David Davis Points Out Brexit “Breakthrough” Isn’t Binding as Draft European Council Statement Tightens the Screws

Even as the UK press has gone into triumphalism over Theresa May having gotten the European Commission to recommend to the European Council that the UK be allowed to progress to the next phase of negotiations, bits of reality are already intruding on this phase of Brexit delusion.

We’ll limit ourselves to three topics: Foreign Minister being quickly forced into a “this isn’t binding” defense when asked too many tough questions on the BBC; some bad news for the UK in the terse draft European Council statement; and a debate over what the “joint report” really says about Ireland.

David Davis’ Rapid BBC Backpedal on the “Joint Report”

As we indicated in our short note when the Brexit “breakthrough” was announced last Friday, the significance of the agreement on Friday was political. Arlene Foster of the DUP had temporarily withdrawn her coalition’s objections to the draft pact, allowing Jean-Claude Juncker and Michel Barnier to give it a seal of approval and tell the European Council that they thought the UK had made sufficient progress so as to be allowed to proceed to Phase 2 of the negotiations. In other words, what mattered was being (presumably) waived past a big procedural hurdle. As we wrote:

This is not a deal. Nothing is final. This is the UK having presented what is at best a letter of intent on the three issues that the EU had deemed necessary for the UK to have demonstrated “sufficient progress” to be allowed to talk trade.

In fact, even that reading turned out to be generous, since as we will see shortly, the UK and the EU will not discuss a trade pact in the second phase, but merely a transition deal.

The opening section of the so-called Joint Report From the Negotiators of the European Union and the United Kingdom Government on Progress During Phase 1 Negotiations Under Article 50 TEU of the United Kingdom’s Orderly Withdrawal From the European Union has lots of phrases that make clear the document is not binding. For instance:

“This report….records the progress made…”

“…agreement in principle”

“…nothing is agreed until everything is agreed…

“…does not prejudge any adaptations that might be made..”

“…is without prejudice to discussions on the framework of the future relationship..”

When you combine that with the elephant-the-room internal contractions on Ireland (no hard border anywhere, yet the UK is supposedly still leaving the Single Market and the Customs Union), it’s not hard to agree with Richard North when he wrote:

Mrs May has not so much kicked the can down the road as the whole cannery. But it is still there, looming on the horizon, ready to dominate phase two. In so doing, the parties have set themselves up for a fall – apparent commitments that aren’t actually commitments and which cannot be implemented.

Secretary of State for Exiting the European Union David Davis let the “this is not really a deal” cat out of the bag on the Andrew Marr show on BBC yesterday. From the transcript:

DD: No, it is conditional on an outcome. No, I’m afraid that wasn’t quite right. I mean it is conditional. It’s conditional on getting an implementation period, and conditional on a trade outcome.

AM: Let me put this very bluntly –

DD: Before I finish that, I’ve left something out. I said the trade outcome, but also the other elements of the treaty we’ll strike with them which will be security, foreign affairs, and other things.

AM: Okay. So in the unhappy possibility, but it’s a possibility that we get onto the trade side of the negotiations, phase 2 and the EU really, really take us to pieces on that, they don’t give us what we want, they’re not at all helpful when it comes to the City or commerce generally and they really have us over a barrel and we hate it and we say we’re not having any of that. In those circumstances are we committed to the regulatory convergence? Are you committed to paying the money?

DD: Well, no deal is no deal. Now – let me finish, you want the answer, otherwise you’ll be coming back to me later saying you only said this, didn’t say the second half. So number one. No deal means that we won’t be paying the money. Some of these areas –

AM: Okay, so the Chancellor is wrong about that?

DD: That’s – it’s been made clear by Number 10 already, so that’s not actually new. The second element about this is the other areas. Now look, one of the things we have had as a major objective, a major negotiating objective for the British government and we don’t normally lay our red lines out in public, that’s one of the things I’ve always said, is we want to protect the peace process and we also want to protect Ireland from the impact of Brexit for them. So we – you know – this was a statement of intent more than anything else. It was much more a statement of intent than it was a legally enforceable thing.

The government of the Republic of Ireland was not pleased to hear that. From RTÉ (hat tip Carolyn F):

A spokesman for Taoiseach Leo Varadkar has said both Ireland and the EU will be holding the UK to the Phase 1 agreement reached this week.

