decision by the Inner Court of Session in Scotland that that decision WAS justiciable, and that it had been done for an improper purpose, viz. to reduce Parliamentary scrutiny at a particularly crucial time for the UK). Further details of the precise issues which the Supreme Court had to consider are set out in this very good summary from the LSE, and this Institute for Government "Explainer" entitled "Court challenges to prorogation".

As well as being a joined English and Scottish case, Raymond McCord (who is also a plaintiff in three related judicial review cases before the Northern Ireland High Court, which held last week that they were not justiciable as they were political matters - decisions which are currently being appealed to the Court of Appeal in Belfast) was yesterday given permission to make a parallel submission before the Supreme Court as part of the present case.

Today's case (the BBC has a blow-by-blow account of the day's developments) began with a submission from Lord Pannick QC on behalf of Gina Miller who argued that:

  • The issue of whether prerogative powers are used for a valid purpose is a matter for the courts
  • The exceptional length of the prorogation is evidence that the Prime Minister wanted to avoid parliamentary scrutiny for political reasons
  • The Prime Minister declined to produce a witness statement explaining why he had advised the Queen to prorogue Parliament – which begs the question whether the ostensible reasons given for having done so were the true reasons (bearing in mind that he would have had to swear an oath that the contents of his witness statement were true)

However, Lord Keen, representing the government, subsequently argued there were examples in history of Parliament being prorogued for political reasons and that governments were entitled to do this. The court resumes again tomorrow.

Finally, a little light relief (or a salutary tale…) highlighting the importance of correct pagination on court bundles – spare a thought for the junior solicitor or barrister who will have been in hot water for causing this little hiccup

The perils of prorogation ...


Yesterday's decision by the Court of Session in Scotland to declare the prorogation of Parliament unlawful was totally unexpected and yet another extraordinary development in the twists and turns of the Brexit saga, as well as meaning that yet another chapter of the constitutional law textbooks will need to be rewritten.

The three-judge court found unanimously that Mr Johnson was motivated by the "improper purpose of stymieing Parliament", and had effectively misled the Queen in advising her to suspend Parliament, concluding: "The Court will accordingly make an Order declaring that the prime minister's advice to HM the Queen and the prorogation which followed thereon was unlawful and is thus null and of no effect." The full decision is due to be published tomorrow. The government has already announced that it will appeal the decision to the Supreme Court.

The fact that the court reached a completely different conclusion to that reached by the High Court in London in response to Gina Miller's application for a judicial review of the prorogation (which found last week that the issue was "not justiciable") means that the stage is now set for a showdown in the Supreme Court. Yesterday the High Court set out its decision in a 24-page judgment, which concluded: "In our view, the decision of the prime minister to advise Her Majesty the Queen to prorogue parliament is not justiciable in Her Majesty's courts."

The court also stated: "The refusal of the courts to review political questions is well established … The prime minister's decision that parliament should be prorogued at the time and for the duration chosen and the advice given to Her Majesty to do so in the present case were political. They were inherently political in nature and there are no legal standards against which to judge their legitimacy." Gina Miller has been given permission to appeal her case to the Supreme Court, and the appeal is expected to be heard next Tuesday (17 September).

Meanwhile, later yesterday, as a result of having lost (by 311 votes to 302) a crunch vote in the House of Commons earlier this week, the government issued its "Reasonable worst case planning assumptions" for a no-deal Brexit, known as "Operation Yellowhammer". This indicates that a no-deal Brexit could lead to a decrease in certain types of fresh food and "shorter supply" of key ingredients; price rises for food and fuel; disruption lasting up to six months potentially affecting medicines and medical supplies; protests and counter-protests across the UK, and lorries waiting for more than two days to cross the English Channel. Shadow Brexit secretary Sir Keir Starmer has said that the document confirms there are severe risks if the UK leaves the EU without a deal, and that recalling Parliament would allow MPs "the opportunity to scrutinise these documents and take all steps necessary to stop no-deal".

The vote in the House of Commons also required the Prime Minister to disclose information surrounding the prorogation of Parliament, in the form of e-mails, texts and WhatsApp messages from Dominic Cummings and eight other advisers in Downing Street. However, Michael Gove yesterday refused to comply with the terms of the vote, on the grounds that it would be "unreasonable and disproportionate" to do so, that it would "contravene the law" and "offend against basic principles of fairness". In particular, Mr Gove stated that: "the motion appears to direct the Government to carry out searches that could only be discharged by breaching the legal framework set by Parliament itself, whether the Investigatory Powers Act 2016, the Human Rights Act 1998 implementing the European Convention on Human Rights, or the Data Protection Act 2018. Such action would contravene the statutory obligations on the Civil Service under the Constitutional Reform and Governance Act 2010 to observe the rule of law. That cannot be set aside by a resolution of the House of Commons."

Scottish judges rule Boris Johnson's suspension of parliament is unlawful


Scotland's highest civil court has ruled that Boris Johnson’s suspension of the UK Parliament is unlawful. A panel of three judges found in favour of a cross-party group of politicians who were challenging Mr. Johnson's move, declaring that "The Court will accordingly make an Order declaring that the prime minister's advice to HM the Queen and the prorogation which followed thereon was unlawful and is thus null and of no effect."

Further details can be found here.

Yet another bad day for Boris...


It really does look like Boris Johnson's decision to prorogue parliament has backfired spectacularly, given that it has had the effect of uniting the anti-no-dealers and the remainers, as a result of which Mr. Johnson today suffered the humiliation of yet another defeat in the House of Commons.*

Around the same time this afternoon as the European Union (Withdrawal) (No. 2) Act 2019 received royal assent (which requires the Prime Minister to request the European Council for a 3-month Brexit extension, on 19 October, unless the House of Commons decides otherwise) and shortly after John Bercow had announced his retirement as Speaker at the end of the month (jumping before he was pushed), Dominic Grieve successfully put forward a motion for a "humble address" which passed by a majority of 311 votes to 302. The purpose of the humble address was to require the government to publish, by 11am this Wednesday:

"all correspondence and other communications (whether formal or informal, in both written and electronic form, including but not limited to messaging services including WhatsApp, Telegram, Signal, Facebook messenger, private email accounts both encrypted and unencrypted, text messaging and iMessage and the use of both official and personal mobile phones) to, from or within the present administration, since 23 July 2019 relating to the prorogation of Parliament sent or received by one or more of the following individuals: Hugh Bennett, Simon Burton, Dominic Cummings, Nikki da Costa, Tom Irven, Sir Roy Stone, Christopher James, Lee Cain or Beatrice Timpson..."

If the suspicions of Dominic Grieve and others are correct, this material could produce useful ammunition for Gina Miller's appeal to the Supreme Court, due to be heard on 17 September, for a judicial review of the government's decision to prorogue Parliament, on the basis that it was an unlawful abuse of power. There is also an appeal in the offing in the Scottish courts on whether the decision to prorogue Parliament is justiciable or not. In Belfast, a judicial review by a campaigner arguing that no deal could jeopardise the Northern Ireland peace process is scheduled for 16 September.

Earlier today, Boris Johnson flew to Dublin for talks with the Irish Taoiseach (PM) Leo Varadkar, with Brexit right at the top of the agenda. There were no immediate signs of a possible breakthrough in relation to the contentious issue of the Brexit backstop, with Mr Varadkar warning Mr. Johnson (using an appropriate classical allusion) that he faced a "Herculean" task in attempting to negotiating free trade agreements with the EU and US and securing their ratification in less than three years , but adding "We want to be your friend and ally, your Athena, in doing so."

So what now for Boris? Parliament will be prorogued from sometime later tonight (or in the early hours of tomorrow), returning on 14 October. Although badly battered by the events of the past week, the fact that Parliament will not be sitting will enable Mr. Johnson to focus exclusively on coming up with a plan which he can get through Parliament. As I mentioned in last Friday's blogpost, Stephen Kinnock and a number of his Labour colleagues (there are 17 MPs in the "Labour MPs for a deal" group) could potentially side with the government on a vote for an amended version of Theresa May's Withdrawal Agreement Bill. In addition, the BBC reports this evening that:

"the prime minister is interested in a so-called "Canada Plus" free trade agreement with the EU. Theresa May rejected this option because the EU would only ever offer this to Great Britain (England, Scotland and Wales) and not to the United Kingdom as a whole [i.e. to Northern Ireland also]. This is because the EU has insisted that Northern Ireland would have to remain closely aligned to the EU to avoid a hard border." ... "Tories familiar with Boris Johnson's thinking say he is now willing to contemplate a version of the so-called "Northern Ireland only backstop". Under this plan Northern Ireland would be closely bound to the EU on areas where there are already elements of an all-Ireland economy - agriculture and electricity. But Great Britain would be free to chart its own course. That would free GB to have a free trade agreement with the EU but would create a border down the Irish Sea."

So, to conclude, Mr Johnson has not quite "run out of road" in terms of achieving some form of Brexit by the end of October. The European Council meeting in Brussels on 17-18 October will be the real crunch point, if some form of last-minute deal is to be agreed. One interesting "gloss" on this (and one which could potentially out-manoeuvre the Democratic Unionist Party (DUP) who are opposed to Northern Ireland (NI) having a different regulatory regime to the rest of the UK) is that there has been some online speculation in the past few days, which was voiced by ERG stalwart Andrew Bridgen this evening on BBC Radio 4's PM programme, when he said that the only way he could see a NI-only backstop being acceptable would be if it was put to an NI-only referendum. Given that there is very significant opposition in NI to a no-deal Brexit, (back in 2016, NI voted in favour of Remain by 56% to 44%) this could effectively neutralise the DUP. Definitely one to watch...

* summarised by the BBC's Nick Robinson as: "5 days in Commons + 5 major defeats - 21 Tory MPs = 0 majority + 0 election + 0 plan for Brexit + 5 weeks of Parliament suspended"

Is it all over for Boris?


Despite all the hullabaloo surrounding Boris Johnson's brother, Jo Johnson, having yesterday stepped down as a government minister and an MP, apparently in protest at the removal of the whip from the 21 Conservative MPs who voted in favour of the European Union (Withdrawal Agreement) (No 6) Bill - as well as having lost three votes in the House of Commons over the past few days - there is still a very faint possibility that he might be able to salvage the situation in terms of achieving some form of Brexit on 31 October 2019.

