Now that Article 50 has been triggered, reality will start to bite

Following the triggering of Article 50, the honeymoon period is over for Theresa May. Oliver Patel outlines the main challenges which the UK faces in the upcoming negotiations. He argues that securing a deal within the two period will be hard enough. Securing a deal which pleases everyone – or anyone at all – will be virtually impossible.

Theresa May has had an easy ride so far. Up until now, she has only had to worry about pleasing her core domestic audiences. Now that Article 50 has been triggered, however, reality will start to bite. The two-year road to Brexit is fraught with uncertainty, obstacles and challenges. Two stand out above all else. First, given the complexity of the task, two years is an extremely short length of time in which to negotiate and finalise the UK’s withdrawal. Second, getting a deal which satisfies everyone – the British public, the EU and its 27 member states – will be virtually impossible. Theresa May needs to negotiate with 27 other countries, each with their own interests and priorities, who arguably have the upper hand in the talks. Her task is an unenviable one.

Is two years enough?

The triggering of Article 50 marks the beginning of a two-year process in which the UK and the EU must negotiate and conclude a withdrawal agreement. From May onwards, after the European Council have agreed upon official negotiating guidelines, the negotiations can begin in earnest. If no deal is reached within two years, the UK leaves without an agreement (unless the EU unanimously decides to extend the negotiations). Two years is a remarkably short length of time in which to complete what is routinely described as the most complex task undertaken by the British government since World War II. EU leaders have made it clear that they want the negotiations to end in October 2018, to allow time for any withdrawal agreement to be reviewed and ratified. This means that the UK could have no more than 18 months to negotiate its exit.

This short timeframe makes the entire process particularly challenging. Sorting out the practical aspects of the divorce will be complex in the extreme. Resolving thorny issues such as the Irish border, the status of EU nationals in the UK and UK nationals in the EU, the future participation of the UK in EU regulatory bodies, and the financial liabilities which the UK owes the EU, will be highly time-consuming, not least due to the complexity and contestability of the issues involved.

Continue reading

The government’s Brexit white paper: a missed opportunity

Nick-WrightOn 2 February the government published its white paper on Brexit, which was intended to provide further detail regarding the overall aims the government would be pursuing once Article 50 has been triggered. Nick Wright assesses this document, concluding that whilst it does expand on some of Theresa May’s key pledges set out in the Lancaster House speech in several areas it remains unclear exactly what the government is seeking. One example of this is the idea of a UK-EU strategic partnership, which is proposed in the white paper but not expanded on. Overall, it is hard not to see the white paper as a missed opportunity.

The government’s Brexit white paper, published in the aftermath of the House of Commons vote on the second reading of the ‘Brexit’ bill, received a mixed response.

Following Theresa May’s Lancaster House speech in January, the white paper was intended to provide further detail regarding the overall aims the government would be pursuing once Article 50 has been triggered. However, although it does expand to some degree on the Prime Minister’s 12 key pledges, in several important areas it remains unclear precisely what the government is seeking.

This is particularly true on the question of the UK’s post-Brexit relationship with the EU. Here, the white paper makes a potentially significant proposal: to establish a strategic partnership, something Brexit Secretary David Davis also underlined in his statement to the House of Commons. It does not, though, offer any specifics on what such a relationship might look like.

What makes this frustrating is that whilst embryonic and lacking in detail, this is nonetheless an idea deserving of attention. As a foreign policy instrument, strategic partnerships have been an important feature of EU efforts to structure its relationships with key international partners. If properly developed, therefore, a UK-EU strategic partnership could offer the basis for the kind of positive vision for the post-Brexit future the Prime Minister articulated as one of her objectives.

Why not, then, use this as a formal framework for the new UK-EU relationship, enabling co-operation in certain key and clearly defined policy areas to be maintained? And why not use the opportunity of a white paper to signal this agenda boldly and clearly?

Continue reading

Following the Supreme Court ruling, what happens next?

robert_hazell (1)me 2015 (large)

Following today’s Supreme Court judgement, the focus of attention shifts back to parliament.  How long will it take for parliament to pass the necessary legislation? How likely is it that the legislation will be amended? Robert Hazell and Alan Renwick assess the implications for the Brexit timetable, and the government’s negotiating strategy.

What will happen to the government’s timetable?

The government have confirmed that they will introduce a short bill, probably just one or two clauses, which it will seek to pass as a matter of urgency. Bills have occasionally been passed through parliament in a few days, or even a few hours. But that can only happen if both chambers recognise the urgency, and support the bill. Crucially, the government would need to get majority support for a timetabling motion in the House of Commons to expedite the process. That might not be forthcoming in a House where three quarters of MPs voted for Remain. (In 2012 Nick Clegg had to abandon his Lords Reform bill after the government lost the timetabling motion following a big Conservative rebellion).

In the House of Lords, the government has no majority, and no control over time. The Lords Constitution Committee and the Lords EU Committee will both want to scrutinise the bill and its implications. The Lords will not block or wreck the bill, but they will want to give it proper scrutiny; especially if they think the scrutiny in the Commons has been inadequate.

