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.

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 20

Alright, I’m still a bit high from yesterday’s win. But can you really blame me? Spent the whole day with a massive grin on my face (which is quite usual for me come to think about it or see any of my photos…). Today I was back into the thick of things with EU Law tutorial& lecture, with Land law in between.I’ll quickly start with yesterday, which was a double whammy of Tort and Equity.

Yesterday saw the beginning of my new process of using note cards (see attached picture). I actually found this a magnificent way to get cases down in lecture as well as you for tutorial preparation. As each case is on a small note card, it forces me to just stick to the main details of the case and the decisions by the judge. All in all, this is beneficial for keeping things in order as well being used for revision in the future as I am making flashcards as we go on. I definitely prefer this to mind maps as I can always just write a new card if I make too many errors or find that I want to change things on the card. Maybe that’s part of the perfectionist inside of me. Don’t like to see lots of crossed out things from a resource I wish to learn from. (though if you were to see my A4 notes in lecture, boy or boy is it messy)

This was after an Equity Lecture where I kept on with my business and where we explored formalities. I’m going, being honest with the fact that I’m still grappling with the concept of formalities and probably to spend a bit of time over the weekend re-reading the cases and the and the textbook. The one major thing that I did take away from the issue of formalities is that by just doing the paperwork correctly; saves everyone a heck of a time and that being clear and precise is worth its weight in gold.

Today I started my day pinching myself, to check that last night wasn’t a dream…I mean…

Today started with my EU tutorial where we spent the majority of our time discussing the mechanics of Article 50. The triggering, the process of how it works and the consequences of the Article. Hopefully, I want to go into a full Brexit rant again but sometimes it just really annoying to see how people don’t understand one of the most crucial issues of our time (in Britain). In class, we talked about the vagueness of the Article and with such broad scope how this is detrimental in some ways; no one expected it to be triggered thus not fleshed out. In other ways, positive; I’ll say that it is positive because countries may leave for different reasons and this having a strict set of things that one must negotiate about, might just be a waste of time. We also looked at the reasoning of why the British government wants to start negotiating the trade deal as soon as possible and why the EU is using its’ hand to wait longer (as there is that two year limit in the treaty). This led onto the why there may need to be a transition period for non-business reasons but rather simplifying the legal route to a free trade agreement. I then brought up the fact the Article doesn’t mention us withdrawing our letter of notifying us leaving (hence saying lol jk Yurop. We’re staying fam, it was only a prank!).  Basically, it’ll probably go to the ECJ where the UK would have to fight to stay in and that the other nations might just want to throw us out. We did also discuss supremacy, but I’ve written quite a bit so far.

Then we had Land law which was just looking at propriety rights and how they transfer depending on the exchange (see section 288/29 of the Land Registration Act 2002). I wish I could say anything more, other than this, but it is a dense topic (quite rightly). Land law is becoming my favourite module, due to it’s adherence to rules to the letter.

I finally had my final lecture of the day, which was a return to EU Law. I don’t know how many times I’m going to have to write this but; THE TREATIES MATTER! Don’t bother criticising EU law until you wrap your head around this concept. It just really helps you put things into perspective when there a decision is made that seems out of place. We spent the majority of the lecture looking at how directives work and the implementations into the domestic courts worked. Essentially directives (not in themselves,  but from the case law resulting from them) give the citizens the power to the government to court over the failure to implement EU law. Why is this important, the common market requires regulation and the best people to regulate the market? The people who gain the most from the market! The consumers. I mean the citizens!

There’s probably more I can say on the topic, but I’ve typed out far more than intended to make up for yesterday (though I wouldn’t change it).

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 10

Today I had my first tutorial in Tort law. As I have already noted about my lecture, there is a massive focus on the number of cases I need to know. While I was able to complete the ominous amount of reading, alas I had not prepared the adequate level of detail (well there wasn’t a standard set for the class or me, but I could do more to participate better in class).  The problem I found, was that my style of learning is not suited for talking in a law tutorial class. I usually do all my readings and make minimal notes and aim for zero (no, not because I am lazy) and then try and answer the questions to the best of ability the next day with no help. Then I go to class, with my answer, jot down what others say and see if this matches up with my notes (or fill in the blanks). Thus today I was unable to remember the details of my final case and while I was able to put in the answer for my notes, if I were to be called upon in class my answer would only ensure the sounds crickets. Know you may think, Hanik, where has this habit helped you in any situation? I’ll tell you. Philosophy (and sometimes Politics) where I can use my own intuitions and logic to deduce answers and reasoning. Then when I cannot, I go back write up some more notes and finally when exam season rolls around, I write proper notes based on what I was missing. The problem is that there are way too many cases for me to remember, so it looks as though I will have to adopt a new method. So sorry to my course mates, for not being useful in class.