There are two reasons for this:

  1. Mr Johnson announced on Tuesday, to little fanfare, that he is open to an all-Ireland food standards zone as part of a solution to replace the Brexit backstop, which would apply EU rules. In effect, checks would take place in the Irish Sea, or at coastal ports. This proposal is something which is receiving more press attention in Ireland than it is in the UK. Probably unsurprising given that the focus of the British press is now on the likely timing of a general election. The first of these two articles includes the following text:

    "One thing that is clear is that, whoever is in power, a formula will have to be found to deal with the backstop impasse, and there is a growing consensus that the current UK-wide backstop cannot survive. Johnson has hinted that he is prepared to look at some version of the original EU proposal of a Northern Ireland-only backstop while the deputy leader of the Democratic Unionist Party Nigel Dodds has said his party is open to discussions with the prime minister on a possible all-Ireland food-standards zone. An acceptable compromise along these lines could get everybody off the hook, and it is something the Government in Dublin will need to give careful consideration if and when it emerges."

    The Irish government - under some pressure domestically - is suspicious but it is listening. Mr Johnson is due to travel to Dublin on Monday for discussions with the Irish Taoiseach (PM) about the proposals. Could this be the solution to the UK-wide backstop issue, which has bedevilled the House of Commons for the past few months?

  2. The second reason is that, during the House of Commons debate on the European Union (Withdrawal) (No 6) Bill on Wednesday, Labour MP Stephen Kinnock put forward an amendment seeking to bring back former prime minister Theresa May's final Brexit offer, the Withdrawal Agreement Bill, which had emerged from cross-party talks earlier this year. (The Withdrawal Agreement Bill was never put before parliament, as Ms May was ousted as leader of the Conservative Party before she was able to put it to a vote.) Mr. Kinnock's amendment was approved in unusual circumstances after no tellers for the "noes" were put forward when it was put to a vote. This resulted in deputy speaker Sir Lindsay Hoyle cancelling the vote on it, and confirming that the amendment had been added to the Bill. What this amendment indicates is that, if there were to be another vote on Mrs. May's deal - say, with a "Northern Ireland only" backstop - there is a certain amount of cross-party support for a compromise "soft Brexit" deal. Indeed, when asked yesterday at a Select Committee meeting whether he would vote in favour of Mrs May's deal were it to come back to the Commons, Michael Gove replied "yes".

However, the counter-argument to this is that the opposition parties, who have now agreed between themselves to either abstain or vote against the government motion to call an early election which has been put down for debate on Monday, are no longer interested in agreeing a Brexit deal which would allow the UK to exit the EU on 31 October - which would allow Mr Johnson to fight an election having got the UK out of the EU by 31 October, as he had promised. They believe that they have now got Boris Johnson "on the ropes" and are gunning for a general election to take place against a background of the electorate knowing that the UK will not be leaving the EU on 31 October – as had been promised by Mr Johnson “do or die”. That said, the European Union (Withdrawal Agreement) (No 6) Bill  - which was, earlier this afternoon, passed by the House of Lords, and is now awaiting royal assent - does include a carve-out from the obligation to seek a three-month Brexit extension if MPs have approved a Brexit deal in another meaningful vote.

On a related point, earlier today, the High Court in London rejected Gina Miller's bid to have the prorogation of Parliament declared unlawful. However, Lord Chief Justice Lord Burnett said she could immediately appeal to the Supreme Court because of the important points of law at stake: the appeal is expected to be heard on 17 September. This outcome is not unexpected, as the High Court was never likely to change the status quo on such a finely-balanced point of law, particularly one of such enormous importance, but instead leave it to the Supreme Court to decide. In fact, given that the prorogation has had the effect of galvanising opposition against Mr Johnson, and has made an October general election less likely, if this was a ploy by No. 10 to increase the likelihood of forcing through a no-deal outcome on 31 October, then it has spectacularly backfired.

So, all eyes will be on how Mr Johnson's meeting with the Irish Taoiseach goes on Monday - if there is no breakthrough on the backstop issue then his chances of pulling off a departure from the EU on 31 October "Deal or no deal, do or die" really will have been scuppered...

Just when he thought it couldn't get any worse ...


... in the past few minutes, Boris Johnson's younger brother, Jo Johnson "torn between family loyalty and the national interest" has announced that he is standing down as an MP …

Pandora's Brexit Box


Last night Boris Johnson was defeated in his first ever House of Commons vote, becoming the first prime minister to do so since the Earl of Rosebery in 1894.

In the next few minutes, the second reading debate on the proposed bill (The European Union (Withdrawal) (No. 6) Bill, the details of which are summarised here) will get underway in the House of Commons, with a first vote on the bill expected at about 5pm, and the second vote (on the bill's third reading) at about 7pm, after which, if approved, it will move immediately to the House of Lords.

It is likely to be a long night in the House of Lords, as over 80 amendments to the bill have been tabled by Conservative peers, and there is therefore a significant risk that they will "filibuster" – i.e. talk and talk until there is no time left to get the bill through.

There is also the possibility that the Government will propose a motion, at about 8.30pm this evening, on holding a general election, followed by a vote.

As I have mentioned previously, under the Fixed-term Parliaments Act 2011, a prime minister cannot call an election at a time of their choosing. Under the Act, they must have the backing of at least two-thirds of MPs – in other words, at least 434 MPs would have to give the green light to an early election. Labour MPs are apparently demanding that the party leadership puts off endorsing a general election until after 31 October, because of the potential to weaken Boris Johnson, forcing him to request a delay to Brexit and so break his key election promise. However, there is some concern among Labour MPs that Jeremy Corbyn will push for an election later this week, at the point at which the bill demanding a delay has (they hope) become law. The Labour position is extremely fluid at the moment – e.g. according to the BBC's assistant political editor, Norman Smith, "If Mr Johnson is still in power and delivered a Queen's Speech on 14 October as planned, Labour would then consider putting forward a motion of no confidence. The Boris Johnson government is now looking so shaky, the name of the game is not just Brexit, but who is in government. [Labour is] looking for a way to get into power.".

As I also mentioned in my post yesterday, an alternative process would be for the government to introduce a very short bill calling for an election on a specific date "notwithstanding the provisions of the Fixed-term Parliaments Act", which would then remove the two-thirds majority requirement, and require a simple majority instead. However, this process would take longer as the bill would need to clear the House of Lords, as well as the House of Commons, and there would be a risk (for the government) that the bill could be amended - allowing pro-remain MPs to make changes, such as forcing a further Brexit extension.

In other news, the judge in the Scottish Court of Session in Edinburgh who was hearing the case brought by a cross-party group of 75 parliamentarians who were arguing that the Prime Minister had exceeded his powers in attempting to prorogue Parliament, ruled this morning that the issue was one for politicians and voters to judge - not the courts. The judgment is now being appealed. It will be interesting to see whether the High Courts in London and Belfast take a different approach in the concurrent cases being brought by Gina Miller/John Major and Raymond McCord respectively. The High Court in London is due to hear her judicial review request tomorrow, and in the NI High Court a judicial review is scheduled for 16 September.

A day is a long time in politics...


I said yesterday that a week was a long time in politics … perhaps I should have said that, at the moment, a DAY is a long time in politics…

Yesterday evening we heard Boris Johnson call on Conservative MPs not to vote in favour of the proposed bill which is likely to be put before parliament later today, against the background of potentially having the party whip withdrawn, and being deselected as Conservative Party candidates in a future election. The purpose of the bill is to defer Brexit by a three month period to allow further meaningful negotiation with the EU to take place. Although likely to "pick off" some of the more junior Tory MPs, the Tory "big beasts" such as Philip Hammond, Ken Clarke and Dominic Grieve are unlikely to be swayed – in fact, on BBC Radio 4's Today programme this morning, Philip Hammond said that he was prepared for "the fight of a lifetime" if there were attempts to de-select him as a Conservative candidate at the next general election.

Despite proclaiming "I don't want an election, you don't want an election" when making his speech, the sub-text of Boris Johnson's announcement was that, if such a bill were to become law, he would not stand by and allow the 31 October Brexit deadline to be missed, but would instead put forward a motion in the House of Commons to call a general election. According to the FT: "Government insiders said that if MPs succeeded in taking control of the Commons order paper, Mr Johnson would, in turn, introduce a motion for a vote on Wednesday to dissolve parliament."  However, a potential "fly in the ointment" is that the Fixed-term Parliaments Act 2011 provides that there needs to be a two-thirds "supermajority" in the House of Commons on a motion to call an unscheduled general election. Given that the Labour Party is, according to polls, some 11% behind the Conservative Party, the question is whether enough Labour Party MPs would support such a motion.

Although Jeremy Corbyn has been calling for a general election for some time, Tony Blair warned Mr Corbyn on Monday that an election before Brexit would be an "elephant trap". In terms of support for a general election from other political parties, Nicola Sturgeon of the SNP has responded "bring it on". Boris Johnson would also want to "neutralise" the Brexit Party, which he could do by campaigning on a "We're leaving on 31 October, come hell or high water" platform - and it's even been suggested, by offering Nigel Farage the position of British ambassador to the US (which would also please Donald Trump).

Another interesting possibility, in terms of making the numbers to pass such a resolution stack up, is that it has been suggested by the political editor of The Sunday Times, that a "one-line Bill" could be put before the House of Commons which would state "Notwithstanding the provisions of the Fixed-term Parliaments Act 2011, a general election shall take place on [x] date." If such a motion were to obtain a simple parliamentary majority, (i.e. by one vote) then the election could go ahead on that date. The date currently being bandied around for when a general election could take place is Monday 14 October, shortly in advance of a pivotal EU Council meeting on 17 October – although it has now emerged that that date is a Jewish holiday so this could cause problems.

If a general election were to take place before the end of October, and if the Tory party was to win an outright majority (still two big "ifs"), then the Conservatives would no longer be dependent on the Democratic Unionist Party (DUP) for support. The "logjam" in passing the Withdrawal Agreement in its current form centres on the so-called Northern Ireland backstop, as the DUP are vehemently opposed to a border of any form down the Irish Sea. However, if he emerges with sufficient MPs to no longer need the support of the DUP, the Prime Minister could defy the DUP and agree to a separate, "soft-Brexit" status for Northern Ireland in relation to the Republic, accepting some form of border arrangement down the Irish Sea, with a de facto border at sea ports. This would eliminate any need for the backstop, and the Withdrawal Agreement could then be redrafted to remove this provision … with Brexit proceeding as Boris Johnson had promised on 31 October – but crucially WITH a deal.

According to the BBC, the likely Commons timetable for later today is as follows:

  • After 17.00: If there is no further statement, an MP is expected to make a three-minute application to the Speaker John Bercow for an emergency debate on Brexit.

    MPs will then be asked for their consent. If some MPs shout "no", 40 MPs in favour of the debate will need to stand up to ensure the debate goes ahead.

  • 18.00-21.00: If approved, the emergency debate can last up to three hours.

