"Dear Donald" - Johnson's Letter to Tusk and Tusk's Response

Boris Johnson MP

Author HMG
Licence OGL v3 
Source Wikipedia Boris Johnson

Jane Lambert

Earlier this evening, the UK prime minister wrote to His Excellency, Donald Tusk the President of the European Council. A copy of his letter can be read here,

In the first paragraph, Johnson notes that the date of brexit is fast approaching and that he hopes that the UK will leave with a deal. He affirms the government's commitment to the peace process, the common travel area and to maintaining good relations with the Republic of Ireland but the backstop has to go. He gives three reasons one of which is new:

"Third, it has become increasingly clear that the backstop risks weakening the delicate balance embodied in the Belfast (Good Friday) Agreement,"

His argument appears to be that the Belfast Agreement is based on a balance between the rights and interests of both communities in Northern Ireland and that balance would be upset if control of large areas of the province's social and commercial life were removed.  Johnson argues that the objectives of the Agreement can best be served if the UK and EU look for solutions other than the backstop.  He offers to put those solutions in place as far as possible before the end of 2020 and to look constructively at any other commitments that may be required to establish confidence if a permanent solution has not been found by that date.

Should anyone wish to discuss this letter or brexit generally, I can be contacted on +44 (0)20 7404 5252 during office hours or through my contact page at any time.

Tusk's Response

The backstop is an insurance to avoid a hard border on the island of Ireland unless and until an alternative is found. Those against the backstop and not proposing realistic alternatives in fact support reestablishing a border. Even if they do not admit it.

— Donald Tusk (@eucopresident) August 20, 2019

Brexit Briefing - July 2019

10 Downing Street

Author Sgt Tom Robinson RLC/MOD
Licence Open Government Licence  v. 1.0
Source Wikipedia 10 Downing Street

Jane Lambert

On 24 July 2019 HMQ invited the Rt Hon Boris Johnson MP to form a government. Immediately, he installed a new team of ministers and advisers with the mission of withdrawing the United Kingdom from the European Union by 23:00 on 31 Oct 2019. Ostensibly the Johnson administration's objective is to negotiate a new withdrawal agreement within the meaning of art 50 (2) of the Treaty on European Union or renegotiate the existing draft but its preconditions for resuming talks are well beyond the negotiating guidelines of the European Council of 29 April and 15 Dec 2017 and 23 March 2018. According to Daniel Boffey and Rowena Mason, the Commission has advised the governments of the 27 member states that "Boris Johnson has no intention of renegotiating Brexit deal" (5 Aug 2019 The Guardian).

Now announcements of that kind are not always to be taken at face value. It is possible for one side or the other to make sufficient concessions to enable a deal to be done.  Parliament may pass a motion of no confidence or even a statute requiring the revocation of the notice of intention to leave the EU in the event of no-deal,. But these are unlikely.  They will require an act of political courage on the part of a sufficient number of remain minded Tory MPs that few have exhibited to date. There will be enormous demonstrations by brexit supporters and possibly even civil unrest.  The recent plunge in the value of the pound suggests that markets anticipate a disorderly brexit, that is to say, leaving without a withdrawal agreement.

And then what?  In Preparing Brexit: No Deal, the Institute for Government warns that:

• It will be much harder and more complex to strike a deal with the EU;
• No-deal means losing deals with many other non-EU countries;
• A showdown in Parliament cannot be avoided:
• Brexit will dominate Whitehall;
• The government will have to support struggling and failing businesses: and
• The Union will come under unprecedented pressure.

Will we gain in a trade deal with the USA what we lose from erecting barriers between ourselves and our nearest and largest market?  Possibly, but unlikely (see What Sort of Trade Deal (if any) could the UK negotiate with the USA? 8 June 2018).  This morning we were flattered by Senator Tom Cotton and 44 of his colleagues in Cotton, Colleagues Pen Letter Pledging to Back Britain After Brexit 3 Aug 2019. But we were exposed to some healthy realism by former Treasury Secretary Larry Summers who made the point that we have very little leverage in any negotiations with the Trump administration

What can businesses and individuals do to mitigate the consequences of a hard brexit? Obviously, take note of the avalanche of guidance notes and emails that are likely from the government in the next few weeks but there are also a lot of useful suggestions in the CBI's What comes next? The business analysis of no deal preparations (see Practical advice on preparations for No deal from the CBI and IfG 1 Aug 2019).

Anyone wishing to discuss this article or legal issues relating to brexit generally should call me on 020 7404 5252 during office hours or send me a message through my contact form. 

Practical advice on preparations for No deal from the CBI and IfG

Dover Harbour

Author User:Mtcv

Licence: Creative Commons Attribution Share-Alike 2.5 Generic
Source Wikipedia Dover

Jane Lambert

As the Johnson administration's precondition for the resumption of talks on a withdrawal agreement within the meaning of art 50 (2) on the Treaty of European Union is one that the remaining EU member states cannot possibly meet without undermining the raison d'être of the Union, it is imperative for businesses of all kinds and in all industries to plan for no deal.  Though it is often said that there is a majority in Parliament against no deal, the only way MPs can prevent it is by forcing a general election through passing a vote of no confidence in accordance with s.2 (3) of the Fixed Term Parliaments Act 2011 and by the country's returning a government with a mandate to remain.  That will require an enormous act of political courage on the part of remain minded Conservative MPs and a very effective general election campaign by remain politicians.

Two reports that businesses will find useful have been published this week by the Institute for Government ("IfG") and the CBI. 

The IfG's report, Preparing Brexit: No Deal, by Joe Owen and others, starts from the premise that "no deal would not be the end of Brexit."  It adds:

"The UK will be out of the European Union, but the all-encompassing job of adapting to the new reality and building a new relationship with the EU will still be incomplete. The biggest questions Brexit will still need to be settled. The difficult choices that have been unresolved for the last three years will not evaporate overnight on the 31 October. And Brexit will remain the key dividing line in a Parliament in which Johnson’s government has a wafer-thin majority, and one that is constantly under threat."

It maps out the likely political and economic scenario for the period up to 31 Oct, the immediate aftermath and the months following brexit.

The CBI's What comes next? The business analysis of no deal preparations by 15 of the Confederation's specialists in offers more focused business-orientated advice.  Its message is as follows:

"First, it’s time to escalate preparations. Having analysed Brexit preparations by the UK government, the European Commission, EU Member States and companies in the 27 areas of the UK’s relationship with the EU that are most important to businesses, the CBI has concluded that no one is ready for no deal. 

Second, preparations can have a material impact. Working with its member businesses and Trade Associations, the CBI has compiled over 200 recommendations for reducing the harm of no deal. 

Third, many no deal mitigations rely on negotiations between the UK and the EU, which will hold all the political difficulties experienced in talks so far."

Like the  IfG, the CBI warns that "many of the consequences of no deal will be felt for years to come."  Hopes on the part of the government or indeed the long-suffering British public that getting brexit over the line will put the matter to rest are likely to prove forlorn.

There are several other issues upon which the CBI and IfG appear to agree. One is shifting government onto a no-deal footing.  Another is that Northern Ireland is likely to be affected more than anywhere else in the UK and unless a power-sharing agreement on restoring devolved government can be reached between the Democratic Unionist Party and Sinn Fein very quickly legislation will be required to reintroduce direct rule into Northern Ireland.  Far from supercharging the economy, there will be vast swathes of British industry that will require support.

Anyone wishing to discuss this article or the legal consequences of brexit generally (particularly with reference to IP) should call me on 020 7404 5252 or send me a message through my contact form.