Can the bill be amended?

In November government sources suggested the bill would be ‘bombproof’. Parliamentary officials say that is a fantasy. All sorts of ingenious amendments can be tabled, on process as well as substance: requiring a white paper to be published setting out the government’s negotiating position; seeking a second referendum on the negotiated terms; requiring the government to acknowledge that Article 50 notification is revocable, etc. Debate risks exposing continuing splits within both the Conservative and the Labour parties. Because the referendum specified nothing about what Brexit means, the battle continues between Brexiteers, who mostly support a hard Brexit, and Remainers hoping for a soft Brexit. Meanwhile Labour remains split on how to respond to the referendum outcome – to respect the will of the 52 per cent (who make up a majority in constituencies such as Stoke-on-Trent Central, where the forthcoming by-election will be hard fought), or speak up for the majority of Labour voters, who backed Remain. Speaking in parliament after the judgement, Labour’s Shadow Brexit Secretary, Keir Starmer, indicated that Labour would seek to amend the Article 50 legislation to require a white paper on the government’s plans, stipulate mechanisms for parliamentary scrutiny of the negotiations, and hold a ‘meaningful’ vote on the final deal. Legislation gives all groups in parliament multiple opportunities to table amendments or extract promises or impose conditions on the government during its passage.

Continue reading

The latest special adviser data release: political control trumps technocratic measures of effectiveness

benjamin_yonghamish In December the government published its latest list of special advisers, revealing a small reduction in numbers under Theresa May compared to David Cameron’s 2015 government, with the reduction falling mostly on departments rather than the centre. In this post Ben Yong and Harmish Mehta examine the new list. They argue that by reducing the number of special advisers in departments Prime Minister May has prioritised political control over technocratic measures of effectiveness.

When Theresa May first became Prime Minister there were a number of reports (including in The Times, The Telegraph and Civil Service World) that she had insisted on a cap on the salaries of special advisers (spads) – which in effect would limit both the number and quality of spads appointed. This cap, the reports said, would deter good people from entering government. How true are these claims?

Just before Christmas, the government made its annual data release, setting out the number of spads and how they are distributed across government. There are now 83 spads in government; down from 95 under Cameron’s 2015 government, according to the data release. The centre (broadly defined as No. 10 and the Cabinet Office) has ‘lost’ just one spad; the key Whitehall departments have lost eleven (most significantly from the merging of BIS and DECC into BEIS; and in the Treasury). So there has been a drop in numbers, but this has fallen mostly on departments, not the centre. There has been the usual grumble about salaries and cost, but that is standard fare.

The bigger question is what all this says about May’s government, and more generally, British government. In popular parlance, spads are regarded as a waste of money and at worst, a pernicious breed of quasi-politicians. Within Westminster and Whitehall, however, they have long been accepted as part of British government. Spads are people the minister can completely trust, in a lonely and difficult role; they provide political advice of a kind that career civil servants often cannot; they can help coordinate government. It is this latter view of spads which informs some criticisms of May’s policy on spads (see The Spectator and The Telegraph). Limiting the number of spads and the kind of spads via a salary cap means limiting government effectiveness.

Continue reading

Theresa May’s ‘Great Repeal Bill’: some preliminary thoughts

20151015-164-copy-150x150

On Sunday Theresa May announced that a ‘Great Repeal Bill’, repealing the European Communities Act 1972 and providing for EU law to be translated into UK law post-Brexit, would be included in the 2017 Queen’s speech. Mark Elliott offers some preliminary thoughts on what this will mean in practice. He writes that it is likely that the legislation will seek to confer upon ministers substantial powers to carry out the process of deciding which aspects of domesticated EU law are to be retained, which are to be amended and which are to excised from UK law altogether. This fits with the overarching message from the speeches on Brexit at the Conservative conference – that the government is committed to an executive-led withdrawal process, and is unprepared to tolerate interference in that process by either parliament or the devolved institutions.

‘Brexit means Brexit’ was only ever going to cut it for so long. And although, in her first speech to a Conservative Party conference as Prime Minister, Theresa May has repeated that well-worn phrase, she has evidently come to the view that Eurosceptics – or Brexiteers, as we must now call then – now require more by way of red meat. Such nourishment was, on the face of it, supplied in abundance in May’s speech – by way not only of the announcement that the government plans to trigger the Article 50 withdrawal process by the end of March 2017, but also by means of signalling that the next Queen’s speech will include a ‘Great Repeal Bill’. Since the primary object of the proposed ‘great repeal’ is the European Communities Act 1972 (ECA) itself – the bête noire of the Europhobic right – the announcement of the new bill is undoubtedly a clever piece of political theatre, the aim being to satisfy those who have grown weary, not to say sceptical, of May’s tautological mantra. But does the announcement of the Great Repeal Bill amount to anything more than this?