It comes as Britain’s Brexit minister David Davis described the UK government’s pledge to prevent any return to a hard border with Ireland after Britain leaves the EU as “a statement of intent” rather than a legally binding move…

Speaking on RTÉ’s This Week programme, the Government Chief Whip Joe McHugh said while the UK and the EU explored possible trade deals in the next phase of Brexit talks, the Irish position would be protected by Friday’s agreement which was binding in principle.

Asked how that could be reconciled with Mr Davis’ remarks, Mr McHugh questioned what was the point of the UK signing up to an agreement if it was not going to uphold it.

I assume the Irish officials are being obtuse out of political necessity. Agreements in principle are typically not legally binding yet parties agree to them all the time. They are a forcing device to make sure both sides are on the same page before they invest the considerable time and energy it takes to try to reach a definitive agreement.

Bad News for the UK in Draft European Council Statement

I’ve embedded the draft European Council statement at the end of this post. Unlike the flabby Joint Report, this document has the feel of a well made car, where the doors close with a satisfying “clunk”….or a steel trap snapping shut.

The document has a remarkable number of statements with major implications in a mere two pages. Starting with Item 1:

The European Council…calls on the Union negotiator and the United Kingdom to complete the work on the issues pertaining to the first phase, to consolidate the results obtained thus far…the second phase can only progress as long as all commitments undertaken during the first phase are respected in full and translated faithfully in legal terms as quickly as possible.

Translation: Don’t think we don’t recognize that you’ve still got a ton to do to complete the first phase.

…the European Council notes the proposal put forward by the United Kingdom for a transition period of around two years, and agrees to negotiate a transition period covering the whole of the EU acquis, while the United Kingdom, as a third country, will no longer participate in or nominate or elect members of the EU institutions…All existing Union regulatory, budgetary, supervisory, judiciary and enforcement instruments and structures will also apply.

Translation: As long as you are in our house, you follow our rules. We shouldn’t have to say this but since your ultras like to put their fingers in their ears, this means the ECJ too.

While an agreement on a future relationship can only be finalised and concluded once the United Kingdom has become a third country…

Translation: We won’t negotiate a trade deal in any meaningful detail until you are out of the EU.

Note that this humble blog had identified this as a big stumbling block as soon as the Brexit vote was in. The EU made its position clear then, but as so often happens, no one in an official position in the UK appeared to be listening. From July 1, 2016 post, Brexit: Huge Spanner in the Works – Negotiation of New UK Trade Deals Verboten Till Exit Complete:

But the BBC interview with the EU’s most senior trade official reveals it’s even worse than that. The negotiations of the UK’s departure from the EU and new EU trade arrangements cannot take place in parallel. They must be sequential. No new deal talks with the EU until the exit is completed.

And the EU Trade Commissioner, Cecilia Malmstrom, also said the closest analogue was the negotiations with Canada (and recall that Canada is held out as one of the models for a post-Brexit relationship), took seven years to negotiate and will take an additional one or two years to ratify.

From the BBC (emphasis ours):

The European Union’s top trade official says the UK cannot begin negotiating terms for doing business with the bloc until after it has left.

“First you exit then you negotiate,” Cecilia Malmstrom told BBC Newsnight.

After Brexit, the UK would become a “third country” in EU terms, she said – meaning trade would be carried out based on World Trade Organisation rules until a new deal was complete…

WTO rules restrict the circumstances in which countries discriminate in favour of each other in trade. Otherwise, they must apply to each other the tariffs they apply against the rest of the world….

There is concern in the City that having to do business for years under WTO rules could be disastrous for the UK’s service industries.

As an aside, there is no default to WTO rules. The WTO Director-General made that point several times prior to the Brexit vote. However, I have yet to see anyone explain what needs to happen. If any reader can fill in the blanks, I would be grateful. For instance, from a May 25, 2016 article in the Financial Times:

Britain would face tortuous negotiations to fix the terms of its membership of the World Trade Organisation if it votes to leave the EU, its director-general has warned…

Britain joined the WTO under the auspices of the EU and its terms of membership have been shaped by two decades of negotiations led by Brussels. If Britain voted to leave the EU it would not be allowed to simply “cut and paste” those terms, Mr [Robert] Azevêdo said.

