Brexit: Now What? Part III

[Newtons Bit]

No they weren't, hence the discussions now. EU citizens have their right to remain in the UK (and vice versa) as a result of the UK being an EU member. Once we're not, then all that in theory goes out of the window and they have no right to be there because they haven't been through the proper process.

The expectation is that their right to remain will continue but it's not clear whether there will be some sort of cut off date. It's almost unthinkable that my friend Trine who has been in the UK for over 30 years will be deported back to Denmark (not least because the NHS will still require her services) but as a foreign citizen she has no automatic right to remain.

A group which will be very carefully looked at I expect are those who arrive after Article 50 was triggered, will they be sent home ?

Right, and I understand that no one thinks those are legal obligations that are automatically preserved. But I'm trying to understand why those rights and obligations currently under the treaty are exempt from VCLT Article 70 but the financial commitments the UK made for things that are a decade or more in the future aren't exempt.

 

[Archie Gemmill Goal]

The EU went from 60Billion to 100 Billion in a couple of days, and Mr. Barnier himself has said he doesn't know the final figures yet either. They're discovering what they think are the demands as they go. While that's different behavior than what the UK is doing, it's still a symptom of the same problem: neither one has a complete picture of who was paying what.

Completely disagree. One is a symptom of not yet having a full picture the other is a symptom of not having a clue.

Imagine two people deciding what's for dinner. One says I have eggs I will make an omelette what else is in the cupboards... Tomatoes. Ham. Cheese. Do I have peppers?

The other says I'm not having eggs!!!!!! No eggs for me. No way. Not eggs. Eggs no. No no no no no.

Which one will eat first?

 

[Newtons Bit]

Completely disagree. One is a symptom of not yet having a full picture the other is a symptom of not having a clue.

An incomplete picture that includes things farming subsidies, loans guarantees to Ukraine, financial aid to the Sultanate of Turkey, denial of all real estate assets, etc...

Imagine two people deciding what's for dinner. One says I have eggs I will make an omelette what else is in the cupboards... Tomatoes. Ham. Cheese. Do I have peppers?

The other says I'm not having eggs!!!!!! No eggs for me. No way. Not eggs. Eggs no. No no no no no.

Which one will eat first?

A negotiation which two parties are trying to come to a mutual agreement has nothing to do with a race to have dinner.

 

[Archie Gemmill Goal]

An incomplete picture that includes things farming subsidies, loans guarantees to Ukraine, financial aid to the Sultanate of Turkey, denial of all real estate assets, etc...



A negotiation which two parties are trying to come to a mutual agreement has nothing to do with a race to have dinner.

We are not discussing a negotiation yet we are discussing understanding the bill. The UK doesn't have a position to negotiate. It has bluster.

Perhaps being incoherent is what may considers part of being a bloody difficult woman in negotiations but if so it's a tactic which will likely backfire.

 

[Newtons Bit]

I'm sensing some hostility....

 

[Aber]

We are not discussing a negotiation yet we are discussing understanding the bill. The UK doesn't have a position to negotiate.

You have never heard of a "deep and special relationship with the EU".

 

[GnaGnaMan]

Right, and I understand that no one thinks those are legal obligations that are automatically preserved. But I'm trying to understand why those rights and obligations currently under the treaty are exempt from VCLT Article 70 but the financial commitments the UK made for things that are a decade or more in the future aren't exempt.

Look around the world. What is better protected: Property rights or Human Rights?
It's far easier for governments to get away with murder and torture than with expropriation.

In particular, the VCLT governs treaties between states and does not apply to relations between states and individuals.

That said, I am certain that TheDon is wrong. In the very least, the ECHR means that British residents in the EU retain the right to stay and be treated equally to the local citizens.

 

[Darat]

Look around the world. What is better protected: Property rights or Human Rights?
It's far easier for governments to get away with murder and torture than with expropriation.

In particular, the VCLT governs treaties between states and does not apply to relations between states and individuals.

That said, I am certain that TheDon is wrong. In the very least, the ECHR means that British residents in the EU retain the right to stay and be treated equally to the local citizens.

