Just some quick thoughts on the Brexit from yesterday

  • The UK-EU Custom Offer for the entire UK. Source: RTE
    • Won’t be done prior to the April 2019 deadline, legal issue as not allowed under Art50.
    • Still no knowledge if it would tie either side to each other a-la Turkey-EU Custom Union
    • No knowledge on compliance.
    • Does solve the N. Ireland issue as no fragmentation of UK.
      • For the short-term at least

Analysis: It’s a repackaged offer from last week (see @SamuelMarcLowe; senior researcher on Centre of European Reform) that at face value would be rejected by the Conservative. The European Research Group (ERG; a committee in the Conservative party) will reject anything that doesn’t allow a full trade agreement with third-parties. That would almost certainly require a check at the Irish border, unless there is a large concession by the EU.

The Chequers Affair

Coming into the weekend I was ready to write a review of the agreement that was struck by the Cabinet at Chequers, but given the events in last couple of days, all my work has been thrown out of the window. While there are suggestions that there will be a leadership challenge by the Brexiteers and ERG against Mrs. May, I have gone through many rewrites with the constantly changing news, I have currently just given up on trying to write something that is fully up to date and just express my views on the agreement at Chequers, which was the original plan; I can then at the end express why I believe that some members have resigned over the issue.

The first major issue that arises is the free trade area of goods, which is essentially a pillar for a free trade agreement (FTA) with the EU. While a FTA for goods is possible in theory, as there are certain goods that are allowed in and out, but for across the board? That just looks like cherry picking one section of the single market, which has already been vetoed by the EU. While it is possible in theory, I do not think that the EU would agree to this, without forcing further concessions into the single market. Nor does it make sense that this will avoid friction at the border as the document later goes on to end free movement. How does one plan to uphold the common travel area and not allow free movement of people; unless there is a divide at sea, given that a physical border in Ireland is a no go? While that is plausible, it would create an internal border inside the United Kingdom; which will not be acceptable to the Unionists in Northern Ireland nor would it be acceptable for the hard-line Brexiteers.

Looking at the next point about the common rulebook for all goods including agri-food seems to out of place of the comments made by the Prime Minister as she said that we are leaving the common agriculture policy; while the policy is complicated, what is meant by this phrase is not well explained. While we are expecting a white paper on this, seeing language like this would unlikely garner support from the entire Conservative Party, which would require the Government to look across the benches to the opposition. An odd situation, but let us be honest; nothing has been conventional in this process.

This unconventional process an been seen in the proposal for what can only be described as fluff. The notion that either side wishes to have less open economies (or promote closed economies) is just laughable, regardless of which side of the argument you fall on. The differences lie in what should be freely traded, which seems to be as much as possible. The problem that this position relies on almost full co-operation between the two sides, but why would EU agree to bind itself to the UK’s decision or take note of the UK’s position; as they have no requirement to place UK interests over its own members. This also seems to hinder both sides when re-evaluating what deal they wish to strike with other nations, as for a deal to be made with any third-country, each side would be restricted. While for the alignment argument this makes sense, but then what are the benefits to leaving the EU while fully aligning? It doesn’t make any sense. Why create more hassle? By just creating a new system to fulfil the results of an advisory referendum is just nonsense. It would more sense to ignore the referendum or go the whole nine yards, the middle ground doesn’t make anyone happy, nor does it help anyone. What is the gain? While one may point to the potential gains to services, it does remove any chance to negotiate on goods as a carrot to a third country. While possible, would it not be better to have a veto in the EU, when it came to new trade agreements and new policy proposals? I would think so.

The legal framework in the application and interpretation of the UK-EU agreement, is not helpful. Well in the form that it has been described at least. The UK has paid due concern to EU case law (when applying EU law) and to continue this is not a differing system. The concern of disputes is more interesting and thus concerning; with the lack of detail.  I’m going to speculate that an EFTA court solution is what will arise from this, but I do not see the EFTA members being happy if the actual EFTA court is used; thus, a new separate UK-EU court of arbitration committee being set-up. However, with such little information: we will have to wait and see.

The final item about the new facilitated customs arrangement, makes little sense to me. While it works for the island of Great Britain, the tariff policy for Northern Ireland vs the Republic of Ireland seems to be open to abuse. If I can take goods across the border without checks, why wouldn’t I choose the cheapest one and then just cross the border. While one can mitigate this by checking shops and more monitoring systems, it would be a costly solution, while relying on the trust system. We should also be asking what percentage of failures (goods not checked, that has the wrong tariff applied) is acceptable, if any? This all relies on the EU accepting this agreement as well. At the moment, I cannot see this being accepted by the EU. With the backstop, there may be no actual cliff-edge if the negotiations take too long; but there is no backstop for a rejection of the proposal.