Britain would have to strike a deal on everything from the thousands of tariff lines covering its entire trade portfolio to quotas on agricultural exports, subsidies to British farmers and the access to other markets that banks and other UK services companies now enjoy.

“Pretty much all of the UK’s trade [with the world] would somehow have to be negotiated,” he said. 

And from a June 26 2016 post, quoting the Financial Times:

…“no [World Trade Organisation] member can unilaterally decide what its rights and obligations are”, said Robert Azevêdo, the WTO’s director-general. In other words, unilaterally falling back on WTO rules is not as quick and simple as some have suggested and would still require agreement from the other 161 member countries.

From the comment section of Richard North’s blog:

Catch 22. Legally, the UK can’t negotiate the meat and bones of any trade deal with the EU or anyone else while still a member of the Customs Union, but we need to stay in the Customs Union to avoid falling off a cliff.

Even in the unlikely event that the EU gives us some kind of special dispensation to negotiate trade deals while still in the CU, negotiating trade deals with third parties will be exceptionally difficult if we don’t know what the final deal between the EU and the UK will be.

Back to the European Council’s draft:

It [the European Council]calls on the United Kingdom to provide further clarity on its position on the framework for the future relationship.

Translation: Remember where we told you you need to start drafting legal terms ASAP? No more fudging allowed. And this is the fudge you need to sort out first.

Disagreement on What the Joint Report Says About Ireland

Richard North, who has been bird-dogging the Brexit negotiations, in my view has the right take on the Joint Report’s “commitments” on Ireland: that they are contradictory and some element of it is going to have to be abandoned in the next phase. North has even more to say, but this is the central part of his argument:

…we find the core element in the “Ireland and Northern Ireland” section (paras 42-56), there is a lack of coherence which amount to self-contradiction.

The heart of the section is set out in paras 49-50, the first of the pair asserting that the UK “remains committed to protecting North-South cooperation and to its guarantee of avoiding a hard border”. Any future arrangements, it says, “must be compatible with these overarching requirements”.

As a binding commitment, that immediately falls apart as its execution is subject, inter alia, to the approval of the European Council, the European Parliament and the UK “in accordance with its own procedures” – and can be swept aside by any agreements made in discussions relating to the framework of the future relationship.

Moving on, we are told that the UK’s intention is to achieve these objectives “through the overall EU-UK relationship”. But, unless the UK embraces measures equivalent to the adoption of the full range of Single Market rules, that cannot happen. And since this has already been ruled out by Mrs May, it isn’t going to happen.

Effectively recognising that, para 49 goes on to say that: “Should this not be possible, the United Kingdom will propose specific solutions to address the unique circumstances of the island of Ireland”. But that brings us back into DUP territory, where no agreement is politically tenable. This option is also a non-starter.

Political sociologist Katy Hayward in the Irish Times, by contrast, contends that the section on Ireland is coherent, and provides for three different scenarios:

The first scenario is the one that the UK wishes to see: the future UK/EU trade deal is constructed in such a way as to allow for there to be no hard border either down the Irish Sea or along the Irish Border….

So, if the realisation dawns that an UK/EU free trade agreement cannot guarantee a frictionless border, we move into Scenario 2, in which the UK will “propose specific solutions to address the unique circumstances of the island of Ireland”. There is no explanation of what these solutions might be, but in actual fact everything hinges upon them.

Yves here. I regard this as a handwave, as opposed to a “scenario”. Back to Hayward:

Scenario 3 is one in which there are no “agreed solutions” to this highly complex situation. In which case, the UK has committed to “maintaining full alignment” with: “those rules of the Internal Market and the Customs Union which, now or in the future, support North-South cooperation, the all-island economy and the protection of the 1998 Agreement”.

That’s not how I read Para 50. Even if we ignore that David Davis has said the UK isn’t bound by Joint report, it states that it must be read as a whole. Para 50 says:

In the absence of agreed solutions…the United Kingdom will ensure no new regulatory barriers will develop between Northern Ireland and the rest of the Kingdom.

There’s nothing in this third scenario about the relationship with the Republic of Ireland. All it has committed to there is a weird waffle of a “guarantee of avoiding a hard border”. A “guarantee to avoid” to me reads only as a best effort. And as Richard North pointed out longer form above, other language makes it clear the UK can’t make any real commitments:

..its execution is subject, inter alia, to the approval of the European Council, the European Parliament and the UK “in accordance with its own procedures” – and can be swept aside by any agreements made in discussions relating to the framework of the future relationship.