  • 21.00-22.00: MPs will vote on whether to take control of Parliament on Wednesday to extend the Brexit deadline to, at least, the end of January 2020. The vote could be as late as 22.00 BST.

It's going to be an interesting few days, to put it mildly….

A week is a long time in politics…


Harold Wilson's oft-quoted remark is particularly apt this week of all weeks.

Parliament returns from its summer recess tomorrow, for a short parliamentary session before it is prorogued early next week. There are so many permutations and combinations of what might happen that it's impossible to say with any certainty how things will look a week from now, but a number of different scenarios are possible:

  1. Emergency debate – the anti-no-deal lobby are very likely to seek an emergency debate under Standing Order 24 which would allow them to take control of the parliamentary timetable and introduce primary legislation to require the Prime Minister to request the EU for a further extension of the Brexit deadline. A decision on whether to allow such an emergency debate to take place is in the gift of the Speaker of the House: given that he has described the prorogation as "a constitutional outrage", the chances are that he will be open to facilitating such a move.

  2. Vote of no confidence – this could bring down the government and result in Jeremy Corbyn being made head of a caretaker administration pending a general election. Still a pretty long shot, given that there are diverse views (to put it mildly) among the anti-no-deal lobby about putting Jeremy Corbyn in Downing Street, albeit temporarily.

  3. The Courts – John Major has now joined forces with Gina Miller to bring an urgent case in the High Court to contest the legality of Boris Johnson's prorogation of Parliament. A similar court case is due to be heard tomorrow before the Scottish courts, and a further one in Northern Ireland later in the week.

  4. Humble address – Dominic Grieve MP, the former Conservative Attorney General, is reportedly considering an appeal to the Queen, by way of a humble address – although this is seen as a long shot, particularly on account of concerns about dragging the Queen into politics.

  5. Government calls pre-emptive General Election – unlikely at this stage, given that Boris Johnson would prefer to go to the country once he's delivered on his promise to leave the EU by 31 October, "do or die".

Further details on these various options are spelt out in this article by Isabel Hardman at the Spectator, who has also produced this really helpful flowchart setting out all the options.

Whatever happens, we can say with certainty that it's going to be a busy week in Westminster – as well as in the English, Scottish and Northern Irish courts…

Brexit: Boris' busy day...


Well, where to start?!

It's been a very busy day in Westminster, and in Edinburgh and at Balmoral…

As anticipated, the response from the opposition parties, as well as from anti-no-deal Conservative MPs, to Boris Johnson's plan to prorogue Parliament has been vociferous, with Jeremy Corbyn saying that he was "appalled at the recklessness of Johnson's government", Nicola Sturgeon saying it was "absolutely outrageous" and that the Prime Minister was "acting like a tin pot dictator" and former Tory Chancellor Philip Hammond calling it "profoundly undemocratic". And this evening there are unconfirmed reports that the leader of the Scottish Conservatives, Ruth Davidson, is on the verge of resigning as party leader.

Meanwhile, at Balmoral, Jacob Rees-Mogg and two other Privy Counsellors took part in a Privy Council meeting with the Queen who formally consented to Parliament being prorogued "no earlier than Monday 9th September and no later than Thursday 12th September 2019 to Monday 14th October 2019", ostensibly to enable the government to prepare for a new session of Parliament. However, this is no normal end-of-parliamentary-session prorogation, despite the protestations from pro-Brexit MPs that this is all it is. Indeed, the fact that the proposed duration of the prorogation is almost five weeks, which is much longer than is normally the case (according to a recent House of Commons Library research briefing: "The typical recent duration of a UK Parliament's prorogation has been very short. Since the 1980s prorogation has rarely lasted longer than two weeks (and, between sessions during a Parliament, has typically lasted less than a week)") is a clear indication of this. In addition, the fact that it is taking place during a political crisis and that the Prime Minister has only been in office for one day so far while Parliament has been sitting (and, therefore, not subject to the usual level of parliamentary scrutiny for his actions), are two other aspects of the extraordinary nature of this parliamentary prorogation.

In Edinburgh, meanwhile, the 70+ cross-party MPs (supported by Jolyon Maugham QC and the Good Law Project) who are in the process of bringing a case in the Scottish courts in an attempt to stop a prorogation, are now attempting to obtain an interim interdict (i.e. injunction) which would prevent parliament being suspended until the case has a full hearing on 6 September. The court is expected to consider their motion either tomorrow or Friday. In addition, it will be interesting to see whether John Major and/or Gina Miller seek to bring judicial review proceedings to test the validity of Boris Johnson's actions. The likely basis of such an action would be that the Prime Minister had misunderstood, and thereby failed to correctly apply, the law relating to the power to prorogue, on the grounds that such powers exist purely for purposes consistent with the healthy functioning of the country's parliamentary democracy, rather than to frustrate the will of Parliament.

Back at Westminster, pressure is now on for the anti-no-dealers to decide on their next steps. They will need support from the Speaker of the House of Commons, John Bercow, if they wish to bring forward legislation to attempt to delay a no-deal Brexit once Parliament returns from its summer recess on 3 September. Given that John Bercow has described Boris Johnson's actions in proroguing Parliament as a "constitutional outrage", the chances are that he will be open to facilitating such a move. However, the opportunities for doing so are very limited as, although Yvette Cooper and Oliver Letwin managed to force through backbench legislation in April this year within 3 days, this was off the back of an amendment which the government had been obliged, under the European Union (Withdrawal) Act 2018, to table. As there are no further requirements for the government to table amendable motions under this Act, backbench attention has now shifted to Standing Order 24 (SO24) which allows backbench applications for debates on "a specific and important matter that should have urgent consideration". However, even if such an application were to succeed, it would not automatically follow that the resulting debate would effect any change in the legal position.

The other option – the so-called "nuclear option" - would be for there to be a vote of no confidence in the government, which could lead to a general election. However, such a path would also be fraught with difficulty, given that those opposed to a no-deal Brexit would not necessarily be prepared to vote for Jeremy Corbyn as an alternative candidate to command the confidence of the House. The Fixed-term Parliaments Act 2011 is, according to the constitutional historian, Vernan Bogdanor*, "a wretchedly-drafted piece of legislation" and, as Robert Peston states in today's Spectator**: "A No. 10 source told me: 'If MPs pass a vote of no confidence next week, then we'll stay in No. 10, we won't recommend any alternative government, we'll dissolve parliament and have an election between 1 and 5 November – and that means no time for legislation'."  They would be able to do so under the Act as, if an alternative government cannot be formed within 14 days of the vote of no confidence, then Section 2(7) of the Act provides that it is in the gift of the Prime Minister to decide when the general election should take place.

At the moment the likely timeframe between now and the end of October is as follows (courtesy of the BBC):

  • 3 September:MPs return to the House of Commons after the summer recess
  • 4 September:Chancellor Sajid Javid is set to make Commons statement on government spending in 2020/21
  • 3/4 September:MPs could begin their attempts to block a no-deal Brexit
  • 10 September:Parliament likely to be prorogued until 14 October
  • 14 September:Liberal Democrat party conference begins in Bournemouth
  • 21 September:Labour party conference begins in Brighton
  • 29 September:Conservative party conference begins in Manchester
  • 13 October:SNP conference begins in Aberdeen
  • 14 October:State Opening of Parliament, including the Queen's Speech - which sets out the government's plans for the parliamentary session
  • 17/18 October:EU summit in Brussels, at which a Brexit deal could be agreed between the UK and the EU
  • 21/22 October:Parliament to hold a series of votes on Queen's Speech; MPs could also be asked to approve a Brexit deal, if one is agreed
  • 31 October:UK due to leave the EU

* On today’s World at 1 programme. You will need to sign on to BBC Sounds and scroll 24 minutes into the programme for this interview

** To register for the Spectator and to access this article for free you just need to fill in your e-mail address and a password

He's only gone and done it....


Breaking news...

In the past few minutes it's been announced from No 10 that Boris Johnson is to ask the Queen to prorogue Parliament from mid-September, in a move which will cause outrage to those MPs opposed to a no-deal Brexit: see https://www.bbc.co.uk/news/uk-politics-49493632 for further details...

Watch this space …

Tusk rebuffs Johnson's request to drop Irish backstop to avoid 'no deal' Brexit


Earlier today, EU Council President Donald Tusk rebuffed a written request from Boris Johnson urging the removal of the Irish backstop* from the Brexit withdrawal agreement. "The backstop is an insurance to avoid a hard border on the island of Ireland unless and until an alternative is found," Tusk said on Twitter, with the European Commission quickly voicing support for his view. Yesterday, Mr Johnson had written to Tusk, branding the backstop "anti-democratic and inconsistent with the sovereignty of the UK", as well as urging the EU to consider agreeing to "flexible and creative" alternative solutions — without explaining in detail what those might be. Rejecting Mr Johnson's proposal, Tusk said that the UK prime minister had failed to suggest any credible alternative to avoid a border emerging.

Just to clarify what precisely is meant by the "Irish backstop" - the draft Withdrawal Agreement provided that there would be a "transition period" after Brexit day, during which time (which would last until, at the latest, December 2022) the UK would still be in the single market and customs union, and would continue to trade with the EU as it does now. The plan had been for the UK government to negotiate its future relationship with the EU, including trade rules, during this transition period. The draft withdrawal agreement provided that the "Irish backstop" would kick in at the end of the transition period if the UK and EU had failed to negotiate a future trade deal which kept the Irish border open as it is today. Under the backstop the whole of the UK would enter a "single customs territory" with the EU, meaning that there would be no tariffs on trade in goods between the UK and the EU and some (though not all) trade restrictions would be removed. However, Northern Ireland alone would remain aligned to some additional EU rules to ensure that the Irish border remained open as it is today. These separate regulations for Northern Ireland would have meant that there would need to be some checks undertaken on goods entering Northern Ireland from the rest of the UK. Incidentally, the UK government had proposed the all-UK backstop as an alternative to the EU's initial suggestion, which would have applied the customs union to Northern Ireland alone.

Brexit - September will be a busy month...


It's going to be a busy September on the Brexit front…

Earlier today, Lord Doherty in the Scottish Court of Session in Edinburgh (the case is being brought in Scotland as the Scottish higher courts sit through the summer, unlike their English counterparts) decided to allow to proceed the case brought by a cross-party group of MPs, backed by the Good Law Project, for a declaration that the Prime Minister cannot lawfully advise the Queen to prorogue Parliament, in order to force through a no-deal Brexit. The full hearing, in the outer house of the Court of Session, is scheduled for Friday, 6 September.

