The EU Withdrawal Agreement – how and why the UK government agreed the worst of all possible deals

The Withdrawal Agreement in which the UK has negotiated the terms of its exit from the EU is, according to Angela Merkel, a ‘diplomatic piece of art’. And so it looks from the perspective of most European capitals, given how favourable it is to the long-term interests of the EU. Viewed from the UK, however, it represents one of the most abject failures of statecraft in modern British history. This is the story of how and why it got to be so bad that it has achieved the remarkable feat of uniting both ends of the political spectrum against it.

As is now widely acknowledged across political party lines at Westminster, the EU Withdrawal Agreement, in the form that was endorsed by the Council of Ministers on 25 November 2018, amounts to a strikingly bad deal for the UK.

Less coherent than any other available option, it leaves all of the fundamental issues as to the future unresolved, while committing the UK in international law to processes and outcomes that ought to be unacceptable to any democratic nation state. It concedes most of the UK’s original bargaining positions in return for no permanent benefit, and creates a fatally weak basis for negotiations on a future trade deal. In consequence, its adverse political and economic effects are likely to be worse in the long term than the disruption of a ‘no deal’ Brexit would be in the short term.

Moreover, these defects are not the product of the usual give-and-take of negotiation – a tolerable compromise, acceptable to everyone because it fully satisfies no-one. Instead they are the outcome of a series of avoidable decisions, the most important of them made in No. 10 Downing Street by the Prime Minister personally. As a result, the Agreement represents one of the most abject failures of statecraft in modern British history.

The things that are wrong with this deal can be summarised in four main points. But to understand them, and the Agreement itself, it is important to describe briefly how the UK got itself into this mess.

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Evaluating Regulation in the Brexit Debate

Placing a value on the UK’s regulatory flexibility after Brexit should be key to informing the policy choices that need to be made by Parliament. But the government has adopted conflicting positions. It has told one story for general consumption and another in the Brexit debate. Which is right? 

What is the value to the UK economy of the ability to set its own rules after Brexit? How much could be saved in costs to British business if unnecessary regulations were repealed and bad regulations replaced by better ones?

These questions are fundamental to the debate about what type of Brexit the UK should be working towards – or, for some people, whether it should still be working towards Brexit at all – but it is hard to find any convincing answer to them. The UK government appears to have no coherent position on the issue.

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Thoughts on Amenability to Judicial Review

The Court of Appeal in Holmcroft v KPMG upheld the Divisional Court’s judgment that KPMG was not amenable to judicial review on all the facts of the case, but differed sharply in its reasons for reaching that conclusion. Was its rationale any more convincing than that of the first instance court? Not really.

Two years ago, I wrote a piece about the judgment of the Divisional Court in the case of Holmcroft Properties v KPMGCan a Firm of Accountants be a Public Body?

The title question was rhetorical. The answer is yes because, regardless of the source of its powers, a body can be ‘public’ – and therefore capable of being judicially reviewed – to the extent that it exercises a public function. There is no special exception for big firms of accountants, or anyone else.

However, this obviously begs a further question. When, and in what circumstances, does someone exercise a public function?

On this I was critical of the Divisional Court – not so much because of the outcome on the particular facts of Holmcroft, but because of the inadequacy of the reasoning by which the court got there. Indeed the whole of the law in this area – the law relating to a body’s ‘amenability’ to judicial review’ – is inadequate at many levels.

Holmcroft was appealed, and we now have the decision of the Court of Appeal, in which the leading judgment was delivered by Lady Justice Arden, her last before taking her seat (as Lady Arden) in the Supreme Court. Might this resolve some of the problems with the first instance judgment?

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The UK Productivity Puzzle, the English Regions and the Law

(Part 2 of 2)  The regulation of broadcast media considered in the last post to this blog draws attention to the real structural problems in the government and economy of the UK, and in particular of England. But it is merely a symptom of a deeper malaise, a malaise which both was a cause of Brexit and requires urgent remedial treatment if the UK is to survive as a major world economy after its break with the EU. If Parliament used the legislative tools at its disposal, there is no reason why the problem cannot be addressed.

