Tuesday, 17 January 2017

Brexit: the Prime Minister sets the wrong course



Steve Peers

Today’s speech by Prime Minister Theresa May gave a number of indications as to the government’s intentions as regards implementing Brexit. Overall, while the speech contained some welcome parts, it made fundamentally the wrong decision about the country’s future.

Welcome parts of the speech

The welcome parts of the speech include the argument that it ‘remains overwhelmingly and compellingly in Britain’s national interest that the EU should succeed’. Indeed, any ‘unravelling’ of the Union between these neighbouring states is not in the economic or security interests of the UK. Her suggestions about what the EU should do next contain much common sense – although it is doubtful that the remaining EU is very interesting in listening to the leader of a country that is intending to leave. In particularly, her complaints about too much ‘uniformity’ and not enough ‘diversity’ will strike some as bizarre – coming from a country with opt-outs on the single currency, Schengen, justice and home affairs (and previously social policy) plus a budget rebate.

The commitment to retain status for EU citizens in the UK is not new, but still welcome. It is disappointing however that there was no commitment to entrench their rights unilaterally, as recently proposed by a group of Leave and Remain supporters in a British Future report. There could be compromise ways to address this: publishing a draft Bill to this effect, or entrenching the rights in law conditional on EU reciprocity. One can only hope that the issue will be addressed at an early stage of the negotiations.

The interest in continued collaboration on research, police cooperation and foreign policy is also welcome, since the UK still has joint interests with other Member States in these fields. But it is content-free: what exactly would the UK like to participate in? How does this square with her assertion that the UK will not be involved with ‘bits’ of the EU?

Single market and customs union

The Prime Minister declared her opposition to ‘partial membership of the European Union, associate membership of the European Union, or anything that leaves us half-in, half-out.’ But there is no such thing as ‘partial’ or ‘associate’ membership of the EU. May is slaying straw dragons in her own imagination here.

She goes on to confirm her opposition to single market membership (as distinct from single market access) for the UK, for several reasons. It is striking that she makes no assertion that the UK will be better off out of the single market economically. Indeed, the IFS has estimated that the UK will lose 4% of GDP if it leaves the single market without a free trade deal, due to the loss of market access that this entails. While May goes on to say that she seeks a free trade deal, this is bound to entail less trade between the UK and the EU than single market membership, as free trade deals do not remove as many non-tariff barriers as the single market rules.

So what are her reasons? One is control of immigration – and free movement of persons is a non-negotiable condition of the EU for participation in the single market.  Here she fails to consider that the European Economic Area (EEA) treaty includes a safeguard on free movement which could be invoked in order to control it. May’s description of free movement includes overstated claims about its effect on public services, ignoring the impact of limited government funding of health and education in recent years – while she cannot bring herself to mention the overall economic benefit derived from EU migrants.

Another is budget contributions. She rules out any budget contributions except for participation in individual programmes. There is no consideration of whether the EEA option – giving money directly to poorer EU countries, with more control over the spending by the contributor – would be desirable in return for increased market access.

Next, there is the role of the ECJ. May states that single market membership ‘would mean accepting a role for the European Court of Justice that would see it still having direct legal authority in our country.’ Let’s not mince words: this is not true. The EEA states are not subject to the ECJ at all, but to the separate EFTA Court. That court has less jurisdiction than the ECJ, and a large number of its rulings are not binding at all. It is only obliged to follow ECJ rulings delivered before 1991.

More broadly, May states that this ‘would to all intents and purposes mean not leaving the EU at all.’ Again, this is not really true. EEA members are not subject to EU rules on agriculture, foreign policy, fisheries, justice and home affairs (except via separate treaties, in part) or trade with non-EU countries – the very issue which May devotes a large part of her speech to.

This brings me to a false dichotomy on which her speech rests: that there is some sort of choice to be made between EU membership and ‘Global Britain’. In fact, barriers to trade with non-EU countries have been coming down, both due to EU membership of the WTO and due to bilateral trade deals between the EU and non-EU countries. The share of UK trade with non-EU countries has therefore been rising – as Leavers are often quick to point out. Many other EU countries trade more that the UK does with non-EU states – as May herself pointed out last year. So it’s not EU membership that significantly holds back trade with non-EU states.