On Monday, 9 September, it is widely expected that anti-"no-deal" MPs will make their first attempt to thwart the prime minister's plan to leave the EU at the end of October with or without a deal. The timing is determined by the legislative amendments to the Northern Ireland Bill which Dominic Grieve MP succeeded in narrowly having passed by the House of Commons last month, requiring ministers to regularly report to Parliament on the situation in Northern Ireland. Under this legislative amendment, the government must make a report to Parliament on Northern Ireland's devolved government on 4 September, and a debate and vote must then be held within five days. This is widely seen as providing an opportunity for further legislation to be passed, with the aim of avoiding a no-deal exit on 31 October.

There is also speculation that the Labour Party will table a motion of no-confidence in the government in early September, as soon as Parliament comes back from its summer recess on 3 September, thereby setting in train the process for a general election - unless another MP can, within 14 days, form an alternative administration capable of demonstrating that it had the confidence of the House. However, even if such a vote of no confidence in Boris Johnson's government were to take place in early September, and this leads to a general election, there is no guarantee that a general election would happen before 31 October, as Section 2(7) of the Fixed-term Parliaments Act 2011 provides that the polling day for the general election will take place on "a day appointed by Her Majesty by proclamation on the recommendation of the Prime Minister". Therefore, the Prime Minister could choose to delay the election until after Brexit day.

The odds on a no-deal Brexit and imminent General Election continue to increase...


The Institute for Government has just published a very interesting paper entitled "Voting on Brexit: Parliament's role before 31 October" in which it sets out its analysis of the various Brexit-related scenarios which are likely to take place in Westminster between now and the end of October. It concluded that MPs looking to make their voices heard over Brexit will have far fewer opportunities to do so this time around than they had in the run-up to the end of March this year, when the former prime minister was trying to pass her withdrawal agreement, and makes the following points in particular:

  • It is very unlikely the UK will be able to leave the EU with a deal on 31 October: even if Boris Johnson were able to renegotiate some part of the current deal, there would be very little time to pass the legislation needed to implement it. If Mr Johnson gets a deal, he will probably need an extension to complete ratification.
  • MPs can express opposition to no deal but that alone will not prevent it: the government could ignore MPs' opposition to no deal. Simply voting against it in principle would not require the government to act, nor would it change the law – both domestic and international. There is very little legislation the government needs to pass before 31 October, and amending or voting it down would only limit the government's powers in the event of no deal, not prevent no deal itself.
  • Backbenchers have very few opportunities to legislate to stop no deal: MPs may want to repeat the process that led to the 'Cooper Act' in March, which forced the government to seek an extension (although it had already requested an extension before the Act came into law). But as the government controls most of the time in the Commons there are limited opportunities for MPs to initiate this process, even if the Speaker helps facilitate such a move. Cancelling the planned conference recess alone will not necessarily create new opportunities.
  • A vote of no confidence would not necessarily stop no deal: the process governing no confidence motions under the Fixed-term Parliaments Act 2011 has not been tested. If passed, it would trigger a 14-day period during which time MPs could try to form a 'government of national unity' (for which see further below). Failing this, there will be a general election – but it is unclear what would happen if Mr Johnson refused to follow constitutional convention to resign if an alternative majority was possible. This could risk dragging the Queen into politics.
  • There is little time to hold a general election before 31 October: if either Boris Johnson – with the intention of securing a mandate for no deal – or the opposition push for a general election, they will need to act almost as soon as Parliament returns from recess. Otherwise this risks an election after 31 October. An election that runs over the Brexit deadline would cause major challenges for civil servants and ministers.
  • A second referendum can only happen with government support: other than a general election, some MPs view another referendum as the best way to break the parliamentary deadlock. But this requires legislation and government spending, both of which will need government support to achieve. There will also not be enough time to hold a referendum before 31 October, so the government would need to ask for an extension to Article 50.

Meanwhile, the Spectator has published an article entitled "We're heading for a 1 November election" (note: there is a very simple registration process to access this article: just fill in your e-mail address and a password and you're in) in which James Forsyth argues that, even if the government were to lose a vote of no confidence, it doesn't believe that its opponents would be able to agree on an alternative prime minister. According to Forsyth: "One confidant of the Prime Minister tells me: 'It is not in Corbyn's interest to back some caretaker PM. It would create a centrist, Remainer party in parliament.'" The article concludes with a quote from a Tory campaign veteran predicting that this autumn will see "an election and a Supreme Court fight over whether we can leave or not".

Brexit - recent legal developments...


Despite the parliamentary summer recess, there has been a flurry of activity over the past few days on Brexit-related developments:

  1. Legal challenge to threat to prorogue parliament
    Last week, a cross-party group of MPs, backed by the Good Law Project, lodged papers with the Court of Session in Scotland to request a declaration that the Prime Minister cannot close down Parliament in the run up to 31 October 2019 in order to force through a No Deal Brexit. They issued a Petition to the Court of Session – which sits through August – for a "declarator" that the Prime Minister cannot lawfully advise the Queen to prorogue Parliament. Their petition, which was formally published this week by the court, claims that proroguing parliament ahead of Brexit would be "both unlawful and unconstitutional" and would have "irreversible legal, constitutional and practical implications for the United Kingdom". It is currently being considered by a judge who will decide whether to allow the case to proceed. The Petitioners include a large number of MPs from the Labour Party, the Liberal Democrats, Plaid Cymru, the SNP, and a number of independent MPs. A full list of the Parliamentarians involved in this case is available here.

    For more on the interaction between the courts and Parliament in relation to Brexit, I would recommend that you view the video of the recent panel discussion entitled "Parliament and the courts" hosted by "The UK in a Changing Europe" (the  non-partisan body funded by the Economic and Social Research Council and based at King's College London, which provides impartial insights and analysis about UK-EU relations) which has an absolutely stellar line-up of speakers including Jonathan Sumption, Dominic Grieve and Stephen Laws.

  2. House of Commons Library briefing paper on the status of retained EU law
    Last week the House of Commons Library published a briefing paper, The status of retained EU law, which looks at what EU law will be retained in UK law after the UK leaves the EU, how EU law will be retained, and the constitutional status of retained EU law. The briefing paper notes that, in repealing the European Communities Act 1972 (ECA 1972) on exit day, the European Union (Withdrawal) Act 2018 (EUWA) removes the domestic constitutional basis for EU law having effect in the UK. However, the EUWA also provides for the retention of most of that law, as it stands on exit day, by "converting" or "transposing" it into a freestanding body of domestic law called retained EU law.

    The briefing paper examines the current status of EU law and the effect of repealing the ECA 1972. Addressing what EU law will be retained, and how it will be retained, the paper looks at the effect of the following EUWA provisions:
    • Section 2, which retains EU-derived domestic legislation
    • Section 3, which retains direct EU legislation
    • Section 4, which retains many of the directly effective rights and other obligations available under section 2(1) of the ECA 1972
    The briefing paper also looks at what is excluded from the definition of retained EU law, the interpretation of retained EU law, and the constitutional status of retained EU law. The paper notes that while previously the principle of supremacy of EU law would have given all EU law priority over any domestic law or legislation, this is not the status afforded to retained EU law.

  3. Institute for Government report on no-deal preparations

    The Institute for Government (the highly-regarded non-party political think tank which won Think Tank of the Year at Prospect's 2019 Think Tank Awards) has published a report entitled "Preparing Brexit: No Deal" which looks at what the Prime Minister needs to do between now and 31 October to prepare for no deal, and what he will have to do after 31 October if the UK has left the EU without a deal. The report argues that preparing for no deal could leave very little space for an ambitious domestic legislative agenda, and points out that a no deal Brexit would not be a clean break but would dominate government for years to come.

Brexit - where do we go from here?


Given that the government's working majority is now down to one, there have been lots of rumours swirling round the newspapers over the past few days about the possibility of a general election being called, and whether this might be before or after Brexit day, 31 October 2019.

One possible scenario is that there is a vote of no confidence in the government, which triggers a general election under the Fixed-term Parliaments Act 2011 (FTPA). However, even if such a vote of no confidence were to take place in early September, as soon as MPs return to Westminster following the summer recess, there is no guarantee that a general election would happen before 31 October 2019, as Section 2(7) of the FTPA provides that the polling day for the general election will take place on "a day appointed by Her Majesty by proclamation on the recommendation of the Prime Minister". Therefore, the Prime Minister could choose to delay the election until after Brexit day.

Another possibility is that, during the 14-day "cooling off period" stipulated in the FTPA (i.e. after a vote of no confidence has passed and before a general election must be called) that other parties might try to come together to form an alternative "government of national unity" with the aim of delaying Brexit until after a general election could take place. If this happened, Mr Johnson would be obliged to resign and a new prime minister could request a further Brexit delay to prevent a no-deal outcome. There have even been suggestions, given the unlikelihood that any Conservative MPs would be prepared to support Jeremy Corbyn, that a less divisive figure, such as the father of the house and an ardent Europhile, Ken Clarke, could be a possible alternative.

Another consideration to bear in mind, given the government's wafer-thin majority, is whether there might be a move by parliament to vote to revoke Article 50 (the European Court of Justice ruled last year that the UK could revoke Article 50 itself, without having to ask the other 27 EU countries for permission). Despite the potentially huge political ramifications of doing so, this is an option which may be considered by remain-supporting MPs if a no-deal scenario is looming large. However, Jacob Rees-Mogg is the Leader of the House of Commons (i.e. the MP responsible for arranging government business in the House of Commons) which means that he has significant control over the parliamentary agenda, and would be likely to obstruct any attempt by MPs to obtain parliamentary time to vote on such a move.

The third possible option – for the UK to request a further extension of the Brexit deadline beyond 31 October - is currently ruled out by Boris Johnson. However, if circumstances were to change for whatever reason (e.g. as set out above, in order to allow a general election to be called), this is an option which could come back on the table. This would require the UK to request an extension from the EU, and for each of the other 27 EU member states to agree to this. The European Commission President-Elect, Ursula von der Leyen, signposted, during her opening statement in the European Parliament Plenary Session on 16 July 2019, that the EU could accept another UK extension, stating that she stood "ready for a further extension of the withdrawal date, should more time be required for a good reason", adding that "in any case, the UK will remain our ally, our partner and our friend".

Law Society calls on Government to avoid no-deal Brexit


Earlier today, the Law Society (of England & Wales) issued a plea to the Government to avoid leaving the EU without a deal, which it predicts could result in a decrease in UK legal services turnover of £3.5 billion (nearly 10% of turnover) and the possible loss of up to 10,000 jobs. It also calls on the Government to seek to negotiate a future agreement with the EU, replicating the current EU Lawyers' Directives*, to enable English and Welsh solicitors to maintain their right to practise in the EU. It points out that the UK is the largest legal services exporter in the EU (and the second largest in the world after the United States) and that the comprehensive practice rights provided for in the Lawyers' Directives have directly contributed to the UK legal sector's large export surplus (£4.4bn in 2017).

