Archive for the 'Article 50' Category


Article 50 will be invoked next week with the country still totally split over whether it is the right thing to do

Thursday, March 23rd, 2017

The YouGov tracker is not shifting either way

If the Prime Minister was hoping that the ending of the parliamentary approval process for Article 50 would swing opinion more behind the move then she is going to be disappointed.

The latest YouGov tracker came out shortly before the Westminster terror attack and as can be seen in the chart the country is still totally divided on whether it is a good thing or a bad thing. There’s been very little movement since TMay became leader last July.

This is very much sets the scene for the coming months and TMay has two very different audiences to satisfy – those who want out and those who don’t. The the result on June 23rd was very close and the trend in the chart suggests that that is how it remains.

It is only the presence of Corbyn who was ambivalent to BREXIT that gives her some relief. She’s not facing someone who has the ability to exploit the situation.

Does she put the emphasis on curtailing immigration at the expense of the economy or vice versa? There’ll be huge pressures either way.

I love trackers like this because the same question is asked in the same manner every time.

Mike Smithson


Blindsided. Leavers have given the PM a free rein over the Article 50 negotiations and they’ll come to regret it

Sunday, March 19th, 2017

From now on Theresa May can ignore Parliament

Theresa May has striven mightily at every stage to avoid Parliamentary restraint on her Brexit negotiations with the rest of the EU.  She fought in the courts to the bitter end against the principle that the triggering of Article 50 required the prior approval from Parliament.  A White Paper was extracted out of the government in a manner akin to that used by Lord Olivier in Marathon Man.  The White Paper thus extracted was so anodyne that vanilla seemed tangy after reading it.  The Article 50 Bill was pushed through Parliament with every attempt to place any restraint on the way in which the government negotiates Brexit stripped out.  It received Royal Assent on Wednesday in pristine form.  The only commitment that the Government has given is to allow a vote on the final deal on a take-it-or-leave-it basis. Leaving it would mean that Britain left the EU without any deal at all.  So from now on, Theresa May can ignore Parliament.

Throughout all of this process, Theresa May has been aided and abetted by the ardent Leavers and their press supporters.  Judges were vilified for issuing inconvenient judgments, to the point of being described as enemies of the people.  The more hardcore Leavers contemplated the abolition of the House of Lords when it sought to impose conditions on the Article 50 Bill.  They are no doubt surveying the outcome with great satisfaction.

Those Leavers who are regarded on their own side as intellectuals have often stressed how Brexit would restore Parliamentary sovereignty.  Yet they have fought tooth and nail to remove Parliament’s role in the exit process.  These are Augustinian Leavers – Lord give me Parliamentary sovereignty, but not yet.

But they do not seem to realise what they have done.  Because this was never a battle between Leavers and Remainers.  This was, as the courts explained in their judgments in the Article 50 case, a question of where power lay between the Government and Parliament.  The courts concluded that Parliament held the power to initiate the triggering of Article 50.

Throughout the Second World War, Parliament debated war aims, strategy and progress.  Chamberlain fell over just such a debate.  No matter how keen many Leavers are on analogies from the 1940s, even they would struggle to describe Brexit as operating on a higher plane than a global war.  But the Leaver MPs have fallen far below their predecessors, acting as lobby fodder to abdicate their role to the Government.  From now on, the executive has complete control.

It is important to understand what that means.  Between the triggering of Article 50 (A Day) and the day of Brexit (B Day), Theresa May’s government can set whatever policy it thinks fit.  It is far from clear that policy will be one of hard Brexit.  The negotiations have not yet started.  No one yet knows where they are going to finish.  Unless there is no deal at all, the deal will involve compromise on the British side in some ways.  And if the Government compromises in some ways, we can expect the ultra-orthodox Leavers to be outraged.

But they will have no direct outlet for that outrage.  The Government negotiations are not to be controlled by Parliament.  Ministers may be brought before select committees, whose members may huff and puff, but ultimately if a deal is struck it will be put before Parliament on a take-it-or-leave-it basis.  Given the balance of the House of Commons, that deal will be taken.  The ultra-orthodox Leavers have voted for their own impotence.  By B Day, their vision of a Britain with no ties to the EU of any kind might well have been flushed down the pan.

Now imagine that the House of Commons had approached this differently, with a will to ensure that it kept a tight rein on the Government.  Given the small majority of the Government in the House of Commons, a relatively small number of Conservative MPs on either side of the party (perhaps even working in concert) could have secured this.  The Government could then have been required to explain its approach to MPs and win their support for approach on broad policy decisions.  The Government would have been forced to do the hard thinking that David Davis freely admitted before the select committee this week had not yet been undertaken.  It might even have helped build that consensus that the Prime Minister is set to tour the nation to build.

So when the Leaver MPs are betrayed, as in their own minds they most certainly will be, and Brexit is not negotiated to their complete satisfaction, they are going to be unable to express themselves through normal Parliamentary means.  The newspaper front pages will no doubt scream, but they will do so largely impotently.

How will the hardline Leavers continue their campaign?  They’ve just helped to close off the conventional route.  But that frustration will find a vent somehow.  But how?

