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.
Continue reading The EU Withdrawal Agreement – how and why the UK government agreed the worst of all possible deals
The Divisional Court has today (3 November 2016) determined that the decision to issue the Article 50 notice that will trigger Brexit must be made by Parliament and not the government – R (Miller) v Secretary of State for Exiting the EU.
Before saying anything else, there are three initial observations that should be made about this.
The first is that it is just the outcome of a preliminary skirmish. The decisive legal battle will be fought in the Supreme Court next month. The government has already announced its intention to appeal the case, and there is no question that it will get permission to do so. In spite of the significant media interest in today’s judgment, nothing has been finally determined.
The second thing is that the judgment is, nonetheless, hugely important. The Divisional Court was as strongly constituted as it could have been – the Lord Chief Justice, Master of the Rolls, and Lord Justice Sales. In a lucid and robust decision, the judges were unanimous and expressed no reservations about their conclusion or the reasoning that led them to it. Their judgment effectively changes the terms of the debate about when and how Brexit will happen. It determines the context in which the Supreme Court case will be heard.
The third point is that the judgment should come as no surprise. A number of lawyers who were willing to express a clear opinion (myself included) thought that the claimants in Miller had much the better of the legal argument, for the reasons I set out in an earlier post ‘Why the UK Parliament Still Needs to Vote for (or against) Brexit‘. Naturally this was not a unanimous view, and the Supreme Court could yet go the other way. But the arguments against the government are very powerful, as the judgment in Miller fully demonstrates.
Subject to these observations, what did the Court decide, and what does it mean?
Continue reading A Bad Day for a Hard Brexit – the Meaning and Effect of the Article 50 Judgment