The Law Society points out that, if the UK were to leave the EU without having a Withdrawal Agreement in place, it would no longer be negotiating for legal services market access with the EU, but with 31 different regulatory regimes, with different levels of restrictions placed on third-country lawyers. (Note: the Law Society is currently in bilateral discussions with a number of EU bars in order to secure the position of solicitors in the event of a no-deal Brexit: this summary, which it issued yesterday, sets out the current state of play, although it contains no mention of the Republic of Ireland. From my separate discussions with the Law Society, I understand that – in the event of a no-deal/hard Brexit – English and Welsh-qualified solicitors would not be able to rely on an Irish PC for practice in the EU, as they would not (in most cases) meet the requirement of being an EU national.)

The Law Society is also at pains to point out that the Free Trade Agreement (FTA) model for a future EU-UK partnership agreement, which had been the proposed model set out in the Political Declaration and White Paper, would not deliver the framework required for the optimal performance of the UK legal services sector. It warns that, were the UK to choose to pursue this model, several important rights for UK lawyers and their clients would not be automatically guaranteed, such as the unrestricted ability to provide legal advice into another member state when not established in that member state; recognition of practice vehicles/legal forms, such as limited liability partnerships; the protection of lawyer-client communications by legal professional privilege at EU level, when in private practice and rights of audience in front of the Court of Justice of the EU.

Finally, the Law Society also points out that the English and Welsh legal services sector is seen as an attractive destination for international law students, academics, newly-qualified lawyers and experienced lawyers alike, and has been for many years, but that this is now at risk on account of Brexit. Despite the UK not yet having left the EU, the prospect of its doing so has already had a negative impact: e.g. so far this year the number of SRA-regulated law firms in the EU dropped from 201 to 187 (a 7% decrease) and there has been a 5% decrease in practicing certificate (PC) holders in the EU member states, when compared to 2017.

(* Directive 98/5/EC and Directive 77/249/EEC)

Boris Johnson just announced as Prime Minister


Boris Johnson wins the Conservative leadership contest, beating Jeremy Hunt to be named the next prime minister.

The ballot results are as follows:

Boris Johnson – 92,153
Jeremy Hunt – 46,656

JULY 24 - Theresa May (TM) will hand over power to her successor:

  • After 10am - TM due to depart Downing Street and travel to parliament to deliver her final PMQs at 11am.
  • 12 noon - TM expected to return to Downing Street. 
  • Approx. 1pm - TM to travel to see Her Majesty at Buckingham Palace and formally stand down. 
  • Approx. 3pm - Boris Johnson to travel to visit Her Majesty and be asked to form a government. He is then expected to enter Downing Street. 

No details of plans for that day have been announced, but it is highly likely to include a speech on the steps of No 10 and may include the naming of some senior cabinet positions. Mr Johnson could face an immediate test of their ability to govern. The Labour Party could bring forward a motion of no confidence, and if the government were to lose a vote of confidence, it would have 14 days within which it could try to win another vote or a general election would be triggered. However, it is more likely that the Labour Party will hold fire until closer to the 31 October deadline before doing so.

JULY 25 - Parliament is due to break up for its summer recess. If a no confidence vote were to be held before MPs leave for their summer recess, it would have to take place on this day.

SEPTEMBER 3 - Parliament is scheduled to resume for a short session which typically lasts around two weeks before there is another break while the political parties hold their annual conferences. The exact length of this session has not been announced.

SEPTEMBER 21-25 - The Labour Party holds its annual conference.

SEPTEMBER 29 to OCTOBER 2 - The Conservative Party holds its annual conference.

EARLY/MID-OCTOBER - Parliament resumes following the party conferences. The exact dates for this session have not been announced.

OCTOBER 31 - UK due to leave the European Union.

Two fresh blows for Boris


It's been a bad afternoon for Boris Johnson.

In the past couple of hours, the Office for Budget Responsibility has published a report which states that a no-deal Brexit could have a negative impact of £30 billion on the UK economy.

And in the House of Commons, during the debate this afternoon on the Northern Ireland (Executive Formation) Bill 2017-19, a "rebel" amendment which requires the Commons to sit and conduct proceedings in the lead-up to 31 October 2019, passed by 315 to 274, a majority of 41. Of particular interest is the margin of victory for the anti no-deal MPs, given that a number of similar votes have previously scraped through by a margin of one or two votes. This will send an important signal to Mr Johnson that parliamentary opposition to Britain crashing out of the EU is becoming even stronger. What is also interesting to note is the fact that 17 Conservatives voted with the rebels, signalling to Mr Johnson that opposition to no deal within his own party is growing. And it is likely to grow further in the coming weeks, when government ministers such as Philip Hammond, Greg Clark and David Gauke, each of whom abstained today, return to the backbenches.

Watch this space…

Panorama tonight: "Britain’s Brexit Crisis"


As the clock ticks down to the appointment of a new Prime Minister next Tuesday (who will take office next Wednesday, the day before the House of Commons rises for its summer recess) you may be interested in watching  Panorama at 9pm this evening for a "tell all" documentary on how we came to be staring into the abyss of a no-deal departure on Hallowe'en, and the mistakes and miscalculations made by politicians and negotiators along the way.

If you don't get a chance to watch the programme, the BBC have also collated some of the main issues which emerge from the documentary into an interesting summary, entitled "10 things that stopped Brexit happening".

In a recent blog post (Brexit - a poisoned chalice for the Conservative Party?) I referred to the threat by John Major to seek a judicial review of any decision by Boris Johnson to prorogue Parliament, and in a subsequent blog post (Another anti-prorogation White Knight rides in...) to Gina Miller's threat to do likewise. If you're interested in the legal "ins and outs" of this issue, the Institute for Government has produces a very helpful summary entitled "Could the courts stop Boris Johnson from suspending Parliament?".

However, that wouldn't necessarily be the end of the story as, according to HuffPost, the Chancellor, Philip Hammond (yes – eminently sensible "Spreadsheet Phil") has told colleagues that he would be prepared to effectively stage a Commons "sit in" to avoid a no-deal Brexit being rammed through by Boris Johnson even if Parliament were to have been officially prorogued.

Another anti-prorogation White Knight rides in...


In yesterday's excitement at Lord's, Wimbledon and Silverstone, you may not have spotted that anti-Brexit campaigner Gina Miller has threatened to take legal action against Boris Johnson were he to attempt to prorogue Parliament in order to force through a no-deal Brexit. Her lawyers, Mishcon de Reya, have written to Mr Johnson saying that such a move would not only be "constitutionally unacceptable" but also unlawful, and would lead them to mount an urgent judicial review. Miller has already assembled the same legal team (including QCs David Pannick and Tom Hickman) that successfully challenged Theresa May in early 2017, forcing her to grant MPs a vote before triggering Article 50.

Watch this space...

Brexit - a poisoned chalice for the Conservative Party?


It is said that great empires collapse from the centre, and today's spectacle of a former Tory Prime Minister announcing that he would seek a judicial review of the action (were it to occur) of the man who is widely expected to become the next Tory Prime Minister could well be seen by future historians as the sounding of the death-knell for the British institution that is the Conservative Party.

Earlier today, John Major said that, were Boris Johnson to seek to prorogue (i.e. suspend) parliament in order to force through a no-deal Brexit outcome on 31 October – something which Mr Johnson refused to rule out in last night's televised debate of the two leadership contenders – then he would personally seek to have such a decision judicially reviewed, on the basis that it would be an attempt to bypass the will of parliament.

This is a salutary reminder to Mr Johnson that he should attempt to bypass parliament at his peril, particularly given that yesterday Dominic Grieve (the former Conservative Attorney General) – in a parallel push to avoid the possible prorogation of parliament by Mr Johnson in order to force through a no-deal Brexit – succeeded in narrowly passing an amendment to the Northern Ireland Bill which will require ministers to regularly report to parliament on the situation in Northern Ireland - thereby making it harder for an incoming prime minister to suspend parliament.

At the same time, the Labour Party is (very slowly) edging towards a pro-Remain stance, with Jeremy Corbyn yesterday stating that the Labour Party would take this position to stop "no deal or a damaging Tory Brexit" – but without clarifying what he would do if the Labour Party were to win a general election and be placed in charge of the Brexit process.

In terms of the timeframe for the installation of the new Prime Minister, polling of the 160,000-odd Conservative Party members closes at 5pm on Monday 22 July, and the winner of the contest will be announced the following day. However, Theresa May is expected to carry on as Prime Minister for 24 hours longer - and to host a final PMQs before handing her resignation to the Queen on Wednesday 24 July. The new Prime Minister will then be installed almost immediately afterwards, after themselves going to see the Queen. Parliament rises for its summer recess the following day, returning on 3 September 2019.

Four months to Exit Day - taking stock of where things currently stand on Brexit


As things currently stand, the UK will leave the EU at 11pm on 31 October UK time (midnight on 1 November, Brussels time) – just under four months from now. A good time, therefore, to take stock of where we have got to, and what lies ahead in the coming months.

Tomorrow, the new European Parliament meets for the first time, and British MEPs will return to Brussels to take up their seats – but, unless there is a further Brexit extension, this will be a fairly short sojourn. MEPs voted last year to abolish 46 of the UK's 73 seats and to redistribute the remaining 27 to member states who had raised concerns that they were currently under-represented – e.g. 5 additional seats for France and Spain, and three more for Italy and the Netherlands.


On the home front, both Boris Johnson and Jeremy Hunt have been ratcheting up the pro-Brexit rhetoric in an attempt to appeal to the 160,000 Conservative Party members who hold the key to Downing Street. In a hustings speech earlier today, Jeremy Hunt said that, as PM, he would decide by the end of September whether there was a "realistic chance" of reaching a new Brexit deal with the EU, and would abandon talks after that date if there was no "immediate prospect" of progress - and then move to a no-deal footing. Boris Johnson has vowed to leave "come what may, do or die" by 31 October.

Given that the time available between the election of a new PM (on Monday 22nd July) and the Brexit departure date includes the parliamentary summer recess and the party conference season, the likelihood of negotiating a settlement with the EU before the end of October is very low – and therefore the likelihood of a no-deal outcome is increasingly likely, unless the UK requests – and the EU grants – a further extension. A decision by the EU27 to grant a further extension would need to be unanimous, and Emmanuel Macron has been making loud noises about not wanting to grant a further extension. Indeed, Ivan Rogers – the UK's former Ambassador to the EU – has written a clear-sighted and fascinating article in the Spectator entitled "Why no-deal is now the most likely Brexit outcome" which I would urge you to read (note: there is a very simple registration process to access this article: just fill in your e-mail address and a password and you're in).