It is true that inside the EU’s customs union, the UK cannot sign its own trade deals with non-EU states. But the UK could seek to remain in the single market (like Norway) but leave the customs union. Indeed, Norway and other EEA countries have a number of their own trade agreements. In effect, this would be the best of both worlds – maintaining the maximum possible access to the EU’s internal market via means of full participation, while simultaneously having the freedom to sign additional trade deals with non-EU countries.

She also argues that both sides in the referendum made clear it was about the single market. But the single market was not on the ballot paper and was not often mentioned. When it was mentioned, some Leavers, like Dan Hannan, expressly declared that single market membership would not be affected. I recall well a common cut-and-paste statement from Leave supporters in Facebook posts beginning ‘The UK will not be leaving the EEA…’. Although David Cameron stated that leaving the EU meant leaving the single market, why should anyone be bound by his falsehood? And why should one claim made during the campaign be treated as politically binding, while others – notably those which appeared on the side of a bus – are not?

As for the customs union, May proposes a ‘have your cake and eat it’ version – a special deal simplifying border crossings, while being free to sign the UK’s separate international trade deals. Time will tell if this idea interests the EU.

A transitional deal

The Prime Minister accepts that the UK cannot switch immediately to a new arrangement, but cannot bring herself to support a transitional deal, saying ‘[i]nstead, I want us to have reached an agreement about our future partnership by the time the 2-year Article 50 process has concluded’. Such an arrangement would then be phased in. This time frame is unlikely, given that she wants a bespoke deal, involving special arrangements on customs and comprehensive free trade.  So what happens if the Brexit Fairy does not deliver by this deadline?

The role of parliament

Early on in the speech, May states that ‘the principle of Parliamentary Sovereignty is the basis of our unwritten constitutional settlement’. Unfortunately, these are empty words. A Martian reading this would assume that she had gone to court to try to ensure parliamentary involvement in the triggering of Article 50 – rather than to block it.

Furthermore, her speech comes in place of any white paper or any other public consultation on the best course to follow after Brexit. She ‘concedes’ that parliament will vote on the final deal, but this is not much of a choice – a free trade deal or nothing – unless there is an option to negotiate a different deal (not enough time) or to stay in the EU on the basis of another referendum on the exit terms (ruled out by the government).  In any event, it’s not a real concession: the Constitutional Reform and Governance Act of 2010 makes a form of parliamentary control a legal requirement in principle for most treaties. She made no commitment for a full Act of Parliament to approve the final deal – even though one is required for even minor changes to EU Treaties, and even for the approval of some EU legislation.

So May seeks credit for doing something she was anyway legally required to do. In fact, she deserves blame for previously threatening to ignore the law, and even now involving Parliament as little as possible and planning to offer it a fait accompli.

As for EU legislation converted to UK law, by the future Great Repeal Bill, she states that it will only be changed ‘after full scrutiny and proper Parliamentary debate’. This sounds nice superficially, but falls short of a commitment to use Acts of Parliament on key issues. Rather it sounds like an intention to use Statutory Instruments, which can’t usually be amended by Parliament and are rarely blocked. Without a commitment to use Acts of Parliament, her guarantee to uphold workers’ rights derived from EU law is worth rather less than she suggests; and there is no such commitment as regards environmental law.

The devolved administrations

The Prime Minister states that ‘we will put the preservation of our precious Union at the heart of everything we do’ and that she will ‘strengthen our precious Union’. However, her plan necessarily rejects the detailed suggestions of the Scottish government from December (discussed here) for the future EU/UK trade relationship.  So not only is the Scottish (and Northern Irish) public’s view on the desirability of Brexit is overridden, but also the Scottish government’s later views on how Brexit should take place are ignored. The Scottish government paper can hardly be ‘considered’ if it has already been overruled.

There’s a pledge not to weaken existing powers of devolved bodies, but there will surely be battles ahead over which level of government should exercise powers over devolved competences returned from the EU.  Conversely, there’s no suggestion of any granting any additional devolved powers, which might have been appropriate to address the obviously highly divergent views of Scotland, Northern Ireland and the rest of the UK. There’s another pledge to maintain the Common Travel Area between Northern Ireland and the Republic of Ireland, but this is content-free.