Alastair Meeks


As we edge towards the enactment of the A50 Bill Nicola has just made Theresa’s task harder

Monday, March 13th, 2017

The political price of hard brexit could be a smaller UK

TMay’s reaction to Sturgeon’s InyRef2 announcement was that the Scottish FM and SNP leader was “playing politics” – a term I generally conclude to mean that what’s been said has been highly effective.

Certainly the suggestions that TMay might defer invoking A50 until the end of the month suggests there’s a need to look again at her strategy and the rhetoric she will deploy when the formal process of extraction is triggered.

On the politics of the Sturgeon move there’s an excellent analysis by the FT’s Janan Ganesh who notes that the short timetable put formard by Sturgeon is one that is “designed to be rejected, giving her, at the very least, a grievance with which to stoke nationalism.” Ganesh goes on

“..She has also earned herself some leverage over the negotiations themselves. Mrs May cannot sign off on hard exit terms without risking the loss of Scotland, three-fifths of whose electorate voted for the EU. Such terms would not just threaten material harm to a small, trading economy, they would communicate England’s hauteur to the smaller nation. But if Mrs May softens her line, she must forgo the right to make external trade deals (to stay in the customs union) or accept free movement (to stay in the single market). The first would be death to her governing vision, the second would be unsurvivable…”

The threat of losing Scotland and thus creating a much smaller UK is a powerful one.

This is going to run.

Mike Smithson


In a move reminiscent of Mrs Thatcher the PM sacks Lord Heseltine for his BREXIT bill rebellion

Wednesday, March 8th, 2017

Making a martyr of Hezza mightn’t be a smart idea

In a key vote in the House of Lords on the Article 50 bill the government was defeated by 366 to 268 on an amendment that would give Parliament a ‘meaningful vote’ on the Brexit deal when that is resolved. Upto 20 CON peers are said to have rebelled and others were encouraged to abstain.

Later Heseltine, who’s now 83 was a leading cabinet minister in the Thatcher era who played a key part in her downfal. After the move against him he issued a statement to the Press Association.

“I have just been told by the Chief Whip in the Lords that No 10 is to sack me from the five jobs with which I have been helping the Government following my vote in the House of Lords earlier today.

This is entirely the right of the Prime Minister and I’m sorry that the expertise which I have put at the Government’s disposal over the last six years has now come to an end.

However, in the last resort, I believe, as I said in the House of Lords, the future of this country is inextricably interwoven with our European friends.

It’s the duty of Parliament to assert its sovereignty in determining the legacy we leave to new generations of young people.”

The danger of this is that Heseltine looks set to be portrayed as the main Tory opponent of TMay’s plans and he’ll be looked to far more for comment and criticism. His actions could also encourage MPs in pro-REMAIN seats to be less keen to support the government as the bill goes back to the Commons.

It is also a reminder that the country remains very split. Last week YouGov had 45% saying the referendum decision was right with 44% saying it was wrong.

Article 50 betting. Following the government’s defeat bookmakers William Hill have lengthened their odds for Article 50 to be triggered by the end of March this year from 1/6 (85% chance) to 1/4 (80% chance) shortened the odds that it will not be from 7/2 (22%) to 11/4 (26%).

Mike Smithson


Mrs. May’s government suffers a second defeat in the Lords on the BREXIT bill

Tuesday, March 7th, 2017


The €60 billion question. The EU exit charge and what it means

Sunday, March 5th, 2017

Picture: The front page of yesterday’s Times newspaper.

Alastair Meeks, who accurately predicted the outcome of the Article 50 case, looks at the looming Brexit divorce settlement.

One of the many points that will be up for discussion as part of Britain leaving the EU is what Britain will pay as part of the divorce settlement, if anything.  Michel Barnier, the EU’s negotiator, is reportedly making a demand for €60 billion his opening gambit.  The UK government, backed up by a House of Lords committee, asserts that it does not need to pay a penny.  Who is right?  And what does this dispute mean?

It is customary in articles such as this to start with an explanation of the argument.  Customary, but entirely wrong, because the looming argument is secondary to the negotiation it will form part of.  Britain is about to start the process of negotiating its exit from the EU.  The two sides are seeking to reach an agreed set of terms that each regards as advantageous as possible.  Those terms may well ultimately bear relatively little resemblance to the pre-existing obligations on both sides, depending on each side’s negotiating priorities and their relative strengths.

The pre-existing position is relevant only because it helps define the position if no agreement is reached and in helping to construct rationales for the arguments that each side wishes to put forward.  The law is only relevant if no agreement is reached.  In those circumstances, the matter would be litigated and an answer would eventually be obtained, but all that would be incidental to the disorderly Brexit that would then be taking place.

So to understand this dispute we can put the intricacies of the law to one side for now.  Let’s concentrate on the more important aspect.  What are the two parties trying to achieve through this argument?

For this we do need a bit of context.  The EU has, as part of its usual activities incurred present liabilities that will fall due in the future.  A good example of this is in my own area of expertise, its future pension commitments.  One of the questions to be settled is what Britain will need to contribute to these costs.