Meanwhile, foreign investment into UK industry has plunged since the 2016 Brexit referendum, according to a report published last week by the Department for International Trade. Investors have historically seen the UK as one of the most attractive destinations (thereby providing support for economic growth, job creation and technological progress) but the number of foreign investment projects into the UK dropped by 14 per cent to 1,782 in the fiscal year ending March 2019, marking the lowest level in six years, according to the report.

It is the second consecutive annual fall since March 2017. In addition, Philip Hammond warned, in his recent Mansion House speech, that a no-deal Brexit would harm the British economy, devour a £26.6bn Brexit war chest, and risk the break-up of the UK. From across the political divide, Gordon Brown warned that, as well as the economic damage which a no-deal Brexit would cause, the UK itself risked "unravelling" due to Brexit and the "narrow nationalism" of the Conservative and SNP governments.

Indeed, this appears to be a very valid concern, given that, in a recent You Gov poll of Conservative Party members (i.e. the electorate for the next Prime Minister) when asked whether they would rather avert Brexit if it would lead to Scotland or Northern Ireland breaking away from the UK, 63% and 59% respectively of them said they would be willing to pay for Brexit with the breakup of the United Kingdom. (In a study published last year, researchers at Queen Mary University of London estimated that 97 per cent of the party's members were white, 71 per cent were male and 44 per cent were 65 or older.)

Last month, the Labour Party, in an attempt to legislate to prevent a no-deal outcome, tabled a motion seeking to set aside parliamentary time to do so. Although the motion had some Conservative support it failed to muster the necessary votes, losing by 309 to 298. However, a new PM would be likely to face a vote of no confidence, and a small number of Conservative MPs (including Ken Clarke and the former attorney general, Dominic Grieve) have said that they would support a motion of no confidence in a new PM in order to avoid a no-deal Brexit.

According to defence minister, Tobias Ellwood, the number of Conservative MPs would be prepared to vote against the government in a no-confidence motion could be up to a dozen which, given the government's extremely slim majority, would leave it requiring support from Labour MPs in leave-voting constituencies to enable it to survive. Losing a vote of no confidence would, almost inevitably, lead to a general election being called – and the parliamentary arithmetic which this would throw up is anyone's guess. In terms of when the Labour Party might choose to call a vote of no confidence, timing is everything. Rather than attempting to do so as soon as a new PM is in situ, it might choose instead to wait until closer to the 31 October deadline, when a no-deal Brexit is looming large. The fact that there is an EU summit scheduled for October 17-18 could definitely influence its thinking on this.

In terms of the legislation which the UK would need to enact in order to avoid a legal "black hole" as a result of a no-deal outcome, as recently as February, the government said it needed to pass six more Brexit bills to fully prepare for no deal. Since then, only one has made it onto the statute book. Government ministers and the Cabinet Secretary, Sir Mark Sedwill, appear convinced that they could manage without the remaining bills, but how the government has achieved this remains unclear. The Institute for Government has penned an interesting article entitled "No deal Brexit could be a legal mess" which sets out the various possible outcomes. Finally, for anyone particularly interested in constitutional law, you might also like to read Brexit and the UK constitution—a constitutional crisis or a constitution in action?, a short article by Dr Jack Simson Caird, at the Bingham Centre for the Rule of Law, in which he discusses the constitutional issues which have arisen due to the UK's decision to leave the EU, outlining key events since the EU referendum and challenges faced by current and future governments in the unprecedented circumstances of Brexit.

Raab out of Tory leadership contest


The results of the second round of the Conservative leadership contest have now been announced, and Dominic Raab has been knocked out. Boris Johnson has increased his lead, and Rory Steward has almost doubled his vote.

The votes are as follows:

Boris Johnson - 126

Jeremy Hunt - 46

Michael Gove - 41

Rory Stewart - 37

Sajid Javid - 33

Dominic Raab - 30 - KNOCKED OUT

This result means that the possibility of Parliament being prorogued (i.e. ending the parliamentary session) in order to force through a no-deal departure on 31 October (which Dominic Raab had said he would consider) is now no longer on the table.

The BBC will be hosting a debate by the remaining candidates at 8pm tonight. The leadership race continues tomorrow and Thursday, with successive ballots until only two candidates remain. Conservative Party members will then be balloted and the new leader is expected to be announced during w/c 22 July. 

Boris polls whopping 114 votes in first round of Tory leadership contest


The votes are in, and Boris Johnson has polled a whopping 114 votes in the first round. His nearest rival, Jeremy Hunt, polled 43, with Michael Gove on 37, and Sajid Javid on 23. Both female contenders (Andrea Leadsom and Esther McVey) are out of the competition, as is Mark Harper, having failed to gain the 17 votes necessary to proceed to the next round of voting which will take place next week.

Brexit: parliament rejects Labour attempt to stop no-deal Brexit


As you may have seen on the news last night, MPs have rejected – by 309 votes to 298 - a Labour-led effort to take control of the parliamentary timetable as a preliminary step to legislating against a no-deal Brexit. However, shadow Brexit Secretary, Kier Starmer has warned that the opposition will continue with its efforts to block a no-deal Brexit, hinting at using "other procedural mechanisms" to do so. Watch this space… 

Labour Party sets up parliamentary showdown on no-deal Brexit


In the last few minutes the Labour Party has tabled a cross-party motion for tomorrow which would hand over control of the parliamentary agenda on Tues 25 June to prevent a future Prime Minister proroguing Parliament to force through a no-deal Brexit against the will of Parliament.

As you will be aware, several candidates in the Tory leadership race say the UK must leave on 31 October - even if that means leaving without a deal. Labour's Brexit spokesman Sir Keir Starmer has said: "MPs cannot be bystanders while the next Tory prime minister tries to crash the UK out of the European Union without a deal and without the consent of the British people. That's why we are taking this latest measure to end the uncertainty and protect communities across the country. My challenge to MPs who disagree either with a no deal Brexit or proroguing Parliament is to back this motion and act in the national interest." The Labour Party believes MPs could then introduce legislation to stop no-deal.

The fact that the Speaker of the House of Commons, John Bercow, has recently rejected the possibility ("it's just not going to happen") of ending the current Commons session (i.e. proroguing Parliament) in order to force through a no-deal (something which Tory leadership hopeful, Dominic Raab, has said he would be prepared to do) indicates the depth of feeling in the House of Commons on this issue. In addition, the swift passage of the European Union (Withdrawal) Act 2019 through all its parliamentary stages in April - with the aim of creating a mechanism under which the House of Commons could exert greater control over the process of extending the Article 50 negotiating period - certainly seems to indicate that there is a majority in the House of Commons (albeit a slim one) opposed to a no-deal outcome.

Updated list of signed FTAs ... plus an interim trade deal with South Korea


The government has published an updated list of the trade agreements and mutual recognition agreements which the UK has signed with non-EU countries, to enable trade to continue with (hopefully) minimal disruption after the UK leaves the EU. It has also released a report entitled "UK trade with trade agreement continuity (TAC) countries - the statistics" which states that agreements have now been signed with countries accounting for 53% of the UK's trade with TAC countries. Once the UK-Korea Agreement is in place (see below), this number will rise to 63% of that trade. The report states that the agreements secure continuity on £88bn of UK trade, increased from £39bn in the past three months. Target TAC countries, with whom agreement is yet to be reached, include Canada and Mexico. The government has also issued an updated version of its guidance note on existing trade agreements if the UK leaves the EU with no deal.

Yesterday the UK reached a preliminary trade deal with South Korea. The "in principle" deal extends (in general terms) the current trade terms between the two countries as set out in the EU-South Korea Free Trade Agreement, which was ratified in December 2015. However, the agreement between the UK and South Korea is not a permanent trade deal and would need to be renegotiated within two years. The interim agreement, which marks the first post-Brexit trade deal the UK has secured in Asia, is designed to cover South Korean exports including cars and auto parts, and UK exports including crude oil, cars and whisky. The two countries also agreed to protect intellectual property rights related to wines, aromatized wines and spirits, such as Scotch whiskies, Irish whiskies and South Korean aromatized wines.

Brexit - government spends at least £97 million spent on consultancy fees (and there's more to come...)


The UK government spent at least £97 million on external consultancy work to support Brexit preparations, the National Audit Office has found. The audit found a lack of due transparency in the awarding of contracts, and in some cases the irregular use of framework contracts. Preparing for the UK's exit from the EU was a significant challenge for departments, requiring skills such as project delivery and commercial skills which were in short supply. This lack of expertise resulted in a massive increase in the use of consultancy services to fill the gap. Six consultancy firms received 96% of Brexit-related work under an arrangement with the Cabinet Office. These were by value: Deloitte (22%); PA Consulting (19%); PricewaterhouseCoopers (18%); Ernst & Young (15%); Bain & Company (11%); and Boston Consulting Group (10%). Most individual pieces of work with consultants ran for less than three months, but departments regularly extended these, with a peak in extensions in April 2019, following the extensions of Article 50 and the changes to the date when the UK was expected to leave the EU. Departments continue to prepare for EU Exit and therefore total spend on consultanc support will rise.

In a related development, the Institute for Government has published a worrying article stating that the UK is now less prepared for no deal than it was back in March. Most senior managers in the civil service change jobs after two years, which means that many of the 16,000 civil servants working on Brexit will now be looking to move on. The internal civil service jobs market means that if you want to 'get on' then you need 'move on', but the anticipated high rate of turnover also reflects the fact that many officials were worked into the ground in the run up to 29 March. Therefore, by October, with the Brexit deadline rapidly approaching, the officials in some of the key no-deal jobs could well have been in post for little more than a few months. The article concludes that the new Prime Minister is "likely to inherit a set of plans for no deal that are not much more developed than they were in March – and may well be overseen by a set of faces that are either too fresh or too jaded for the task."

The EU’s no-deal preparedness programme - Report by House of Commons Library


The House of Commons Library has published a very helpful 57-page report on 'EU preparations for a no deal Brexit', which looks at both EU-level preparations for a no-deal Brexit and those preparations currently being put in place by individual EU Member States.

If the UK leaves the EU without having ratified a withdrawal agreement there will obviously be serious repercussions for the EU as well as for the UK. European Commission preparations to mitigate the impact of a disorderly or no-deal Brexit began in December 2017, and on 25 March 2019 the Commission declared that its no-deal "Brexit preparedness" programme was complete. The Commission has published 93 so-called "preparedness notices", and 46 legislative measures have been proposed or adopted – e.g., legislation amending EU Regulation 2018/1806 will allow short-stay visa-free travel for UK citizens in the EU27 States, on the basis of UK reciprocity (this will also apply in Norway, Iceland, Liechtenstein and Switzerland, which are in the Schengen area).