Announcing the repeal of the ECA is doubtless a sensible tactical move by the Prime Minister given the demands she faces from her right-wing. The ECA gives not only effect to EU law in the UK, but also priority to EU law over UK law – including over acts of parliament. Focusing on the proposal to repeal the ECA fits very neatly with the narrative developed by the Prime Minister in her speech about making the UK a ‘fully-independent, sovereign country’. Or, as David Davis put it in his speech , repealing the ECA will deliver ‘what people voted for: power and authority residing once again with the sovereign institutions of our own country’.

There are, however, two caveats that make the announcement of the ECA’s repeal far less legally significant than might at first be assumed. On the one hand, although the Great Repeal Act (as it will by then have become) will be on the statute book before Brexit day, it will not take effect and repeal the ECA until Brexit day. This announcement does not, therefore, amount to the sort of immediate, shock-and-awe ECA repeal that was floated by some on Brexit’s extreme fringes. That was a suggestion that was never likely to be implemented, given that it would have placed the UK in breach of its EU treaty obligations pre-Brexit. On the other hand, however, repealing the ECA upon Brexit is hardly a big deal. Indeed, a natural assumption would be that the ECA would inevitably be repealed upon Brexit, given that it would make no sense, after leaving the EU, to retain legislation providing for EU law’s effect and priority in the UK. However, we can in fact go further and say that repealing the ECA post-Brexit is legally unnecessary, and will in fact amount to nothing more than a tidying-up exercise. That is so because the ECA only gives effect and priority to such EU laws as are, at any given point in time, binding upon the UK thanks to its EU treaty obligations. Post-Brexit, the UK will have no such obligations, and the ECA will therefore give effect and priority to no EU law whatever.

Continue reading

Brexit and departmental restructuring: an unnecessary distraction?

peter-waller

Theresa May’s new cabinet brought the first significant restructuring of Whitehall departments since 2008. In this post Peter Waller considers the pros and cons of these changes. He concludes that the downsides outweigh the advantages, suggesting that there were alternative options that would have allowed dedicated Brexit and International Trade ministers to join the cabinet without the difficulties involved in establishing new departments.

In announcing her new cabinet, Theresa May indulged in a certain amount of Whitehall restructuring. Two new departments were created – the Department for Exiting the European Union and the Department for International Trade.  To balance the books (at least in part) she abolished the Department for Energy and Climate Change, transferring its functions to the Business department. The Business department (now formally the rather turgidly titled Department for Business, Energy and Industrial Strategy) in turn lost responsibility for higher education and science policy, which returned to the education department from where it had come almost a decade earlier.

The new Prime Minister thus made the first significant changes to the Whitehall infrastructure since 2008, when Gordon Brown created DECC. David Cameron, whether by design or lack of interest, had maintained the departmental structure he inherited. So the 2016 changes found Whitehall needing to set up new departments, something it had not done for half a generation.

So are these changes likely to prove worthwhile? What are the pros and cons of marking a national turning point – which Brexit undoubtedly was – with new departments with a new focus?  Writing as someone who spent a high proportion of my Whitehall career in departments whose boundaries were constantly changing, I rather sadly conclude that in this area decisive action by Theresa May is likely to be rather more troublesome than the benign neglect of her predecessor.

Continue reading

Will Theresa May call an early General Election? And would it resolve things if she did?

robert_hazell (1)

Theresa May has ruled out an early general election, but that has not stopped predictable calls for her to trigger one on the grounds that her elevation to the premiership without a general election is undemocratic. Robert Hazell suggests that in saying that an early general election is not necessary she is entirely correct: the idea that Prime Ministers need a personal mandate is a misunderstanding of our parliamentary system. Were she to want to hold an election it would not be impossible for her to do so, but the Fixed-term Parliaments Act makes this more complicated than it has historically been and, in the context of Brexit, it is unclear what an early election would resolve in any case.

Does a new Prime Minister need a democratic mandate?

As soon as it was announced that Theresa May would be elected unopposed in the second stage of the Tory leadership race, and so would become Prime Minister, the predictable cries went up that this was undemocratic. No one had voted for her, it was said, other than the 35,000 electors in Maidenhead who voted for her at the 2015 general election, and the 199 MPs who voted for her in the final ballot amongst Tory MPs. The 150,000 members of the Conservative party had been deprived of any choice in the matter, let alone the 46 million electors in the country at large.

Theresa May has herself ruled out the need for an early election. Constitutionally she is entirely correct: the idea that prime ministers need a personal mandate is based upon a fundamental misunderstanding of our parliamentary system. Only in presidential systems is the head of the government directly elected. In parliamentary systems we elect a parliament, not a government. Parliamentary elections are a two stage process: after we have elected a parliament, the new parliament then determines who forms the government. And it is not uncommon for the head of government to change part way through a parliament, and not to call a general election.That has happened five times since the Second World War: when Harold Macmillan succeeded Eden in 1957, when he in turn was replaced by Alec Douglas-Home in 1963, when James Callaghan succeeded Harold Wilson in 1975, when John Major followed Margaret Thatcher in 1990, and when Gordon Brown succeeded Tony Blair in 2007. So far as I can recall, only in the last case was it suggested that the new Prime Minister needed to call a second election.

Continue reading