Brexit and the waning days of the United Kingdom

[Sheilbh]

The traditional British constitutional order is not parliamentary sovereignity, but parliamentary supremacy. There were always other branches of sovereign power, specifically royal prerogatives and the judiciary, which operates not due to a parliamentary act, but derives its power directly from the crown as well.

I'm not sure if there's a difference between the two parliament could always - in theory overrule or abolish those powers. And it's not unique to the UK - but the legislature has absolute sovereignty, the judiciary cannot examine validly passed laws (except under EU law) and the executive can't veto or refuse to implement them (which they wouldn't because the legislature and executive have been fused).

The idea that conflicts between these branches are something specific to the British system is just English exceptionalism. They occur in all European Union member states. Except the rest of the EU - maybe except Hungary and Poland - has come to terms with the postwar international order, which is arguably most evolved in form of the EU. Not that other international treaties do not establish obligations that also bind domestic courts, but obviously not in the same extent. So the loss of power for national parliaments and national courts enforcing international legal orders is something that is just part of the 21st century.

Yes - although when I was at law school we did comparative applications of EU law around this issue and my school was full of Brexit types (wannabe barristers). It was interesting in that they actually really liked the German model. Because the German Constitutional Court has said that it will of course implement European law to the extent that the law does not conflict with German Basic Law (which is not quite what the CJEU has ruled - they've said there is no role for the local courts to assess whether European law is permitted within their constitutional order, which makes sense and is necessary).

I also don't think the EU is just an evolved form of the international order. I think it's sui generis and that's it's genius and great achievement.

Anyway, it is suprising that there even is such a conflict between constituional branches in Britain as at other times, the British claim to have this flexible unwritten constitutional order based as much on statutes as on tradition. One could think that after several decades, a new distribution of power between courts and parliament would become part of that tradition. But in the end, parliament showed it was always supreme and revoked the EEC act.

I thnk this is one of the big misconceptions about the UK constitution and common law in general. Conventions and case law does not make a system more flexible. I think, if anything, it makes it more conservative and slow to evolve because it doesn't have a text or a code to go back to and interpret from (as with the US constitution or the CJEU and the treaties). So yes the US has the stare decisis principle but you can ultimately just go back to the constitution. From a UK perspective you need to convince a court either that your situation is different from the convention/previous case or get to at least the same level in the court system and have a very, very good argument that the convention/previous decision was wrongly decided.

It took 17 years for the issue to come to a head where the government through primary legislation tried to do something that was against EU law and the courts went to the CJEU to get an answer and applied it. That was then applied very happily for the next 30 years - but it came up rarely and never in a big case. The issue was there was part of the UK population who did not accept that new constitutional order - it was never fully settled and perhaps Europe should have been our "constitutional moment" the point at which we codified this.

What is noticable is that the fight against the EU is actually just a fig leaf for the "sovereignists". They are actually authoritarians who want to limit restrictions on the executive - from EU, from the British judiciary, the devolved adminstrations and even the British parliament. Their actions speek for themselves, be it proroguing parliament, questioning court authority, ignoring devolved administrations or rushing through extremely complex acts through parliament. Pretending it is about sovereignity from foreign influence just hides their domestic actions.

Yeah so I think this is true - and why I think the Brexit leaders are best understood as Maggie enthusiasts not imperialists. That's the constitutional order they want to go back to - it's about the 1980s not the 1890s. Although query if they are authoritarians or just majoritarians?

I think the UK system was based on the idea that you have strong government that has a majority (and our electoral system is designed to produce majorities) and once elected they can more ore less do what they want (as long as it was in their manifesto). The constitutional check is the electorate - if you don't like it, vote them out. Montesquieu thought we had checks and balances but we don't in the American sense. Our system is very majoritarian and very based on the idea that the people are the check and balance through elections. There is a reason that the Conservative Lord Chancellor in the 70s, Lord Hailsham said our system was an "elected dictatorship".

What's really interesting is that in the last 20 years especially that's kind of broken down and in part it was because of the coalition and the hung Parliament but even now the government is facing a lot of rebellions. Traditionally, say 1945-1990 there's almost no rebellions, it's super rare. Since the 90s they've become big, routine and increasingly often defeat the government. Even this government has had big rebeillions with lots of new MPs (who are normally most loyalist because they want to become ministers) and studies show after an MP rebels once they are likely to become a serious rebel. It's interesting and positive in my view because it's been a development of parliament asserting itself as a legislature.