According to the authors of the report, the European Commission's programme is one of "damage limitation" in areas that would be most seriously affected and could create problems for the EU27. It includes measures in the financial sector, transport and travel, customs and the export of goods, climate policy, agriculture and fisheries, social security coordination, the ERASMUS and PEACE programmes, cooperation in the export of dual-use items, international trade in services and foreign direct investment. The new measures will, for example, facilitate road haulage, rail and aviation continuity between the UK and the EU27, or compensate fishermen for Brexit-related losses. The measures are mostly temporary (around 9-12 months) and a future EU-UK relations agreement is expected to provide long-term arrangements.

In addition to implementing the EU's no-deal preparedness legislation, EU Member States have also made their own plans to mitigate the impact of "no-deal" outcome on their economy, trade, business, services, transport and a range of other sectors. Many have planned border and customs adaptations, for example. Those with major ports (e.g. Belgium) and significant trade with UK (e.g. the Netherlands) have provided extra border infrastructure and new technology systems, and recruited extra customs or veterinary staff (e.g. France, Ireland, Poland, Netherlands, Spain). Portugal, for example, is planning to open special lanes for UK tourists at airports.

Brexit - timescales for the interregnum period and count-down to 31 October departure date


Downing Street confirmed on Monday that Mrs May would not push legislation implementing her Brexit deal to a vote by MPs this week as she had originally intended, signalling that she would hand to her successor the task of trying to end the parliamentary stand-off over the UK's exit terms from the EU.

Yesterday the Conservative party board agreed a change to the rules for electing a new leader, which will require each leadership contender to have eight nominations to get onto the ballot, and then win the support of at least 17 MPs in the first round. Then at the second ballot, any candidate receiving 32 votes or fewer will be eliminated, with rounds continuing until only two remain. The first round will take place on 13 June, and further ballots are scheduled for 18 June, 19 June and 20 June. Conservative Central HQ will then take over for the membership stage of the contest, with the first membership hustings on 22 June and the contest closing in the week beginning 22 July.

Therefore, we should know by the end of next month what the direction of travel is likely to be on Brexit, and the likelihood of a no-deal scenario at the end of October. As you will be aware, some of the prospective candidates for Conservative Party leader are not opposed to the UK leaving the EU without a withdrawal agreement, others talk of renegotiating the 'Irish backstop', negotiating a managed no-deal exit, bilateral 'mini-deals' with the EU, holding a second referendum or people's vote and taking a no-deal Brexit off the table.

However, this timetable leaves very little time for Mrs. May's successor to thrash out a deal, give that Parliament is expected to rise for its summer recess in the second half of July and will not return until September - when MPs are expected to hold a "mini-session" lasting two weeks before the party conference season.

By the time MPs return to Westminster after the conferences, it will be October 7 — just 10 days before Brexit is reviewed by EU leaders at a special summit. Several Conservative leadership contenders, including Eurosceptics Boris Johnson and Dominic Raab, claim they could negotiate a better deal in Brussels and win approval for complex implementation legislation at Westminster by October 31. In practice, the House of Commons might be sitting for 20 days or fewer before the EU summit in October, when another Brexit extension could be on the agenda. Mr Raab and Mr Johnson insist Britain will leave on October 31, with or without a deal. International Development Secretary and fellow leadership contender, Rory Stewart told the BBC today that there was "not a hope" of renegotiating the deal with the EU by the end of October, and that anyone promising to renegotiate by October was effectively committing to leaving without a deal.

No-deal Brexit - Speaker of House of Commons gives his views


I mention in my blog post below the limited options available to Parliament (by way of constitutional law and parliamentary conventions) were it to attempt to stop a determined PM from forcing through a no-deal Brexit on 31 October 2019. You may be interested to know that the Speaker of the House of Commons has subsequently commented that "There is a difference between a legal default position and what the interplay of different political forces in Parliament will facilitate", as well as pointing out in relation to a possible revocation of Article 50 that the mechanism to leave the EU was triggered under the last Parliament and that "no Parliament can bind the hands of its successor". As you may be aware, Mr Bercow has been accused of bias on Brexit issues by pro-Brexit MPs and others, but has now confirmed that he will be staying on as Speaker while the Brexit crisis continues.

BREXIT: no-deal or NOT no-deal?


Following Theresa May's announcement of her resignation as leader of the Conservative Party the question arises whether a new PM could force through a no-deal Brexit in the House of Commons, if he/she were so minded, despite there being a majority in the House of Commons opposed to a no-deal outcome. This opposition was evidenced last month by the swift passage of Yvette Cooper's Private Member's Bill - the European Union (Withdrawal) Act 2019 - whose purpose was to create a mechanism under which the House of Commons could exert greater control over the process of extending the Article 50 negotiating period. The Bill passed all of its House of Commons stages on 3 April 2019, and was passed by the House of Lords on 8 April 2019, receiving Royal Assent the same day. Finding time to debate a Private Member's Bill can be difficult and, in this case, was achieved on the basis of a successful amendment to a Government Motion by the Conservative MP, Sir Oliver Letwin. The swift passage of the Bill, with support from MPs from a wide range of political persuasions, is a reminder that there is a majority in the House of Commons who are extremely opposed to a "no-deal Brexit" and are, if necessary, prepared to vote against the party whip in order to avoid such an outcome.

However, if a new prime minister was to propose leaving the EU on a no-deal basis (which both Boris Johnson and Dominic Raab have said they would do on 31  October, if agreement cannot be reached), then it would be very difficult for MPs to take control of the parliamentary timetable, as described above, and force through similar legislation again. The reason for this is that, last time around, MPs opposed to a no-deal Brexit were able to take advantage of Section 13 of the European Union (Withdrawal) Act 2018 which sets out a requirement for a "meaningful vote" by the House of Commons to ratify the terms of the Withdrawal Agreement – enabling MPs to take over the parliamentary timetable and hold a series of "indicative votes" on the way forward. However, if the new PM proposed leaving on a no-deal basis then there would be no need to have any further meaningful votes on the terms of the Withdrawal Agreement – and therefore no opportunity for MPs to take control of the parliamentary timetable once again. As Nick Boles MP (Conservative), one of the MPs behind the European Union (Withdrawal) Act 2019, has stated: "If there are no more Section 13 motions, there's no legislative jumping-off point to amend, to suspend standing orders, allocate a day and move a bill. If the EU Withdrawal Agreement Bill is defeated, there is no other vehicle."

The only sure-fire way around this would be a vote of no confidence in the government – the so-called "nuclear option" – which would (after a 14-day period when other MPs could try to form a government and win the support of the House of Commons) trigger a general election. Although this would – particularly for Conservative MPs - be akin to turkeys voting for Christmas given the current political climate, Philip Hammond has refused to rule out voting down his own government in a no-confidence motion if a new PM were to seek to take the UK out of the EU without a deal – see s FT article for further details. This is yet another example of the truly extraordinary political times which we are going through at the moment.

Update re Brexit bill: will NOT be published on Friday after all


Earlier today government whip Mark Spencer, standing in for Andrea Leadsom, the former Leader of the House of Commons who resigned last night, advised the Commons that the European Union (Withdrawal Agreement) Bill would not, as previously advised, be published tomorrow, stating "We will update the House on the publication and introduction of the Withdrawal Agreement Bill on our return from the Whitsun recess."

He added that the government had planned to publish the bill in the first week of June: "We had hoped to hold second reading on Friday 7 June," but "At the moment, we have not secured agreement to this in the usual channels. Of course we will update the House when we return from recess."

The question is, of course, whether the Withdrawal Agreement Bill will ever see the light of day, given that Theresa May's premiership is hanging by a thread. Some believe that she is only holding on until next Wednesday, when she will overtake Gordon Brown as the 35th longest-serving Prime Minister in UK history. 

PM parliamentary statement re Brexit: confirms draft Brexit Bill to be published on Friday


In the past hour, Theresa May has made a statement in parliament on the details of her revised Brexit offer – it confirms the details which were set out in her speech yesterday, but gives a bit more on timeframe, stating "Following the end of EU election purdah, the Withdrawal Agreement Bill will be published on Friday so the House has the maximum possible time to study its detail. If Parliament passes the Bill before the summer recess, the UK will leave the EU by the end of July."

However, as you will no doubt have seen in the press, rather than successfully wooing Labour MPs into voting for the Bill, her revised offer has been roundly rejected by Labour MPs, with the shadow Brexit secretary Sir Keir Starmer condemning it as being "too weak", and has incensed Conservative Brexiteers to the extent that they have asked the Conservative backbench 1922 Committee to consider this evening a rule change to allow a no-confidence vote in her leadership.

Watch this space…

PM’s speech on new Brexit deal: MPs will get vote on whether to hold another referendum PROVIDED they back the EU Withdrawal Agreement Bill


In the last few minutes, the PM has launched her last-ditch strategy to get the European Union (Withdrawal Agreement) Bill passed – and it includes giving MPs a vote on whether to hold another referendum PROVIDED they back the EU (Withdrawal Agreement) Bill. Her strategy (see below for further details, especially the parts I have highlighted) is effectively to "blackmail" the Brexiteer wing of her party with the bogeyman of revocation of Article 50, and at the same time to woo those on the opposition benches with the possibility of a second referendum.

According to the BBC's Laura Kuennsberg: "As I understand it - requirement to have vote on another referendum is a promise to give time at committee stage of bill if MPs wave it through at its 2nd reading - in other words promising to make [sure] there's a vote on holding another referendum but only if MPs back govt next week."

The PM summarises her final offer as follows: 

"So our New Brexit Deal makes a ten-point offer to everyone in Parliament who wants to deliver the result of the referendum.

One - the Government will seek to conclude Alternative Arrangements to replace the backstop by December 2020, so that it never needs to be used.

Two - a commitment that, should the backstop come into force, the Government will ensure that Great Britain will stay aligned with Northern Ireland.

Three - the negotiating objectives and final treaties for our future relationship with the EU will have to be approved by MPs.

Four - a new Workers' Rights Bill that guarantees workers' rights will be no less favourable than in the EU.

Five - there will be no change in the level of environmental protection when we leave the EU.

Six - the UK will seek as close to frictionless trade in goods with the EU as possible while outside the single market and ending free movement.

Seven - we will keep up to date with EU rules for goods and agri-food products that are relevant to checks at border protecting the thousands of jobs that depend on just-in-time supply chains.

Eight - the Government will bring forward a customs compromise for MPs to decide on to break the deadlock.