In short, there’s nothing here to ‘strengthen’ the Union at all. Its ‘preservation’ depends solely upon the continued argument that Scotland would be worse off outside the UK’s economic union – while simultaneously maintaining that the UK is better off outside the European version of the same.

Unity and Brexit

The Prime Minister declares that the referendum ‘victors have the responsibility to act magnanimously’, and the losers to accept the result. But she has not shown the slightest magnanimity in her speech today. She dismisses the arguments for staying in the single market made by those – like the Scottish government – who sought to remain in the EU but who believe that single market membership would be a reasonable compromise for a badly divided country.

More broadly, her emollient tone today cannot erase the memory of her conference speech in October – full of sneering references to ‘citizens of the world’ and the dreaded ‘liberal elites’ (cue the Star Wars Imperial March music). It’s a strange world in which Alexander Boris de Pfeffel Johnson – graduate of Eton and Balliol College – dismisses people like me – the grandson of a miner, the son and stepson of factory workers – as part of the ‘elite’.

Still less can her speech erase the memory of her Lord Chancellor failing in her statutory duty to defend the independence of the judiciary from screeching headlines about the ‘Enemies of the People’. And if she really believed in magnanimity in concrete terms, she could have announced a unilateral decision to let EU citizens stay in the UK.

Conclusion

Some of the Prime Minister’s speech is valuable – setting the right overall tone on relations with the EU, implicitly rejecting the more harmful 'WTO-only' option, and eschewing (hopefully genuinely) future derision of the 48% who took a different point of view in the referendum. But ultimately she has made the wrong decision on single market participation, putting politics ahead of the country’s economic interests. And key parts of the speech are vague, incorrect, misleading, hypocritical or fantasist. Perhaps we were better off with ‘Brexit means Brexit’.

Barnard & Peers: chapter 27
Photo credit: BBC

37 comments:

  1. Says it all really. Apart from mentioning how long it will take to become a member of the WTO.

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    1. UK has been a member of the WTO since 1995:

      https://www.wto.org/english/thewto_e/countries_e/united_kingdom_e.htm

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    2. UK membership of the WTO is via the EU.
      On leaving the EU this would lapse.
      See details on the above link.

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    3. The UK is a member of the WTO via the EU.
      On leaving the EU, this schedule would lapse and new tariffs would have to be negotiated with the 150 odd members.
      Reapplying would not take much time, but a quick deal is out of the question. Certain parties might seek to extract concessions in return for agreement (e.g. Malvinas, Foreign Aid)

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    4. You can read about this issue here: http://www.ictsd.org/opinion/understanding-the-uk

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  2. Thank you for a very good, albeit depressing, analysis.

    I have a question regarding any negotiations regarding the future status of EU citizens currently residing in the UK and UK citizens currently residing in EU member states. It is my understanding that the status of third country citizens (which is what the UK will be in just over 2 years time) is a matter for each individual EU member state. Each state sets out its requirements for entry, residency, long term residency and eventually naturalisation. The only common policy is the Schengen visa, which is only valid for 3 months. Given that matters such as residency etc are competencies of the member states and not of the EU, isn't it somewhat futile hoping that the EU will be able to negotiate with the UK regarding the status of UK citizens in member states?

    Won't the UK have to undertake 27 separate sets of negotiations, with the inability to offset, for example, the rights of Poles in the UK against the rights of UK citizens in Spain?

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    1. Thanks for your question, Rob. Actually there is harmonised EU law not only on the Schengen visa but also on border control, and a lot of legislation on asylum. On legal migration there are less comprehensive EU laws which usually set minimum standards and/or allow for parallel national regimes, but there is some case law of the ECJ giving teeth to these laws. There's also EU legislation on irregular migration, in particular a law called the 'Returns Directive'. You can search the blog for terms like 'borders', 'asylum', 'legal migration' and 'irregular migration' for a number of posts on the legislation and ECJ case law. The most popular post (visible on the desktop version of the blog) is about how all this law might apply to UK citizens in the EU after Brexit.

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    2. but the need for negotiations with all 27 individually would remain?