The last posting to this blog considered how the UK broadcast media landscape, and the way in which it is regulated, reveals the serious structural defects in how the UK, and in particular England, are governed (London Calling – The BBC, Channel 4, and the Problem of the English Regions).

This, however, is not unique to broadcasting. It is merely symptomatic of a much deeper problem which now has significant implications for the economic as well as political and constitutional health of the nation.

It also entirely capable of being addressed, if Parliament used the legislative powers that are available to it, and that already have their template – however inadequately it has been designed and is currently enforced – under the Communications Act 2003.

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London Calling – the BBC, Channel 4 and the Problem of the English Regions

(Part 1 of 2) The regulatory framework for public service television broadcasters, such as the BBC and Channel 4, contains a unique provision which requires them to produce part of their programming outside of London. How this works, how it is policed by Ofcom, and how the broadcasters respond to it, provide an insight into the serious structural problems with the government and economy of the UK, in particular the English regions.  

Every year, the UK media regulator, Ofcom, publishes a set of data which receives far less attention than it deserves. This is the annual ‘Made outside of London‘ register, a list of television programmes produced outside the capital by, or on behalf of, the UK’s four public service broadcasters (the PSBs – BBC, ITV3, Channel 4 and Channel 5).

Two things are surprising about this document. The first is that it exists at all. Regulatory bodies typically have no interest in whether, or to what extent, their regulated sectors contribute to economic activity in the UK’s constituent nations and regions. The second (which explains the first) is that Ofcom compiles the data to monitor compliance with duties imposed by Parliament. Each PSB is under a legal obligation to ensure that part of its programming is produced somewhere other than London.

This represents an exceptional, in fact unique, example of the law being used to require a measure of decentralisation in a major sector of the UK economy.

The data would merit scrutiny if only because they were so unusual. On examination, it turns out that they also offer a stark illustration of the underlying structural defects in the government and economy of England.

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Anarchy in the UK

In the case of Buick, the Northern Ireland High Court explored whether government departments can continue to operate as normal in the absence of ministers due to the collapse of the devolved administration in Belfast. It reached a striking conclusion which, if upheld on appeal, would have significant constitutional and practical implications. It was mistaken.

The United Kingdom is currently engaged in an experiment in political anarchism. For over a year, it has been exploring what happens when one part of the country, in this case Northern Ireland, is required to carry on without an elected government.

The experiment arose inadvertently, and on the surface very little has changed. Belfast 2018 is not the anarcho-syndicalist utopia of Barcelona 1936, nor has it suddenly lapsed into a Hobbesian state of nature. But the very reason why hardly anything appears to be different – the continuity that is provided by the de facto technocratic government of the Northern Ireland Civil Service – gives rise to constitutional questions of real importance. The most fundamental question is this: can day-to-day government be carried on by civil servants without the need for direction or control by politicians; if so, subject to what conditions and within what parameters?

It was only a matter of time before this question fell to be considered in a court of law. And it has been, in the recent case of Buick [2018] NIQB 43, in which the High Court was asked to determine whether Northern Ireland’s ten government departments are able to carry on without ministers in charge. It came to a surprising and unintentionally radical conclusion.

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Why the Crown (sometimes) still matters

In R (Black) v Secretary of State for Justice, the Supreme Court was required to consider when Acts of Parliament are binding on the Crown. It found that the existing law was inconsistent and unsatisfactory. It then made things worse.

The UK Supreme Court’s year in 2017 was framed by two constitutional cases rooted in the medieval history of the British monarchy.

At the beginning of the year, in R (Miller) v Secretary of State for Exiting the EU, the court was concerned with what remains, in the early Twenty-First Century, of the scope of the royal prerogative. And at the year’s end, in R (Black) v Secretary of State for Justice, it had to consider the circumstances in which a contemporary Act of Parliament is binding on the Crown.

The first of these cases, which was related to the legal mechanism for delivering Brexit, achieved wide publicity. The second did not. But the judgment in Black is revealing as to the state of the UK constitution as it enters 2018, and of practical application in a wide range of cases. It tells us something about why the Crown still matters in UK law.

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