June to October we spent wondering whether we would leave the single market. October to January we knew Brexit meant Brexit but not what Brexit meant. January to March we occupied ourselves preparing sectoral deals we knew could never happen. March we triggered Article 50, and were supposed at last to start negotiating, but Theresa May called the General Election instead.
And now, when we’re back in June again, and the General Election is done, we will have yet another delay.
The summer, David Davis has said, will be taken up not with negotiations but with negotiations over the order in which we negotiate. Article 50 mandates, he says, negotiations of the future relationship between the UK and EU at the same time as negotiations about our exit agreement. This would smooth his political path to a trade deal. But the EU disagrees. It says we must first resolve the question of our exit bill and the rights of EU citizens.
And, perhaps because David Davis has said it, we’re now all obsessing about it. The media is in a flap about it. I’ve been asked whether the point might be litigated. But does it have any value?
Reader, it does not.
Here’s what Article 50(2) (relevantly) says:
the Union shall negotiate and conclude an agreement with that [withdrawing] State, setting out the arrangements for its withdrawal, taking account of the framework for its future relationship with the Union.
And here’s why the point lacks value.
(1) On any view the future relationship takes a backseat to the withdrawal agreement. The Treaty mandates that the withdrawal “agreement” be negotiated. By contrast there is no Treaty requirement for an agreement governing the future relationship. All the Treaty seems to envisage is that there be a “framework” – something less than an agreement – for a future relationship.
(2) The requirement to take account of the framework is parasitic on the agreement. If there is no agreement then there is no need to take account of the framework. What this seems to me to mean is this: unless and until you have a degree of confidence that there will be an agreement it is pointless to take account of anything in that agreement. And this thinking is perfectly reflected in the EU’s negotiation position. They want a degree of confidence that the stumbling blocks to an agreement – citizens’ rights and settling the tab – will fall away before they move on to discuss the rest of the agreement or the framework.
Those points are points of construction. And they are tolerably clear. But there are also powerful arguments to why, even if the position were less clear, Davis’ argument would still be futile.
(3) Judges only do what judges can do better than those they oversee. One of the things they can do better is read the words of the legislation. But they are not negotiators and will not tell those who are how negotiations should be conducted. This isn’t a philosophical point. It is a principle of law – called justiciability. But what it means is that judges aren’t going to tell the politicians how to handle the Article 50 discussions.
(4) But even if all of this is wrong, and Davis is right, where does it get him? Will he take up six months or more asking the Court of Justice to rule on the order in which the negotiations have to be conducted? Leave aside the irony of Davis seeking to persuade the CJEU that We’ll then be in March 2018 and we still won’t actually have begun to negotiate about either the withdrawal agreement or the framework for our future relationship.
None of this is rocket science. It’s not difficult. So the interesting question is not whether Davis is right. It’s why on earth Davis would be taking up time arguing a point he can’t win?
Why a further delay? Taking us well beyond a year after the vote to leave without even commencing negotiations?
And here we move into the realm of speculation. And we can’t know what the answer is. We can’t know whether it’s because they don’t want to get found out. We can’t know whether they are trying to delay the economic reckoning. Or whether they see time as their ally in embedding a sense of the inevitability of Brexit.
But what we can know is this. This isn’t how you behave if you’re trying to strike an enormously complex deal in a very limited time frame.Follow @jolyonmaugham