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    3. If we are talking only about EU/UK citizens who moved before Brexit Day, this goes to the issue of whether the Article 50 withdrawal deal can regulate this issue. In my view it can, for the reasons I set out in replies to others on this blog post. But we cannot be absolutely certain of anything about Article 50 (besides the bare text) until the ECJ rules on it.
      As for those who move or visit post-Brexit, it depends on the area of law (leaving aside Ireland, which has opted out of most of it). EU legislation on short-term visas and border controls is so uniform that the EU must have exclusive power on these issues, although a Treaty protocol on external border controls limits this exclusive power somewhat (this would be relevant to the Le Toucquet treaty - if France wants to retain it). On asylum it's not so clear. On the basis of prior case law in other fields I would say it's arguable (though not certain) that the EU has exclusive competence over the Dublin rules, ie the allocation of responsibility for asylum seekers. On legal and irregular migration the EU legislation generally allows Member States to set higher (but not lower) standards by means of their own treaties with non-EU states. So the UK might wish to enter into such treaties with Member States individually. But for most immigration issues the Member States can opt, if they wish, to agree to the EU as a whole signing a treaty instead. In practice, they sometimes do this with readmission treaties although not with other migration issues, except in the context of association agreements which sometimes have some migration rules.

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  3. Two things stand out here as making no sense. One thing May said, one thing she totally ignored.

    First she mentions "friction less border crossings"almost in the same breath as new "Free Trade Deals" globally.

    Taking the example of tariff free imports from China, this would be good new for British consumers. But imagine UK companies trying to supply ex-pat customers like me on the main land. Every vehicle arriving in Calais would have to be checked if goods transport conform to strict "rules of origin" There is no way The EU will sign a free trade deal with UK that would allow UK traders to pocket de EU common tariff that mainland traders and consumers would have to absorb. Result Chaos at the border crossings, not least between Ireland and Northern Ireland.

    Secondly a Free trade Agreement with the EU might be beneficial to both EU and UK. I am sure that for automotive parts and Airbus wings such things could be arranged with sealed containers passing from factory to factory with a minimum of paperwork and no taxes. But what about our 'Services sector' Full fact said that 8 out of 10 jobs in the UK concern the service sector, where no goods are moved but people like layers, consultants and architects have to be able to move freely from EU country to EU country and beyond. No present trade deal between EU and ROW currently covers freedom of movement for people. Only the single market does. And let's not forget folks. Every day, week, month year UK imports more goods tah it exports. It's with services we balance our books. The UK services sector and the hit it will take is the elephant in the room!

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  4. Or giving the order of magnitude of the bill to be paid to be rid of all unfunded liabilities incurred as members of the EU - like pension funds etc. Easily in the tens of billions of £. No word about the dhape of agricultural and fisheries polcies - a precondition for any FTA with any interesting partners...

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  5. Interestingly some of the most vocal proponents for leaving the EU are now recognizing that "we are screwed" after hearing May's speech (Flexcit author Dr Richard North). Whilst Flexcit is extremely well thought out, it seems clearer and clearer each day that this is gigantic example of "be careful what you wish for" and the "law of unintended consequences".

    Long before any referendum was held there should have been research into exactly what would likely happen if the UK left the EU and: 1) left the EEA; 2) left the customs union; 3) replaced it with all with an FTA; 4) had a cliff-edge exit (and how this would impact daily life for trade, travel, etc). Cameron gambled and failed and the consequences are still being felt. Had Cameron been thinking long term he would have long ago gone with the position that it was best to leave the EU and either remain in the EEA as an EFTA member or to sign a new Association Agreement that would essentially replicate the provisions of the EEA (but with the infrastructure of the traditional Association Agreements like with Georgia and Moldova) AND include a section on customs union. As Prime Minister he should then have requested a civil service study on those options (as well as others) and presented them for public debate and put a motion before Parliament for a three stage referendum: Stage 1 would ask whether the public wanted to leave the EU or to remain (whether on the current terms or the renegotiated terms) and Stage 2 would then depend on the outcome of Stage 1. If Remain won Stage 1 then the public would decide on whether to accept the current terms or the renegotiated terms. If Leave won then the public would be asked to decide on the preferred relationship after Leaving: a) EFTA-EEA, b) Association Agreement with a DCFTA and customs union, c) an FTA only, d) customs union only, e) no relationship other than default WTO rules. Stage 3 would only kick in for Leave Stage 2 if no option got more than 50% of the vote and would involve a run-off vote between the two most popular options.