The resignation of the two prominent Brexiteers in the cabinet are not a tandem to bring down Mrs May, though Mr Johnson’s resignation is a ploy for power in the future. David Davis has clearly resigned for the change of style in negotiations by Mrs May. Mrs May has decided to try and bypass the EU infrastructure with direct talks with the head of States. I doubt that this will work, given the Commission leading the negotiations for the Member States and having  EU law on their side with the notion subsidiarity when dealing with future of the Union. With this plan, Mr Davis’s role in leading the Department for Exiting the European Union and being the head negotiator is no longer the case. Instead of becoming a middleman like his successor, Dominic Raab. His plan to to leave the department is to ensure that the leadership of the department fully believes in the plan, instead of someone just following a plan. Personally, I find this quite a sensible move by Mr Davis. The headline resignation was, and still is, Mr Johnson’s sudden change of heart. While I believe that Mr Johnson shares some of my criticism (if not all), there is a clear political motivation for Mr Johnson to distance himself from the plan. In doing so, he won’t alienate himself from the Tory base and can criticise the plan without having to come up with a solid plan himself. It would be a shrewd move, if wasn’t blatantly obvious to anyone who has spent more than ten minutes listening to all the regular political commentators.

While it is true that this is a negotiation and thus the proposal is not final. What lies ahead for both sides, be it the argument or UK/EU, there is a lot more to be done with far too little time. With ongoing pantomime in Parliament, I would be ready to expect the unexpected.

Entry 14

Today was a tripleheader of Equity, Public and Land Law. However, more important than all three, Tottenham played Real Madrid at the Santiago Bernabeu, so as an avid Spurs fan that has eaten up into my time to write this blog post.

In today’ tutorial for Equity and trusts, we continued to examine trusts and the purposes for today’s class we spent our day looking at discretionary trusts. What I took from the class (which is relevant to all the areas of law) is the importance of wording when describing what is happening in the trust, i.e. is this a trust or a power of appointment. While in writing them we care about the words, this might not have been the case for the settler, so we must also consider the importance of the meaning (or intent) of the settler. While the latter might not always be upheld, especially if the wording is loose, it should not just be disregarded.  That is to say, the use of precatory words do not create trusts, but nor do they prevent trusts.

Then I had my lecture in public law. We have continued to look at the result of cases regarding common law to create retrospective laws, which seems to be fine ( the example of marital rape) but don’t seem okay when Parliament does so (the Burmah Oil example). I do not think that is a problem in a legal sense for Parliament to have retrospective laws, Parliament is sovereign. It can do what it wants. Putting on my political scientist hat for a few minutes; they won’t do whatever pleases them or suits them due to game theory. While Parliament as an institution can do whatever it wants, MPs cannot. They are bound to their electorate and baring a civil war, or a revolution will be at the will of the people (precisely not what the Daily Mail refers to, I jest). Also, Parliament has to deal with foreign governments, and if they wish to conduct business with them over time (repetitive game), then they have little interest to defect to changing what they agreed to in the past (bit more commentary on Brexit: Britain will give money to the EU decades after leaving (it’s the pensions that have already been agreed. Don’t like it? Tough, we decided to it and if we want to prove to others that we are going to keep our word when coming to future trade deals. No project fear, just bleeding reality).

Gone slightly off topic…

Finally, we had our first tutorial in land law. I must say that the change in preparations really paid off. While I did not contribute to the class, I was able to stay on top of what everyone saying and understand points being raised. And as always, Land Law is about being anal, though not seemingly in the case eofManchester Aiport Plc v Dutton. While I would like to go on. I have far surpassed my word limit if you want to know more, just shoot me a message.

PS. Hugo Lloris, what a man!

Entry 12

Thursday is a real slog, four hours straight of teaching and then a two break followed by two hours of lecture. As I had bit h an EU law tutorial and lecture, I will put them together, followed by land law and finally a brief bit on contract law.

The first EU tutorial was actually great by us diving straight into the content. We examined the nature of the various institutions within the EU and what each institution’s interests are. This helps us looked at the next section of the class, which is the concept of institutional balance and does this lead to a democratic deficit? Just to clarify, an institutional balance does not equate to each institute having the same or equal power. Instead, it is about making sure that each institution is staying within its powers provided by the various treaties and not encroaching on another institution’s powers. If there is overlap (or claim of encroachment), then it is up to the European Court of Justice to determine who can use the power. This links to the democratic deficit as there is lack of participation in the elections of the European Parliamentary Elections and there is no direct say for the people in other areas. In class, some colleagues were okay with this, due to it being a free choice and the supranational state gets it powers from elected parliaments across the continent (it’s not direct democracy). I, however, vehemently disagree and think that if you want to improve participation, then compulsory voting should be enforced. If everyone is forced to vote, then they will have to educate themselves to make an informed decision, nor can people complain about the lack of representation (compulsory voting should also be in the national elections). The lecture was about Brexit, and this is in the news, I would just say as before; treaties matter (I am sure that this will come up again).

Land law can be summed down to two questions. What is the nature of the rights given in regards to the land? Secondly, how was the right created? (What is the formality?) This is to say that process of creating a proprietary right, helps determine whether or not it is a right proprietary means (or if it is one in the first place). I know a tautology of sorts (How can we determine the first question without the second? However, it is important to note that rights are limited to what they can be, and thus the process is vital. Why? Certainty. The more certainty there is, the easier it is to complete a transaction. It’s business and essential business in the UK in the recent history of the last 100 years given the rise of property owners. There are a few exceptions to this, but this is more for a practical sense for government departments not be swamped. The only issue for the exceptions is that those who are most likely to be affected, do not know. So there should be a concerted effort to improve knowledge about this. Maybe a topic in PSHE at school?

Finally, I had an introductory tutorial in contract law. The problem was that I did not read the handouts properly and proceeded to answer the questions for next class… Well, at least the effort will not go to waste.