Even though the UK press is treating the Joint Report as a proof that Brexit can and will be glorious, the UK is running out of runway. Recall when the Eurozone was lurching from last-minute rescue to last-minute rescue in 2010 to 2012, the positive market reaction to the latest patch-up got shorter and shorter. Expect the same to happen here.

If the European Council adds tougher language to the draft statement provided by Donald Tusk, that might lead to a bit of sobering up. But the wake up that really needs to take place is recognizing the implications of the UK not be able to negotiate trade deals in any detail until it is out of the EU.

European Council Brexit Phase 2 Draft
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  1. vlade

    I’ll add another spanner into the works. A number of countries that have trade agreements with the UK are saying “if you give UK a super special deal, we want it to”. I have actually heard that some of the trade agreeements have a most-favoured nation clause, in effect saying “if anyone gets anything better, we get it too” – but I wasn’t able to confirm it one way or another yet.

    The delusion of UK politicians just blow the mind.. I had thought it would be bad, but never ever did I think it would be this bad. This is pretty much lets-make-it-worst-possible bad. This is regime-change bad IMO (and here, be careful for what you wish for..)

    1. Colonel Smithers

      Thank you, Vlade.

      The situation is bad, but most people in the UK have no idea how bad it is, which makes matters and the impending crash out or clock run down worse.

      Work and weather permitting, I am hoping to get some ring side information on Wednesday morning and will relay soon after. I was hoping to last Wednesday afternoon, but work interfered.

      Further to a recent comrades reunion, attended by dad and my godfather, I did wonder about a coup d’état and what Oliver Cromwell would make of the current bunch occupying Westminster. What he said when Colonel Pride evicted parliamentarians still stands.

      See you next year. Back from the tropics in late January.

    2. PlutoniumKun

      I suspect the ‘other countries’ are less interested in threatening EU trade deals than hoping that a weakened and desperate UK would be an easy target for very lobsided bilateral deals.

      There is a vast amount of Indian, Chinese, Gulf, Russian, US and other investments in the UK, most notably in property. I’ve been wondering what their attitude is to Brexit – I’ve seen no evidence of cashing in and leaving. They might be concerned at the impact on their existing investments, but I wonder if instead they see great potential in picking up super cheap opportunities in the midst of a chaotic exit.

      1. Colonel Smithers

        Thank you, PK.

        There’s no evidence, anecdotal or statistical, from estate agents / realtors who I know.

        Price rises are slowing, if not plateauing, and such investors are picking up more.

        I was around Shoreditch, Spitalfields and Aldgate last month and wondered to a friend who works around there about buyers for the buildings going up. He said it was not local money. It’s the same in Buckinghamshire.

        1. PlutoniumKun

          Six months ago I told a Chinese friend, who has properties in London with cash elsewhere, to minimise the amount of sterling she had in savings, put it in euro or Swiss franc instead. She roundly abused me two days ago on the news that sterling had gone up on the news of the deal. I suppose even if I’m right in the long term she won’t forget my terrible financial advice.

          1. Yves Smith Post author

            Tell her a 2-3% movement is noise. If this breakthrough were such a big deal, you’d see sterling up 10% in a month or less. It’s already back from 1.35 to 1.33 today, pretty much where it has been.

      2. vlade

        The problem is twofold, auto-upgrade clauses (if the do exist..) and precedent for any further negotiations. Once something has been made available, it’s much harded to say non/nein in other negotiations.

      3. ChrisPacific

        After some of the recent public statements by Davis I have been wondering if New Zealand should offer to send Stephen Joyce to the UK in exchange for free access to UK markets. He’s a conservative, he was just on the losing side of an election (so he’d probably appreciate the work) and he has developed something of a specialty in fixing massive public sector cock-ups. He’s also a details guy and does his homework.

        Of course, if we did send him over he’d probably do a preliminary analysis and then announce that there were hard decisions that needed to be made, after which May would swiftly gag him before reassuring everyone that they could still have their pony.

  2. makedoanmend

    “I’ll add another spanner into the works. A number of countries that have trade agreements with the UK are saying ‘if you give UK a super special deal, we want it to’.”

    Sounds rather like the recent responses of Scotland, Wales and London wanting the supposed special deal the North was getting with EU regulatory alignment before that all exploded into thin air.