Also - for what it's worth I think it's important to distinguish between things Johnson does that actually every government with a big majority does and the stuff that's new and dangerous. So far the only thing that's new and dangerous was the prorogation. The rest is not that different from Blair or Thatcher.

Edit: Incidentally you're right it's not unique to the UK - but I think it's disingenuous nonsense to pretend it's some figment of an issue because how can people in the UK have an issue on sovereignty given the UK is a party to over 14,000 treaties. All countries have had to deal with and integrate into their legal system the European system because it goes beyond that.

I think the only possible point of UK exceptionalism is possibly in having a referendum and then the "need" to implement the referendum - I disagreed with Cameron's reform nonsense but I wanted to stay in the EU and I would have accepted a second referendum on the terms of the Withdrawal Agreement. But in my view that needs to be implemented and only another referendum can overturn that decision - and I think the same about Scottish independence or Welsh independence etc. And I think that view is very deeply held including by most Remainers. I'm not so sure if an "advisory referendum" would be so widely viewed as binding in other countries - I could be wrong, maybe it would - and I don't think most countries would allow a referendum on something like this to begin with.

[Sheilbh]

Incidentally for Zanza, there's a couple of straws in the wind about where the UK sees the landing zone. Johnson, on Wednesday, said he wouldn't accept if tariffs (following divergence) that were applied "automatically" and Raab was on TV today saying that the other issue is that tariffs should be sectoral not blanket (to avoid "nuclear style soap opera every time" there's divergence in the future).

Now I'm just an idiot looking from the outside. But it seems to me like there's a solution there: both sides have the power to impose tariffs as the price for divergence rather than ratcheting but that's discretionary rather than automatic and the other side can challenge the proportionality of those tariffs through the dispute resolution mechanism/binding arbitration. Especially as tariffs aren't automatic as you say, that feels like it could be something there could be agreement on.

If I were the EU, so the more powerful party, I'd probably resist sectoral measures but propose some other type of limit - so that instead of blanket tariffs you can hurt them politically like most tariff disputes are.

[Tamas]

Incidentally for Zanza, there's a couple of straws in the wind about where the UK sees the landing zone. Johnson, on Wednesday, said he wouldn't accept if tariffs (following divergence) that were applied "automatically" and Raab was on TV today saying that the other issue is that tariffs should be sectoral not blanket (to avoid "nuclear style soap opera every time" there's divergence in the future).

Now I'm just an idiot looking from the outside. But it seems to me like there's a solution there: both sides have the power to impose tariffs as the price for divergence rather than ratcheting but that's discretionary rather than automatic and the other side can challenge the proportionality of those tariffs through the dispute resolution mechanism/binding arbitration. Especially as tariffs aren't automatic as you say, that feels like it could be something there could be agreement on.

If I were the EU, so the more powerful party, I'd probably resist sectoral measures but propose some other type of limit - so that instead of blanket tariffs you can hurt them politically like most tariff disputes are.

What would be the EU's benefit in such a solution?

[Sheilbh]

What would be the EU's benefit in such a solution?

My understanding is that it's basically the EU position with the addition of limits on the scope of tariffs. That's why I'm wondering if this is another of those examples where Johnson sets up a fake argument then agrees to something previously offered and announces it as a great victory.

The EU's starting position from my understanding was full dynamic alignment, then unilateral ratchet provisions and they've now moved to ratchet provisions which are mutual. The UK is a little less clear but I think it's gone from just non-regression of agreed standards, to a toothless ratchet provision (i.e. no ability to retaliate), to mutual ratchet but all retaliation is subject to dispute resolution.

[Zanza]

It was interesting in that they actually really liked the German model. Because the German Constitutional Court has said that it will of course implement European law to the extent that the law does not conflict with German Basic Law (which is not quite what the CJEU has ruled - they've said there is no role for the local courts to assess whether European law is permitted within their constitutional order, which makes sense and is necessary).