For some residents I can understand the right to family life might apply but that would first of all have to be tested in the courts and then applied case by case.

 

[GnaGnaMan]

Untrue. It is not as if the 60 billion was born a few days ago, it has been floating for month. They only added 40 billion a few days ago. So saying that it went up in a few days is stupid sorry. What do you expect anyway ? That they add 200 million a day as a steady increase ? That would be more stupid.

The 60 billion figure was an early estimate floated by high EU officials. The EU has not floated any other figures.

The 100 billion figure is an estimate by the financial times based on their own work.

There is no basis for saying that EU demands have gone up or changed.

ETA: @Aepervius I could have quoted a number of posts to which to reply with this and picked yours basically at random.

 

[GnaGnaMan]

For some residents I can understand the right to family life might apply but that would first of all have to be tested in the courts and then applied case by case.

I looked this up again and I am certain that what I wrote is right. There are various arguments that could be made but in a nutshell:
Protocol 4 Article 4:

Prohibition of collective expulsion of aliens
Collective expulsion of aliens is prohibited

WP tells me that the UK never signed this protocol, nor a number of others. Apparently the concept of human rights simply jars with the english legal tradition. ETA: I wasn't quite aware how much weaker human rights protections are in the UK.
Still, is it imaginable that the UK could legally expel even a few tens of thousand of foreigners for no compelling reason while most of Europe regards that as a human rights violation?

 

[Klimax]

I looked this up again and I am certain that what I wrote is right. There are various arguments that could be made but in a nutshell:
Protocol 4 Article 4:


WP tells me that the UK never signed this protocol, nor a number of others. Apparently the concept of human rights simply jars with the english legal tradition. ETA: I wasn't quite aware how much weaker human rights protections are in the UK.
Still, is it imaginable that the UK could legally expel even a few tens of thousand of foreigners for no compelling reason while most of Europe regards that as a human rights violation?

May is your answer.

 

[Aber]

The 60 billion figure was an early estimate floated by high EU officials. The EU has not floated any other figures.

The 100 billion figure is an estimate by the financial times based on their own work.

There is no basis for saying that EU demands have gone up or changed.

ETA: @Aepervius I could have quoted a number of posts to which to reply with this and picked yours basically at random.

Up to a point...

The 100 billion may be a FT estimate, rather than an EU figure, but it is a reflection of a change this week in the EU negotiating position, adding more CAP payments, and excluding any payments to the UK for its claims for a share of EU assets (excluding the nuclear waste which apparently we have to keep).

 

[GnaGnaMan]

Up to a point...

The 100 billion may be a FT estimate, rather than an EU figure, but it is a reflection of a change this week in the EU negotiating position, adding more CAP payments, and excluding any payments to the UK for its claims for a share of EU assets (excluding the nuclear waste which apparently we have to keep).

The FT is a reputable newspaper and I'm willing to believe that they have reliable sources. But there is still a world of difference between a negotiating position and what you actually believe you are owed.

 

[Aber]

The FT is a reputable newspaper and I'm willing to believe that they have reliable sources. But there is still a world of difference between a negotiating position and what you actually believe you are owed.

True.

However in negotiations there is an 'anchoring' issue. Once a number has been mentioned it is seen as a benchmark, and movements away from that number are seen as wins/losses for either side.

The initial EU position (on things like immigration , ECJ juridstiction etc as well as the bill) seems to have been pitched so high, that it is difficult to see how they can dramatically reduce the bill without looking as they have lost - there is little extra that they can claim the UK has agreed to, to justify reducing the bill.

And now the Daily Telegraph is now claiming to have seen minutes of a meeting in Brussels with EU lawyers saying that a Brexit bill is legally impossible to enforce.

 

[The Don]

Look around the world. What is better protected: Property rights or Human Rights?
It's far easier for governments to get away with murder and torture than with expropriation.

In particular, the VCLT governs treaties between states and does not apply to relations between states and individuals.

That said, I am certain that TheDon is wrong. In the very least, the ECHR means that British residents in the EU retain the right to stay and be treated equally to the local citizens.

You may very well be right, I was only really considering the position of EU citizens currently resident in the UK.