    At that point he could then discuss the preferred outcome with his EU partners, without the attendant uncertainty of the past six months. With those options on hand it would then be possible to prepare for them in negotiations.

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  6. its like waking up from a bad dream and discovering your house and bed are on fire.

    In there is power, out nothing . And please Ms May don't imagine for a moment the US is waiting to be your friend.

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  7. That sums up my own impressions of the speech, thanks for expressing it all so clearly. Much of it is wishful thinking, contradictory, hypocritical ... We want to remain friends with European neighbours but at the same time stab them in the back and blame them when we don’t get what we want. We don’t want to be “half in half out”, but still want the best free trade deal and a customs agreement – while refusing the common external tariff, which is surely part and parcel of such a deal; and still want to opt into certain “programmes”, presumably on security. Britain has a strong “internationalist mindset” and yet is leaving a major international organisation on its doorstep in which it played a leading role. Remaining in the EEA would have been some form of consolation for disenfranchised expats like myself, leaving us some rights. But no, we are inevitably now going to be bargaining chips, having no say in the matter whatsoever.

    So is it possible for the UK to have a bilateral customs agreement with the EU while rejecting the Common External Tariff? I know Turkey's agreement excludes certain sectors, is that the way forward? Otherwise I can't see how it would work. The proposals were anything but clear.

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    1. Thanks for your comment. Yes, the EU/Turkey agreement excludes certain sectors but otherwise there is an underlying commitment for Turkey to match EU trade policy, although it doesn't entirely do that in terms of its bilateral trade agreements. It seems clear that this would be too much harmonisation with EU trade policy for May. Instead she wants something quite different - a kind of customs facilitation deal to avoid border checks. Whether the EU would be interested in this would, as I say, remain to be seen.

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  8. I'm a bit confused about Theresa May's pledge to let Parliament vote on the outcome. We will have the A50 divorce talks, followed later by a negotiated trade settlement. Is May promising a vote only on the divorce talks? That would be a vote on our legal relationship with the EU and any contributions required to pay for that relationship. For example, we should come to an agreement about how we cooperate with the European Aviation Safety Agency and the European Insurance and Occupational Pensions Authority. That is quite separate from talks about tariffs and quotas.

    It strikes me that the Prime Minister is still conflating the disentanglement of our legal position with the EU and our trading relationship. The EU has made clear these are separate things and will be dealt with in sequence by different negotiating teams and put to different voting mechanisms.

    Have I misunderstood the Prime Minister's position? What will Parliament get to vote on? It was never really made clear, which seems like something to worry about.

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    1. Thanks for your comment. Indeed it wasn't clear what Parliament will get to vote on. However the existing Act of Parliament from 2010 mentioned in the blog post provides for a form of parliamentary control in principle over any significant treaty which the UK enters into.

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    2. Thanks for the clarification.

      The way things are going I wonder if there will be any treaties to sign.

      Really imformative post btw.

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  9. What happened to my Comment?
    The elephant in the room here is the UK's Financial Services Sector.
    Just as sure a Major killed what was left of UK manufacturing sector by not joining Eurozone, Theresa May will go down in history as the PM that killed off the Goose that laid UK's golden eggs. Export in services always has shown a healthy balance of payments for UK while all this talk of trading globally glibly avoids talking about the negative balance of trade in goods, not just with EU but according to ONS in Q3 2016 also with the non-EU rest of the world.

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  10. Interesting Analysis. Yes, hardly any sort of olive branch to 48% of us, more just 'suck it up losers'. Its the contradictions that stick in the craw most of all - global Britain, but don't be a UK based foreigner just now or you may get a 'prepare to leave' letter from the Home Office. Sickening & poisonous bile from a weak leader pretending to be Churchillian.

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  11. Hi Steve. Great article - did chuckle at the part about being part of the "elite"!

    As UK citizen residing in France (working there and not planning any return to the UK!), I am part of a Facebook group of some 5,000 people in France, affiliated to several other groups of UK citizens abroad.