Nine - there will be a vote for MPs on whether the deal should be subject to a referendum. (emphasis added) and

Ten – there will be a legal duty to secure changes to the political declaration to reflect this new deal.

All of these commitments will be guaranteed in law – so they will endure at least for this Parliament.

The revised deal will deliver on the result of the referendum.

And only by voting for the Withdrawal Agreement Bill at Second Reading, can MPs provide the vehicle Parliament needs to determine how we leave the EU.

So if MPs vote against the Second Reading of this Bill – they are voting to stop Brexit.

If they do so, the consequences could hardly be greater.

Reject this deal and leaving the EU with a negotiated deal any time soon will be dead in the water. (emphasis added)

And what would we do then?

Some suggest leaving without a deal.

But whatever you think of that outcome – Parliament has been clear it will do all it can to stop it.

If not no deal, then it would have to be a General Election or a second referendum that could lead to revocation – and no Brexit at all.

Who believes that a General Election at this moment – when we have still not yet delivered on what people instructed us to do – is in the national interest?

I do not."

UK Brexit legislation - current state of play


Earlier today the House of Commons Library issued a Research Briefing entitled "Negotiations on the UK leaving the EU during the EU extension period" which helpfully sets out the current status of the transposition of EU legislation into UK legislation (both primary legislation and SIs). I've copied out the relevant section below for your information.

Also, just FYI in relation to the European Union (Withdrawal Agreement) Bill, Theresa May is apparently still tinkering with the wording in the areas of workers' rights, the environment and consumer protection, in a (vain?) attempt to make it more palatable to Labour MPs. It therefore hasn't been published yet. As soon as it becomes publicly available I will circulate.


Brexit legislation

A 'no deal' Brexit requires legislation to ensure the UK has measures in place to replace EU legislation, which will no longer apply. Some of the primary legislation needed to facilitate this has been passed (e.g. the Taxation (Cross-border Trade) Act 2018; the Sanctions and Anti-Money Laundering Act 2018, the Haulage Permits and Trailer Registration Act 2018, the Nuclear Safeguards Act 2018 and the Healthcare (European Economic Area and Switzerland Arrangements) Act 2019).

Other Brexit Bills are going through Parliament (e.g. the Trade Bill, Agriculture Bill, Immigration and Social Security Co-ordination (EU Withdrawal) Bill, Fisheries Bill, Financial Services (Implementation of Legislation) Bill). 

A few are draft Bills and are expected to be included in the next Queen's Speech (e.g. the Environmental Principles and Governance Bill 2017-19and the Animal Welfare (Sentencing and Recognition of Sentience) Bill).

The European Statutory Instruments Committee (ESIC) has made progress in dealing with EU exit SIs under the EU Withdrawal Act 2018 and other Acts of Parliament. On 4 April Leader of the Commons Andrea Leadsom said the programme of Brexit Statutory Instruments was "almost complete" and that the Government expected to lay about 550 in total. According to Hansard Society figures:

528 Brexit-related SIs have been laid since the EU (Withdrawal) Act received Royal Assent on 26 June 2018. Of these:

362 have been laid using powers in the EU (Withdrawal) Act 2018 only;

103 have been laid using powers in other Acts of Parliament;

63 have been laid using a combination of powers in the EU (Withdrawal) Act 2018 and in other Acts of Parliament.


Treaty continuity programme

The Government is continuing with its 'treaty continuity programme' in which it aims to implement 'replacement' treaties for current EU agreements with third parties, so that the UK can continue to trade, for example, with these states on a similar basis to now but in a bilateral context. The programme aims to prepare the UK for any exit scenario, with a view to the replacement treaties entering into force either at the end of the transition/implementation period or on a no-deal exit day.

Progress in this is programme is discussed in:

CBP 8370, UK adoption of EU external agreements after Brexit, updated 5 March

CBP 7792, UK progress in rolling over EU trade agreements, updated 26 April 2019

Parliament's role in scrutiny of treaties and treaty making (now and in the future)

The parliamentary scrutiny of the replacement agreements and Parliament's possible role in future treaty-making is considered in CBP 8509, Brexit: parliamentary scrutiny of UK replacement treaties, May 2009. 

House of Commons Library: Briefing Paper on "Brexit - parliamentary scrutiny of replacement treaties"


Just to let you know that the House of Commons Library has published a report on the government's 'Treaty Continuity Programme' post-Brexit. At the moment, the UK is party to around 800 bilateral or multilateral agreements negotiated and concluded by the EU with third countries and organisations. The government is attempting to replace these EU treaties with new UK treaties with third countries/organisations concerned, with a view to their entering into force either at the end of the Brexit transition period or on a no-deal exit day. It is also currently negotiating treaties with a number of individual EU states.

The House of Lords EU Committee has, since the beginning of 2019, taken on a temporary new role of scrutinising these replacement agreements. The Commons response has been less structured: various Commons Committees have been taking evidence from government Departments about the Treaty Continuity Programme but (according to the House of Commons Library report) "there is little coordination between them and little experience of treaty scrutiny to draw on". Several committees in both Houses have begun to call for additional powers of scrutiny of treaties (new committee arrangements; much more information from government; earlier parliamentary engagement, etc.) so the balance between Parliament and Government on treaties looks like it may be shifting in favour of Parliament (while respecting the fact that the actual negotiation will be undertaken by the Government).

The report helpfully lists out (at Appendix II) the state of play on the various treaties which are currently in the process of being negotiated, both with other EU states and with Non-EU/EEA States/other third parties. These cover the areas of Financial Services; Nuclear Cooperation; Citizens' Rights; Social Security; Reciprocal Healthcare; Trade, Customs & Tax; Research; Transport; Justice & Home Affairs; Agrifood; Mutual Recognition on Conformity Assessment; Political & Joint Cooperation; Civil Justice; Fisheries; Environment & Animal Welfare; Foreign Policy; and Procurement. See the above hyperlinked document for further details.

Brexit Update: Government to bring forward European Union (Withdrawal Agreement) Bill in early June


You will no doubt have seen on the news that the Prime Minister has said that she will be bringing forward the European Union (Withdrawal Agreement) Bill during the first week of June, despite having previously lost a meaningful vote to ratify the Brexit withdrawal agreement on three occasions. (A "meaningful vote" is required under the terms of Section 13 of the European Union (Withdrawal) Act 2018, which obliges the government to bring forward an amendable parliamentary motion at the end of the Article 50 negotiations between the government and the European Union in order to ratify the Brexit withdrawal agreement.)

This is effectively a "last throw of the dice" by the PM, setting the wheels in motion for the necessary parliamentary stages to enact Brexit before MPs' summer recess. It is a high-risk strategy, and indicates that we are reaching the "end game" stage, given that the ongoing Conservative-Labour party talks appear to be going nowhere. The timing for bringing forward the proposed Bill is significant, coming as it does a week after the European elections. Presumably Mrs May is working on the premise that a very poor showing by the Conservative Party in the European elections would focus the minds of Conservative MPs and bring them into line to vote through the Bill, despite their misgivings on the terms of the Withdrawal Agreement.

According to the BBC's Norman Smith, No 10 is raising the stakes higher still by saying that, if Mrs May's deal is defeated, then the only options left on the table are either "No Deal" or "Revoke Article 50". Given that there is a majority in the House of Commons opposed to a No Deal outcome (as evidenced by the swift passage of the European Union (Withdrawal) (No. 5) Act 2019 last month – see below for further details on this) the prospect of Article 50 being revoked would obviously be anathema to the Brexiteers in the Conservative Party, and is intended to bring them into line and to vote through the Bill, despite the virtual breakdown in the parliamentary whipping process that there has been on Brexit-related matters.

Labour NEC confirms backing for second referendum in specific circumstances


According to media sources, Labour's ruling national executive committee has, in the past hour, agreed that its manifesto for the European elections will back a second Brexit referendum, but only in specific circumstances.

After a crunch meeting lasting almost five hours, the party issued a statement to say the manifesto had been agreed. "The NEC agreed the manifesto which will be fully in line with Labour's existing policy; to support Labour's alternative plan and, if we can't get the necessary changes to the government's deal, or a general election, to back the option of a public vote," a Labour source said.

House of Lords committee calls for urgent overhaul of parliamentary scrutiny of international treaties


Earlier today, the House of Lords Constitution Committee published a report calling for urgent reform to strengthen Parliament's scrutiny of treaties. The Committee described the current parliamentary processes of treaty scrutiny as "limited, anachronistic and inadequate", and called for the establishment of a new treaty scrutiny committee. While recognising that treaty-making is a function of the Government, the Committee said that Parliament needed to be able to hold the Government to account for its treaty actions.

The Chair of the Committee, Baroness Taylor, said: "Parliament needs more power and better structures to hold the Government to account for its treaty actions. … This reform is required irrespective of Brexit; however there is a pressing need for change as it is likely that the UK's departure from the European Union will lead to the Government negotiating more and broader treaties than in the past."

Negotiating Brexit - excellent report from the Institute for Government


Earlier this week the Institute for Government (IfG) – the independent and highly-regarded think-tank whose remit is to encourage effective government – issued a coruscating report on the UK's performance so far in negotiating Brexit, as well as spelling out how the UK needs to completely rethink its negotiating strategy when it comes to the second stage of Brexit negotiations (on the UK's long-term relationship with the EU, in terms of trade and security co-operation) which will kick off once the UK leaves the EU.

Other than an honourable exception on negotiating the UK's exit from Euratom (the European Atomic Energy Community) - where the UK decided on its objectives early on, and engaged with specifics – the UK is effectively awarded a score of "nul points" by the IfG in terms of its negotiating performance so far. The reports highlights how the "Prime Minister marginalised those she thought were giving inconvenient advice", while blurring the lines of communication between the various government departments in terms of who was actually leading the day-to-day negotiations. It adds that the UK's "attempts to divide and conquer [the EU27] were not helped by tone deaf interventions by ministers and senior politicians designed to appeal to domestic audiences.".

The forensically-argued report will make salutary reading for Government as it prepares for the next stage of negotiations – particularly as the negotiation of the UK's future long-term relationship with the EU will involve much tougher issues than negotiating the terms of its withdrawal from the EU. It warns that the UK risks stumbling into the next phase of negotiations with the EU without a plan, putting the country at an unnecessary disadvantage.

The report concludes that the next round will be shaped by the Government's decision on what type of relationship with the EU the UK is seeking. It recommends that, before negotiations begin, the Government should agree, and publish, its ambition for the future relationship, without drawing absolute red lines.



Catherine Clarke

Catherine Clarke
Senior knowledge lawyer

T:  +44 20 7809 2106 M:  +44 78 0153 1606 Email Catherine | Vcard Office:  London

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