The EU’s starting figure of €60 billion is making a statement.  The FT looked at the possible extent of the liabilities in October 2016 and came up with a figure of €20 billion as a plausible upper estimate.  Newspapers are not known for their understatement of potential problems in reports.  The estimate of €60 billion looks like a typical builder’s “double the first number you think of and add a drink on top” estimate.  The number is no doubt intended as a statement to be heard by the UK government.  The statement is clear: you can expect a very hard time in negotiations, we think our negotiating hand is very strong, we think time is on our side and we are not too concerned if no deal is reached.

The British government’s response might be understood in kind, though slightly more muted.  The British government is not saying that it will not pay a penny, merely that it is not obliged to.

I have to say, however, that the British government’s response so far looks poor on at least three different levels. 

1) The nuance in that response was completely lost in the newspaper headlines.

If Britain does end up paying a substantial sum, which has to be the overwhelming probability if any deal is to be reached, those headlines will be recalled by the public but the implied qualification will not.  The response only works with the public if no deal is to be reached.

2) The government appears to be attempting to play poker using strategies more appropriate to bridge.  By entering into legal arguments about the amount to be paid, it opens up a discussion that the EU negotiators will relish getting into about legal niceties on a point that it very much suits them to discuss.

There are various possible strategies that the British government could follow.  For example, it could describe such a gambit as one that indicated that the EU were negotiating in bad faith, seeking the removal of the negotiators who put forward such a manifestly outrageous demand. Or it could link such a discussion to a related discussion on far more congenial territory (such as ownership of shared EU assets).  In short, it should be bringing in new dimensions into a negotiation that it suits the other negotiating party to treat as one dimensional.

3) The British government’s response looks both morally and legally weak.  If Britain has been part of an organisation that has entered into long term commitments, seeking to wash its hands of any responsibility to pay for them after the fact is not a lofty position to take.

The legal argument is scarcely better.  It apparently turns on the phrasing of Article 50 of the EU Treaty, which reads at the relevant point: “The Treaties [of the EU] shall cease to apply to the State in question from the date of entry into force of the withdrawal agreement or, failing that, two years after the notification.”

The argument floated in the newspapers is that Article 70 of the Vienna Convention means that brings all Britain’s liabilities to an end.  That article provides that:

“Unless the treaty otherwise provides or the parties otherwise agree, the termination of a treaty under its provisions or in accordance with the present Convention:

(a) Releases the parties from any obligation further to perform the treaty”.

But this ignores two points.  First, Article 31 of the Vienna Convention provides:

“A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.”

So the exit provisions in Article 50 need to be given appropriate meaning for handling the withdrawal from a complex multinational treaty of one of its members.  It is implausible that exiting members would be intended to leave without paying up their share of pre-existing commitments.  Its words should be read accordingly.  It is more natural in that context to read Britain’s release from any obligation further to perform the treaty as being restricted to obligations after that date rather than to wipe the slate completely clean.

And secondly, Article 70 does not finish with the words quoted in the newspapers.  It goes on to provide:

“[Unless the treaty otherwise provides or the parties otherwise agree, the termination of a treaty…] (b) Does not affect any right, obligation or legal situation of the parties created through the execution of the treaty prior to its termination.”

This would also seem to give Britain responsibility for its share of future EU liabilities already incurred at a time that Britain was a party to them.

As I said at the outset, the legal argument really isn’t very relevant, unless negotiations break down completely.  But while it’s bad enough playing bridge at a poker table, it’s worse still doing so and then fumbling your cards.

Alastair Meeks


Are we seeing the Tony Blair effect on BREXIT? Those saying LEAVE vote “wrong” now same as those saying “right”

Sunday, February 26th, 2017

The party splits show Corbyn out of line with party voters

I love trackers because the same question is asked in exactly the same way each time the question is put so and as PBers will know I’ve regularly report the above BREXIT finding from YouGov.

The latest movement is all within the margin of error and we need to see further polling before any conclusions can be drawn but it does come out at a key moment politically with the Article 50 Bill going through the Lords.

I just wonder, and I know people will howl at me, if we are seeing the Tony Blair effect. Labour’s most successful leader ever might have a bit of a reputational problem at the moment but he is lucid in a way that none of the current party leaders are.

This was the first time the tracker question has been asked since he made his speech. To another question:

Government managing BREXIT well or badly? (YouGov)
WELL 33% -3
BADLY 46% +3

Mike Smithson


YouGov’s BREXIT tracker is back to exactly where it was just after Theresa May became PM

Saturday, February 18th, 2017

For all the machinations opinion simply hasn’t changed

Above is YouGov’s BREXIT tracker in which it has been regularly asking the same question “In hindsight, do you think Britain was right or wrong to vote to leave the European Union?” over many months.”

As can be seen the most striking feature is the almost total lack of movement. In fact the numbers in the latest poll are exactly the same as they were at the start of August 2016 shortly after TMay became PM.

Both leavers and remainers have hardly changed their opinions.

What I like about trackers is that the same question is put every time in exactly the same manner. If there had been a movement then we would see it.

These are the party splits in the latest polling.

What will change things is when we start to get a sense of what BREXIT is actually going to look like and we won’t know that until after Article 50 is invoked.

Mike Smithson