    Would you be so kind as to post the link to the article you reference on the "Returns Directive" please? I have had a look but can't immediately find the one that refers to us after Brexit. Many thanks.

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    1. Thanks for your comments. It's this blog post here: https://eulawanalysis.blogspot.co.uk/2014/05/what-happens-to-british-expatriates-if.html

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  12. Hi Steve, thanks for another informative post.
    I'm wondering about free movement of people between the Republic of Ireland and the UK.
    It seems to me that a vague affirmation of retaining the Common Travel Area between the two states and the desire to sign your own FTAs, are irreconcilable objectives. I know we have to wait and see how the UK's hopes for a new customs relationship pan out but I see it as being unlikely that the UK will be able to be independent in signing its own FTAs while simultaneously asking for tariff-free borders. This seems to boil down to a hard border between the Republic and the North and the end of the Common Travel Area as a whole. It seems to me that the UK will have to make difficult choices - between allowing its citizens to move freely (through a border that has a troubled history when closed) and its independence from the customs union. Unless Northern Ireland is somehow allowed to fully participate in the customs union while the rest of the UK leaves which would mean a hard border between the island of Ireland and the UK....
    Is there something I'm missing or are these fears over the Irish land border and the Common Travel Area legitimate?

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    1. Thanks for your comment. The customs deal she refers to could possibly cover this issue, but it will be awkward. There is an EU/Swiss customs deal that facilitates movement of goods without border checks despite differences in external trade policy, but whether that deal can simply be adapted to the Northern Ireland context is another matter. The Treaties do contain protocols preserving the common travel area but it's not clear what that means in practical terms if the UK leaves the EU.

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    2. I live in Switzerland. There is a "soft" customs border between Switzerland and its neighbours. It's quite easy to evade it on foot or bicycle if you're really determined but an articulated truck is going to have to go through the customs post. I've never been stopped on foot or on bicycle in any direction but I have seen quite a lot of cars being stopped. There are also random checks on trains to see if anyone has exceeded the 300CHF limit, especially on Swiss public holidays not shared by Germany. Importing consumer goods by post almost always results in a customs bill, except for books. I'd expect to see something similar at the NI/Ireland border.

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  13. "derision of the 48% who took a different point of view in the referendum" – actually of the 62.5% who took a different view (either to Remain, or to remain undecided and not vote on the day).

    I do not believe that it is correct to disenfranchise those who couldn't make up their minds one way or the other on voting day.

    Stephen, Oxford, UK

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    1. In my view we can't count those who didn't vote as being on either side.

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    2. But as this referendum was a decision between the status quo (Remain) and change (Leave), you could argue that those who didn't vote were either satisfied or at least tolerate the current situation. Isn't that why many other systems around the world require full electorate majorities or super majorities in support of yhe change position for them to carry? (So a 75% turnout would require Leave to have 66% ofnthe vote to carry >50% of the electorate)

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    3. Several aspects as to why I disagree with you on this.
      Primarily, it was a referendum not an election. The issue was binary - change the legal & constitutional relationship with the EU or not. 37% of the electorate (approximately 26% of the population) voted for change. Therefore the status quo is unchallenged by the majority.

      Add to that, many people were disenfranchised for administrative reasons. I for one was not allowed to vote having been not resident in UK for tax purposes for 1 year too long. Basically, by taking advantage of my rights as an EU citizen I apparently rendered myself ineligible for voting to protect those rights. Obviously a legitimate way to treat a UK citizen directly affected by the outcome.

      If I'd been living in Gibraltar, for example, and paying no tax to the UK I could have voted.

      I've had exchanges with quite a few non-voters who said they didn't understand what the issues were - which is valid and honest. In fact, from following the so-called debates leading up to the referendum and the majority of the press output it was clear that very many in the UK (probably even a majority) had no real idea about the issues, or even the EU itself; what it is, why, how etc.
      The EU discussed and debated was largely a fiction.

      Others have told me they didn't have enough information. Some didn't receive their voting papers in time, and I know of some who couldn't vote for real domestic reasons.

      There are many reasons for dismissing the result of the referendum including misdirection, mismanagement, disenfranchisement, no majority for legal or constitutional change, never mind that it was an advisory referendum (neither an election nor legally binding).