 

Then I had my fourth public law lecture. And it was as usual quite enjoyable. I was not able to sit back and just act as though I knew everything. We had a quick look at the old South African constitutional crisis to see the importance of protecting entrenched clauses in the constitution. Before moving onto the powers of Parliament and seeing if Parliament could change the law retrospectively (the answer is yes it can, FYI) and what examples there are. So we looked at what Parliament did over in the post-war era to protect itself from the damages entailed during the war. It led to the question, should we be concerned about our actions now, if they are to be deemed illegally prosecutable in the future. And how would you do so? How could I plan to act, if I do not know what I was legally allowed to do so? In the US, this is not an issue, as the Constitution settles the matter (you can’t), but in the UK, we do not have a codified Constitution. What the effects on Common Law, which is set on precedent? I would like to be able to answer the questions, but we didn’t finish the planned lecture and will go onto to it next time. So while I wait, what are your thoughts?

Entry 5

Today was the first day of Criminal law, the one that we (or at least I) first associated with the law. I am going to give some Kudos to my old housemate Nathan for pointing out the amount of Latin and saying the same thing as my lecturer, just two years prior. Lawyers like Latin [to help justify the fees]. Actus Reus and Mens Rea were brought up several times in today’s lecture. Today’s lecture was more of a general overview of the course, and we didn’t really get into any substantive topics, but I’ll quickly mention a thought on autonomous that I spoke to my old lecturer Tom Cornford about. The question is, are we really independent? We can not control our thoughts, they happen to manifest themselves in our own minds. I have yet to say to myself, thought and then bam! New thought. Maybe I’m missing out on something. The reason I bring up this idea is the notion of involuntary manslaughter. As we are never in full control, can we ever be said to be in control of our own actions? Dr Cornford answered my question succinctly: Try and be smart in court and the judge will probably be harsher towards you. The answer to my question is quite obvious then; it might not be full autonomy, but this does not mean that we are totally incapacitated to make decisions to some degree.

I also had my second lecture in public law. Today we focused on parliamentary sovereignty (in the British sense). It was engaging to see the view of what I have always considered a political concept from a legal perspective. Going through the Diceyan orthodoxy for me was what I was taught in political science. Parliament is sovereign. Nothing is above it. But why? There is nothing to cement this (though there is a case from 1707, the act of the Union), essentially in legal terms parliament is sovereign because it is. Yes, a tautology, but there is no legal source of power. We could change that through a revolution, but as there is no legal basis, we cannot change it through legal means. This may make you think, what can parliament not do? Essentially, it can do whatever it wants. In class, we were asked can parliament bind itself? Well, the lasting Diceyian view is no. This troubles me as the house can say that I am slave, vote for it and pass by a majority of 1. And thus I am a slave.  Some fundamental rights should be away from the political whim of parliament, let alone how do we deal with it having power. While I am sure that any government will not do such a thing if it has no intention to use its power this way, then why give it the authority in the first place? Maybe it’s time for a political revolution on rights?

Entry 4

It started off with the public law a lecture where we had an excellent introduction into constitutions and what the purpose of constitutions are for regarding a democratic society. Perfect for me, as I have not only I just completed my master’s in Democracy and Comparative Politics but spent my time in a module called Democracy and Constitutional Design. While I could have joined in the conversation, I decided to listen to what others had to say as I have already spent an enormous amount of time discussing this issue. Heck, I still use the definition of democracy that I produced for Anthony King in my first year at Essex. So, while I don’t consider myself an authoritative person on the subject, I do believe that I am well versed on the topic. And honestly, I’ll have to bring up some of my distress of people introducing normative values into the definition of democracy during the tutorial. Such as, Democracy is only associated with a good thing or even on the opposite spectrum where someone said that it was okay for a society to agree that giving up on fundamental rights by referendum was fine. It’s more nuanced than that! To quickly illustrate the point, I struggle to believe that in a society full of free people, that they would agree to allow a person to sell themselves into slavery forever. While I would love to continue this point, I have a self-restricted word limit, and we can continue this in the comments.

I then had my second lecture on European law, and I must say it’s growing on me (subject wise). Today was about the importance of the Treatises, the procedure one must follow and just to make sure: the Treaties are bloody important. While I had never heard of any this before, I was quite familiar with the concept thanks to Model UN and having many discussions (read told) about the Rules and procedures when it comes not to just speaking, but also formatting documentation in the UN. For the EU, it’s not the same. However, the concepts are the same. With my background in British politics, the sending of EU law to national parliaments has already been covered, and I knew about the issues regarding the number of readings and the creation legislation from class and even Hardtalk interviews. But just remember, the EU Treaties are crucial in deciding how things work and pan out. Essentially, it’s a fleshing out of game theory when deciding what procedural route to choose.

Finally, I had my class on tort law, and there are a lot of cases to know. Today we began looking a the duty to care and how it came about. This is probably the hardest thing I had relating to anything I had done previously. What I found most interesting from the lecture was the concept of assumed responsibility can cause you to be liable for harm. To me, this seems a bit bizarre, do I not get off if I am trying to be a good Samaritan?The reason I bring this up is that there is mention of the neighbour method in lecture, which is from Christianity (as in love thy neighbour), but this seems to contradict this. Also, that it’s hard for me to get why omission is considered okay if the case of Christianity comes in, as from the Confession (Confiteor ) during mass. Why only the one part?

Alright, I’ve blown my word limit by quite a bit, so that’s it, but feel free to ask for further clarifications as there was much to say, with very little space.