    Seems all too plausible with other “third” countries wanting a sweet deal if the UK was given unique consideration. Another constraint.

      1. PlutoniumKun

        Yes, its pretty clear I think that the agreement is doomed because, quite simply, all the major parties have an entirely different interpretation of what has been agreed.

        The British government clearly thinks that they’ve given some cheap assurances which can be finessed in the next round with technical fixes and a bit of old fashioned strong arming and/or bribing as they march on to glorious Brexit.

        The DUP think they’ve got a guarantee that they won’t be sold out by London at the first opportunity.

        The Irish govenment think they’ve succeeded in sabotaging Brexit and are hoping that the British, over time, will see sense and accept that the best they can achieve is a token statement of independence, while staying in the Customs Union and Common Market.

        The Europeans think they have the British on a lead – or maybe thats not a collar and lead, its a noose.

        Somethings gotta give.

  3. David

    One thing the British have never understood is that, as seen from Brussels, Europe is a politico-philosophical construction, not a geographical area. (I once remember seeing an EU paper with a title something like “Relations between Europe and Norway”). You are either in or you’re out, and if you are out then in theory you might just as well be a small island in the Pacific. In practice it’s a bit more complicated than that, but the essential point remains valid.
    What’s worse is that the British are turning their backs on the “European Construction”, which means the whole set of quasi-religious norms that have been elaborated since the 1950s. This is worth a substantial article in its own right, but for now it’s enough to say that Britain is, in effect, playing the role of the heretic or the apostate, turning its back on the true religion of Europeanism (or at least Brusselsism) and going it alone. Punishment for heretics, of course, has to be severe and uncompromising, not least to stop the spread of heresy.

    1. Colonel Smithers

      Thank you, David.

      I am glad that you mentioned la construction europeenne. About 1990, I remember French friends and cousins using that expression and wondering what the UK would do about Europe. I have never heard someone of UK origin use the phrase, even if pro-EU. As you say, it’s a political and philosophical concept.

      Last week, two Belgian friends, one a serving diplomat and the other a former diplomat, said the UK had turned its back on its European allies in an EU that is a much a defensive as economic alliance. They then talked about Putin’s designs on western Europe. I did wonder what Russia would want from Belgium, but bit my tongue.

      1. PlutoniumKun

        The Russians have already kidnapped Belgians finest French import, Gerard Depardieu, the sneaky b*ards.

        1. Colonel Smithers

          Thank you, PK. :-)

          The Belgian pair thought a deal would be agreed, even at the 11th hour, but only because the alternative, a hard Brexit, is too terrible to contemplate. The current diplomat, who arrived in the summer of 2016 from Paris, repeated what he said a year, at the same birthday drinks, that the UK economy is vulnerable.

          I thought of 1914. Surely, war was too terrible to contemplate, but the big powers still went for / to war.

          With regard to the UK economy’s vulnerability, as Vlade stated above, the delusion of UK politicians just blow the mind. It’s not just UK politicians, but the public and media, too. Saturday morning’s Daily Express featured first on the BBC breakfast news review of the papers. The Express’ political editor, Camilla Tominey, was quoted as saying “the UK has the EU over a barrel”. I would like to know what barrel the lady had consumed when writing that.

          1. Anonymous2

            Thank you Yves. Your usual excellent coverage.

            It is all very complicated and has so many moving parts that I hesitate to comment. It is very difficult to see where it is all going to end. IMHO opinion the political context is all-important. If May is still in office in ten/twelve months time, it will be very difficult for her to sign up to anything with the EU which does not substantially deliver on the Friday text. Yes, the text is a fudge but it is a fudge the EU will put its own interpretation on and demand performance in accordance with that interpretation.

            Of course May may not be PM by then, in which case we are in a different scenario. I suspect an almighty row is going to break out in the Tory party sooner or later – and maybe the wider UK – when it becomes clear that hard decisions are going to have to be made and someone is going to be made very unhappy.

            On the assumption that the EU have a strategy I suspect it is to present the UK with a hard choice: either accept something close to the status quo but on a pay but no say basis; or risk going ‘over the cliff edge’ where many of the planes stop flying, food may have to be rationed and significant numbers of UK firms fold as their ability to export shrinks radically. Civil order could be at risk in these circumstances. Of course if that happens there would be efforts to blame the EU for the consequences but this would be a high risk strategy. Brexit was sold to the electorate as something that would lead to greater prosperity not a return to the conditions of the late 1940s.