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    4. I might have put parts of this argument myself if there had been any sign of a shift in views over the last six months. I have seen no such sign nor do I now expect to.

      Contrariwise, having voted in Britain's first referendum, I have always considered them at best bogus and dismiss them all, whatever the result - for some of the reasons you have given and more.

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  14. Thanks Steve, another informative post. Have a couple of questions for you.

    So when A50 is triggered and we sit down at the negotiating table, who will be in 'TeamGB' ?

    (bearing in mind the reports from a few months ago that the UK does not have the necessary number of experienced trade negotiators. I believe at one point we were looking to hire from Australia/New Zealand or even from private business firms.)

    Secondly, if the negotiations were a card game, just how strong is the UK's hand ?

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    1. Thanks for your comment, Nick. I don't know who will be in the UK's team. On your second question, most people seem to argue that one side or the other 'holds all the cards'. I don't agree with either side, since both sides have economic interests and political constraints. And card games have a single winner; trade negotiations in principle don't as such, especially when the two sides have different objectives. But if we have to go with the 'all the cards' analogy I would say that the UK has about a third of the cards - although that is a broad hunch about something which in principle can't be quantified at all.

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  15. Why is any decision on British nationals resident in the EU 27 a matter for the EU rather than for each of those individual countries? How can the EU give such an assurance on behalf of their present and future governments?

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    1. If you mean those present before Brexit, then there's a strong argument that since Article 50 regulates the 'unwinding' of a Member State's relationship with the EU, that must concern the ongoing status of all issues which arose between the departing Member State and the remaining EU as a consequence of EU membership. See the free movement of persons is one of those consequences, the status of UK citizens in the EU (and vice versa) falls within the scope of Article 50. It's not unusual for the EU to sign a treaty which binds its Member States' governments - it's a consequence of the transfer of the relevant powers to the EU and the EU's international legal personality. The governments are of course involved in those negotiations and the conclusion of the final deal in their capacity in the EU Council and European Council.

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    2. I see the argument you put. I'm not a lawyer but it seems a bit of a stretch to say that the unwinding of the arrangements with a departing state can mean the regularisation of what will then be third country aliens residing in various individual countries. Whatever the status as EU citizens they have at the moment would seem to fall away after their own state leaves. I can't see that Brits on the Costas necessarily have any different status after Brexit to Mexicans living there. And their legal right to remain the day after Brexit would be a matter for Madrid and not for Brussels?

      The Home Office is clearly already treating many people (currently) legally resident in Britain as if they will in due course have no special continuing status. While the British Government could change that, I am surprised that Brussels can centrally do so on behalf of individual EU countries any more than it can with their resident aliens from anywhere in the globe with no free movement rights.

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    3. It seems self-evident to me that Article 50 deals with the future status of legal relationships established during the period when a country was a Member State. That doesn't mean the people concerned have EU citizenship - I've always said that line of argument is clearly incorrect due to the definition of EU citizenship deriving from nationality of a Member State. But they can have a special relationship due to rights they previously acquired. There is some reference to this principle in international law and in fact there is a directly relevant precedent - the treaty on Greenland's withdrawal from the EU refers to possible EEC measures on the acquired rights of natural or legal persons: http://naalakkersuisut.gl/~/media/Nanoq/Files/Attached%20Files/Bruxelles/EU%20and%20Greenland/The%20European%20Union%20and%20Greenland/Greenland%20Treaty%20eng.pdf
      I wouldn't refer to 'Brussels' doing things 'on behalf' of countries. The withdrawal treaty would be approved by a qualified majority of Member States in the Council and Member States will have a role in the whole process. And there's lots of EU legislation on immigration of non-EU citizens - just because they don't have free movement rights doesn't mean that they are not subjects of EU law as regards their immigration status.

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  16. Most helpful. I'm aware of some discussion around acquired rights.

    I must have phrased it badly as I didn't mean Brussels was doing anything to states. I queried whether it would be within Brussels' powers to deal EU-wide with committing a state on a matter that was ultimately for an individual state.

    However, I take your points.

    By the by, I do not expect any Brexit deal before the two years are up. It may or may not get as far as the EU Parliament but I doubt it will survive that. We shall see.

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