If Theresa May gets her way and Brexit also means withdrawing from the council of Europe, we'll no longer be covered by the ECHR

 

[McHrozni]

And now the Daily Telegraph is now claiming to have seen minutes of a meeting in Brussels with EU lawyers saying that a Brexit bill is legally impossible to enforce.

EU figured this one out already. Paying the bill is the ticket UK needs to enter negotiations on a trade deal. No payment, no negotiations.

No negotiations, no deal, obviously.

McHrozni

 

[Archie Gemmill Goal]

Indeed. There only seems to be three questions and two of them are only really if academic interest.

Is the 'bill' a legal commitment? Lawyers can discuss it till the cows come home

Is it enforceable? An interesting insight into the Tories if they argue that even though it's a legal commitment we can ignore it because you can't enforce it. But not actually key to outcome

The third and most relevant question is who would blink first in negotiations on it if it becomes as it seems to be a prerequisite for trade deals. It looks like the EU are prepared to play hardball here and to me it seems that the UK electorate is slowly. Wing softened up to see no deal as a victory for the UK against those unreasonable Europeans.

We didn't accept their ridiculous bill and saved 100bn and told them to stick their trade deal. We are free of their yoke and can trade on our own terms with whoever we please. We win again! Two world wars, one World Cup and one Brexit! Long live Churchill Maggie Cromwell and st George.

That's what strong and stable leadership means. Psychotic enough to self harm and actually believe you are doing something good.

 

[Aber]

The third and most relevant question is who would blink first in negotiations on it if it becomes as it seems to be a prerequisite for trade deals. It looks like the EU are prepared to play hardball here and to me it seems that the UK electorate is slowly. Wing softened up to see no deal as a victory for the UK against those unreasonable Europeans.

The EU starting position is agree the bill before we start talking about a trade deal, with a little wriggle room (progress on agreeing principles for fixing the bill amount).

The UK starting position is not 'nil payment and a trade deal'. It is 'no deal is better than bad deal' ie we'll pay something but only if the trade deal on offer is worth it.

There is probably a route forward to a compromise on the bill. For reference 100bn is roughly 6 years of current UK membership bill.

More problematic is the EU position on EU citizens rights in the UK, where it wants them for not only current residents but anyone who has ever been resident.

 

[GnaGnaMan]

True.

However in negotiations there is an 'anchoring' issue. Once a number has been mentioned it is seen as a benchmark, and movements away from that number are seen as wins/losses for either side.

The initial EU position (on things like immigration , ECJ juridstiction etc as well as the bill) seems to have been pitched so high, that it is difficult to see how they can dramatically reduce the bill without looking as they have lost - there is little extra that they can claim the UK has agreed to, to justify reducing the bill.

That's good for the UK, isn't it? Even the most obvious common sense demands have been met with ridiculous histrionics in the british press. That they exaggerate EU demands gives them room to declare victory when (or if!) the UK government negotiates sensibly.

And now the Daily Telegraph is now claiming to have seen minutes of a meeting in Brussels with EU lawyers saying that a Brexit bill is legally impossible to enforce.

Paywall. But from what is reported elsewhere on the story that is an incorrect summary.

 

[Aber]

That's good for the UK, isn't it? Even the most obvious common sense demands have been met with ridiculous histrionics in the british press. That they exaggerate EU demands gives them room to declare victory when (or if!) the UK government negotiates.

No.

I'm not taking the summary of the current EU demands from the UK press but from the EU negotiating guidelines, and yes the EU positions look extreme. The problem is that the EU has to move a long way before they get to a position that the UK could accept. It doesn't matter to me who wins or loses the negotiations but whether both sides can get to a sensible compromise.

The EU position only makes sense if you frame the discussions as the UK having been part of a EU state, but now declaring independence. In that case then the EU focus on defending rights that EU citizens have had like residence rights in the UK, UK Pension rights, recognition of professional qualification etc makes more sense. However the UK (and international law) sees it as the UK leaving a supranational body, and it is very difficult to reconcile the 2 views.

Either that or the EU does not want an agreement at all to penalise the UK for leaving.