            The EU’s message would be : you can accept one of these unpalatable choices or you could stay in the EU. Your choice.

            1. vlade

              You know, it’d be funny if it wasn’t so sad. UK had some viable options when it voted leave (even if economically speaking most of them were worse off than status quo at least medium term), but every (real) step it has taken so far showed it a bit closer to some pretty contradictory and stupid ones. Hey, just last week we got admissions that:
              – there are no in depty analysis, just some fluff
              – cabinet never discussed and settled on a Brexit end-state

              It’s almost like Tories decided to keep the UK in the EU by going the worst possible implementation path, and self-immolate to reverse the referendum result…

              1. PlutoniumKun

                I think the single most astonishing thing to emerge over the past couple of weeks was Hammonds admission that the Cabinet didn’t have one single meeting to discuss what sort of Brexit they wanted.

                Brexiters are basically the dog that caught the car. They really have no clue at all. In many ways its reminiscent of the invasion of Iraq. Lots of crafty scheming to achieve a victory, without the slightest thought of what to do after it.

    2. Meher Baba Fan

      Thanks David. But isnt the political ‘religious’ idea of Europe the very thing Brexiters claim to hate? Thats not geographical

      1. David

        Yes, that’s the point I was trying to make. If you go back to the 1950s, you see that the founding documents are essentially couched in quasi-religious terms (the revival of the Holy Roman Empire and the undoing of the Reformation). But the British never understood this, and thought that “joining Europe” meant signing trade treaties, not signing up to (another French expression) the “finalité”, which incidentally is the French translation of the Greek “telos.” I don’t think it’s an especially Brexit thing: the arguments for staying in have been essentially pragmatic, and equally blind to the tradition of Monnet and Schuman. Indeed, I remember a senior diplomat describing the whole “finalité” argument back in about 1991, as “Euro-froth” which we needed to get rid of.

    3. Petter

      (I once remember seeing an EU paper with a title something like “Relations between Europe and Norway”).

      I’m a Norwegian. That’s how we like it.

  4. David

    One other problem is that, because nobody ever seriously thought that a country would leave the EU (not even the UK) very little imagination was ever devoted to the possibility that this kind of situation might happen. We’ve all been very critical (and rightly so) of the UK approach, but it’s worth adding that the EU response has been to fall back on the kind of desiccated formalism which typifies administrative/Roman law systems, where formal correctness and box-ticking is often an end in itself. The two sides simply do not have the same cultural reference points, and the reciprocal blindness (if you have experience of each system from the inside) is often breathtaking. If this all goes horribly, horribly wrong it will be a situation analogous to the British driving on the left and the EU driving on the right, each assuming the other is going to make a correction.

    1. Colonel Smithers

      Thank you, David.

      You’re right about the formal correctness and box-ticking. I work for a German bank and often wonder about German regulators.

    2. vlade

      The way that EU sees is – and I agree with them – is that the UK knows (or, after 40 years should know) what it’s like – i.e. the difference between roman and common laws. It as UK’s choice to leave, so in EU’s view, it has no legal or moral obligations to make it any easier.

      1. David

        Agreed, but my point was a practical one, even if we can certainly point fingers at the UK. The EU system, because of its origins and nature, finds flexibility very hard, and tends to keep doing the same thing irrespective. If you see this situation as an EU/UK competition, that’s fair enough, but if you see it as a disaster to be averted, the lack of cultural convergence is a worry, even if one side is basically “right”. That won’t be much consolation later. I think also that there’s a difference between understanding how the system works in practice, and understanding the motive forces behind it. The British have actually been reasonably good at the first, but generally lousy at the second.

        1. Marlin

          I think it is impossible to run an empire with 28 different political and cultural traditions, if you don’t follow what you call Roman law system. Using the UK way of doing things would essentially end up as being a system, where the UK, France, Germany, Italy and Spain, maybe Poland, but probably not, would decide things in a smaller group and the less populous countries would only be passengers, not equal stake holders. In the recently linked lecture series on UK prime ministers in prospect magazine, it was revealed, that Gordon Brown essentially worked like that. He traveled to the countries, he deemed relevant and negotiated only with them. In the long run, this style would destroy the EU. Therefore, I don’t think the EU can be very compromising on this without damaging itself, even if there is a cost associated with being so inflexible towards the UK.