That's actually not what the German Constitutional Court does. It limits itself to the German constitution of course, but the German constitution has an article that are defines the boundaries and ways for German participation in the European Union. Whenever the court rules on European Union matters, it is always ruling about the domestic constitutional actors obligations and competences outlined in Article 23 of our constitution. In cases where European Union law needs to be interpreted, it refers to the CJEU. However, in the recent ECB case, it ruled that the CJEU didn't do its job right reviewing ECB decisions, so the judgement was not applicable as it did not fulfill the CJEU own prior legal standards. As the German constitutional court can only bind German authorities, it did just that, demanding they make sure that the ECB follows European law again.

Yeah so I think this is true - and why I think the Brexit leaders are best understood as Maggie enthusiasts not imperialists. That's the constitutional order they want to go back to - it's about the 1980s not the 1890s.

I don't get how Brexit and Thatcherism could go together. Thatcher was after all the driving force behind the Single Market and was always clear that she wanted a voice at the table when decisions for Europe were made. That's not at all what the Brexiteers want. They want splendid isolation when it comes to Europe.

[Sheilbh]

That's actually not what the German Constitutional Court does. It limits itself to the German constitution of course, but the German constitution has an article that are defines the boundaries and ways for German participation in the European Union. Whenever the court rules on European Union matters, it is always ruling about the domestic constitutional actors obligations and competences outlined in Article 23 of our constitution. In cases where European Union law needs to be interpreted, it refers to the CJEU.

Right but isn't it so long as EU law doesn't sort of impinge on fundamental rights and freedoms under the German constitution (and of course the EU position would be that by definition because of the Charter of Fundamental Rights it wouldn't)?

But even that description has issues. The German constitution and Constitutional Court are hugely admired and respected - and there's never been a clash between what domestic actors must do to implement EU law and the constitutional limits (yet). But, for example, Orban could change the Hungarian constitution and then have Hungarian courts apply a similar test and it would be chaos. That's why the CJEU jurisprudence is pretty consistent on this that local constitutions and constitutional courts don't have this right because EU law is an independent legal order.

However, in the recent ECB case, it ruled that the CJEU didn't do its job right reviewing ECB decisions, so the judgement was not applicable as it did not fulfill the CJEU own prior legal standards. As the German constitutional court can only bind German authorities, it did just that, demanding they make sure that the ECB follows European law again.

Yeah - I've read up about the Constitutional Court and find a huge amount to admire about it and I think it's very interesting because it is very different from UK courts (I don't think we have that concept of any of the court's as a sort of citizen's court for example) - but that decision is extraordinary. No member state court has the power to review European matters and decide the CJEU got it wrong. If that is picked up on other matters or in other countries it's a hugely dangerous idea because you could end up at 27 courts coming up with different decisions on European law, it's the issue the CJEU was established to stop.

I don't get how Brexit and Thatcherism could go together. Thatcher was after all the driving force behind the Single Market and was always clear that she wanted a voice at the table when decisions for Europe were made. That's not at all what the Brexiteers want. They want splendid isolation when it comes to Europe.

I agree about actual living Thatcherism in power. But I think it's sort of refracted through the experience of young, politically engaged privileged white Tories at Oxford. And domestically one of Thatcher's closest advisors said he always thought there was something a bit Leninist about Thatcher: "the absolute determination, the belief that there's a vanguard which is right and if you keep that small, tightly knit team together, they will drive things through". I think that's the bit they vicariously loved and that's the bit that destroyed other domestic locations of power. Local government was crippled, the trade unions were smashed, the traditional patrician wing of the Tory party decimated (probably for the best - one famously and anti-semitically sniffed about Thatcher's cabinets that they "included too many old Estonians and not enough Old Etonians").

I think that sense is probably why, aside from pure pretension, Gove has (or used to have) portraits of Lenin and Malcolm X in his office

The other point is that I think with Thatcherism you have Thatcherism as it actually was in power and then Thatcherism as Thatcher described in her memoirs and sort of propagandised in her retirement. She was, I think, our worst ex-Prime Minister. Because she was unbeaten at the ballot box and removed by an internal party coup she always had a sort of legitimacy in the party and she meddled in internal party politics and made life very difficult for every single Tory leader after her until she died (Heath tried to do the same but had zero legitimacy in the party so was reduced to sulking).