          1. Fazal Majid

            Common Law is vastly overrated. What you call flexibility is basically a license for judicial arbitrariness, as shown by the politicization of the US Supreme Court. Even in the US it is not universal. Louisiana’s private law is based on Civil Law.

    3. Joel

      desiccated formalism which typifies administrative/Roman law systems, where formal correctness and box-ticking is often an end in itself.“

      In Latin America I’ve seen this play out all the time with North Americans trying to make use of the system.

      Fundamentally the Canadian and US legal systems try to push litigants and even criminal defendants and prosecutors toward compromise while in Latin America (descended from Spanish statutes and in Mexico the Napoleonic Code) it is more about a rigid application of the rules.

      If you want a settlement you have to seek it out yourself and make damn sure it is codified in iron contracts that have been duly notarized and gone over with a microscope.

      Of course given this scenario many locals will just call in a favor from a friendly judge or magistrate.

  5. EoH

    I think you have it exactly right: nobody knows how this will end. Not even Churchill’s “beginning of the end,” will appear until the post-Brexit trade talks conclude. How well that proceeds will depend, in part, on how well the Brits manage the exit itself, and how many bridges its hard right burns along the way.

    The EU is, however, telegraphing what that end will look like, and it’s pretty obvious. The UK will be on the outside, like the US it longs to be, and will receive no preferences. It will have to reinvent so many laws and regulatory wheels Whitehall will soon look like it’s having a Caterpillar convention.

    Britain should expect nothing less, given a) that it sought so hard and with such rancor to be on the outside; b) how miserably it treats its EU citizen “guests” even now, irrespective of their existing rights; and c) the hundreds of billions, the time and opportunity costs, so few will have inflicted on so many, just so that Britain’s neoliberals could claim to be free.

    Oh, and there will be a hard Irish border on land or at sea, or both. So the Brits, to borrow a phrase from SecDef Mattis, should figuratively stock up on a little ammunition. Or they could turn out May and her baggage, hold a referendum to reverse Brexit, and, if successful, ask for all to be forgiven (and to not pay too much of a re-stocking charge, what with having caused so much chaos to date).

  6. Meher Baba Fan

    What saddens me, and has from the beginning, is the degree of ‘ Spectacle’ this whole thing is. To quote or misquote Guy Debord of the Situationists. You couldnt invent a more Epic Distraction. What about fixing NHS, education,jobs, welfare, libraries; homelessness. No! Lets create an internal coup within a coup!

  7. Carolyn

    Having last night watched the whole of Teresa May’s appearance before the House of Commons yesterday (11/12/17) I feel the need to borrow Vlade’ comment (above):

    …The delusion of UK politicians just blow the mind.. I had thought it would be bad, but never ever did I think it would be this bad. This is pretty much lets-make-it-worst-possible bad. …

    This morning I’m still shaking my head – my mind blown. Is this entire performance wilful ignorance? A psychosis, which despite all the evidence to the contrary, lets Ministers and MPs believe that the UK can walk on water? Or a well-scripted charade? I don’t know… does anyone?

    If readers feel compelled to sadden or confuse themselves then the Prime Minister’s performance / statement to Parliament re Brexit ‘deal’ is here (15:37 approx).

    Re the conflicting statements over the weekend by Davis, Gove et al, David Allen Green (yesterday, FT, behind a pay-wall; register) made insightful observations about the UK’s Brexit shambles that presents itself to the world as ‘serious negotiations’. Here is a flavour:

    None of this bodes well. The UK not only seems to be winging it in respect of international trade deals but ministers seem to be doing nothing to show the world it is sincerely open for business. There is little professionalism, just the antics of an amateur hour… This loss of credibility as a serious negotiating party will have more long-term adverse consequences for the UK’s goals of post-Brexit trade agreements… It is one thing to “play your cards close to your chest” and “not give a running commentary”, but when you do say something you have to be credible. …But these mistakes are not tactics, strategy, rhetoric or spin. They are pratfalls.


    1. Anonymous2

      Thank you Carolyn. In general I cannot steel myself to watch these occasions as they have become mere charades but I am grateful to you for doing so and reporting on it.

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