[garbon]

BBC Breakfast just interviewed a fisherman in Brixham to get a man on the street (waves?) take on what needs to happen with Brexit. He said that he wants Boris to do what he promised, let Britain take back control of its waters. Not to prevent EU from fishing in UK waters but control how many boats and also get them access to EU waters as British fishermen sometimes fish in their waters at parts of the year.

Presenter went to say ah yes fish don't obey international borders but was cut off my fisherman saying something like, you say that but from Dover to the Isles Scilly, we have some of the best waters. Then wrapped it up with some mention of 7 billion fish-easting people in Asia and that the French, Spaniards and Italians would still be buying British fish.

[Tamas]

A post-Brexit trade and security deal could be sealed as early as this week after Boris Johnson made a key concession at the weekend but the pathway to agreement remains "very narrow", Michel Barnier has told ambassadors and MEPs in Brussels.

The EU's chief negotiator said the prime minister's acceptance of the need to ensure that there is fair competition for British and European businesses as regulatory standards diverge over time had unlocked the talks despite difficult issues remaining.

"For the first time," Barnier said, the UK government had "accepted a mechanism of unilateral measures", such as tariffs, where there were "systemic divergences which distort trade and investment".

Who would have thought: At the end, the UK folds to EU requirements, just like the previous two rounds.

[Sheilbh]

That's not really a UK fold. It's a compromise because it depends which bit you look at "accepted a mechanism of unilateral measures" (UK compromise because they didn't want this) "where there were "systemic divergences which distort trade and investment"" (EU compromise because that means the response has to be proportionate and there's some evidence process- it only happens if there are systemic divergence which distort trade not just because there is divergence).

As I say I think it's a compromise from both parties starting positions to something that's relatively sensible. It allows for the UK goal of divergence in the long-run (and "sovereignty" in the sense of writing its own regulations/standards etc) while providing a mechanism to protect the EU from the UK undercutting them to obtain competitive advantage. But the parties started with no real mechanism for dealing with the LPF in the future v dynamic alignment. This seems like a sensible position for both sides to reach.

[Zanza]

The faction leaders of EPP, S&D, Greens and Renew in the European Parliament have supposedly agreed not to ratify anymore in 2020 if there is a deal. 

[PJL]

The faction leaders of EPP, S&D, Greens and Renew in the European Parliament have supposedly agreed not to ratify anymore in 2020 if there is a deal.

Not a problem, the transition period will just be extended by a few months if a deal is within reach. The precedent was made with the original Brexit deadlines being extended.

[Sheilbh]

Not sure if it's possible to extend the transition period. I think more likely is provisional application of the trade deal.

There is a bit of dispute between the party coordinators on trade about this (that line was Lamberts who may have got ahead of what had been agreed - Weber said Friday was the deadline, the S&D coordinator said there is no deadline but Friday is an "important day").

If there's a deal then I think the EP would probably pass it quite quickly because the alternative is a very real risk that it's applied provisionally which highlights the EP's weakness among the institutions. I saw one former Commission civil servant say the EP's comments are "just noise".

[Zanza]

Not a problem, the transition period will just be extended by a few months if a deal is within reach. The precedent was made with the original Brexit deadlines being extended.

The original extensions were possible under Article 50 TEU. There is no obvious legal instrument for another extension now.

[Zanza]

Also considering the balance of obligations and rights, a month of transition period extension should mean the UK pays its share of the EU budget. Which might be a hard sell when you want to convince the ERG.

[Sheilbh]

The ERG are irrelevant now.

The EP could I've seen multiple reports from the different leaders. That was Lamberts' line, but I think there's still discussion because Weber said Friday is the deadline and the S&D coordinator said Friday isn't a deadline but is "an important day".

From my understanding the transition period can't be extended. I wouldn't take this too seriously - I saw one former Commission civil servant refer to it as "just noise" and there is a risk that they don't ratify it, it's applied provisionally and then they do ratify it (even the they don't ratify it, there's a small period of no deal and then they ratify it) which sort of exposes that they are, still, the weakest of the institutions and I don't think they'd do that. My suspicion is they'll huff and puff and ratify if there's a deal.

On Tamas's point earlier I'm now seeing competing briefings from the EU and Nr 10 over who moved first - if we're at that stage, it's a good sign