Yesterday, Prime Minister Theresa May gave a much-trailed speech purporting to flesh out some ‘detail’ – that most hated and troublesome concept for Brexiteers. On data protection law and institutions, she said:
“But the free flow of data is also critical for both sides in any modern trading relationship too. The UK has exceptionally high standards of data protection. And we want to secure an agreement with the EU that provides the stability and confidence for EU and UK business and individuals to achieve our aims in maintaining and developing the UK’s strong trading and economic links with the EU.
That is why we will be seeking more than just an adequacy arrangement and want to see an appropriate ongoing role for the UK’s Information Commissioner’s Office. This will ensure UK businesses are effectively represented under the EU’s new ‘one stop shop’ mechanism for resolving data protection disputes.”
This basically summarises the UK’s position since last August:
“After the UK leaves the EU, new arrangements to govern the continued free flow of personal data between the EU and the UK will be needed, as part of the new, deep and special partnership. The UK starts from an unprecedented point of alignment with the EU. In recognition of this, the UK wants to explore a UK-EU model for exchanging and protecting personal data, which could build on the existing adequacy model, by providing sufficient stability for businesses, public authorities and individuals, and enabling the UK’s Information Commissioner’s Office (ICO) and partner EU regulators to maintain effective regulatory cooperation and dialogue for the benefit of those living and working in the UK and the EU after the UK’s withdrawal.”
It is pretty straight down the line UK positioning.
So, ‘you need us at least as much as we need you?’ Tick. Though I’d be surprised if the data flow volume is symmetrical.
‘Believe us when we say we’ll have perfect regulatory alignment while also making the UK more innovative and flexible?’ Tick. Despite its dicking around with the GDPR implementation – especially the huge carve-out that slashes data protection for any non-UK citizens – UK will at least start with a more or less guaranteed adequacy finding that says its data protection regime is enough for transfers to continue.
And ‘We will of course leave the EU and all its institutions, but still expect an influential role in determining future policy and EU law.’ Tick. Magnificent cake-ism, really. Entirely consistent with the rest of the UK’s negotiating stance. Theresa May really believes the 27 member states need the UK’s input on data protection so much, that they’ll let its regulator, the ICO, continue to take part in coordination procedures, and also continue to water down data protection for everyone else.
Because watering down DP is essentially what the UK does; it channels Big Tech. Or, alternatively, backstops Ireland when Ireland fronts for Big Tech. The biggest supporter of the UK continuing to have some institutional rule-setting involvement in EU DP is, unsurprisingly Big Tech. The Register reported late last year that:
“The advertising lobby and tech megacorps including Facebook and Twitter are pushing for the UK’s data protection watchdog to have full voting rights on a new, powerful European board after Brexit.”
The other interesting little nugget here is that the UK still wants to be beholden to a supra-national legal authority, but only when it comes to intellectual property and data protection. Apparently the Conservatives’ vehement objection to the European Court of Justice is not one of principle but a flag of convenience. Theresa May said yesterday:
“We will want our agreement to cover civil judicial cooperation, where the EU has already shown that it can reach agreement with non-member states, such as through the Lugano Convention, although we would want a broader agreement that reflects our unique starting point. And our agreement will also need to cover company law and intellectual property, to provide further legal certainty and coherence.”
We’ll let the lawyers argue that one out, but it certainly sounds as if the UK wants “certainty and coherence” for business, just not for citizens.
Finally, the UK’s subservience to the ECJ while still in the EU also means, oddly enough, that its massive carve-out from DP rules for state security surveillance has at least a fig-leaf of oversight that lets everyone pretend the UK’s DP regime is sound. (France is in the same position, minus the routine passing of terabytes of personal data to US intelligence. They send some, but not essentially all.) But if the UK leaves the jurisdiction of the ECJ – something Theresa May has long wished for, Remainer or not – then the fig-leaf falls away and, well, I’d rather not belabour the metaphor about what will then be exposed. Short version; yet another way the UK will find itself unable to continue doing things that now seem perfectly normal, if unpleasant, in ways that are tolerated by other EU member states. The unintended but perfectly foreseeable consequences of cherry-picking.
A couple of observations:
• The UK’s consistent and systematic work to weaken data protection in Europe was largely tolerated when it was a member of the club, seeking in good faith – sort of – to make DP rules workable in the real world and applicable in a common law jurisdiction. Tolerance for the UK’s campaign to weaken DP will all but go away if the UK is outside the tent, pissing in. Yes, I can absolutely see why the UK wants to help set the rules it may be bound by – a House of Lords select committee recommended this already last year – but why would, say, the European Data Protection Board (the old Article 29 WP, as was) allow the UK to participate as more than (or even?) an observer? And then, how could the UK be allowed to be part of – even as an observer – a body that was to rule on its own adequacy finding?
• A data protection adequacy finding – saying Britain’s laws are close enough to the EU’s on data protection and/or achieve the same objectives – is highly likely on the UK’s leaving the EU. (Although there is still a small chance for some funny business, as the DP Bill slashes protections for the three million EU citizens in the UK.) But as the UK diverges over time, adequacy will be harder to prove and will likely be contested by EU member states as the UK tries to gain advantage from bending or just re-writing the rules. It gets to the essential paradox of Brexit; aiming to have all the same lovely trade and rules and a ‘deep relationship’, but having to re-invent the rules with a tenth of the staff and expertise while also, somehow, carving out a global position as a low-regulation, tax haven. With DP as with Brexit more generally; if you design a new IT system, you can have it be just two of ‘good, fast and cheap’, but not all three. With Brexit, you can have smooth flow of goods/data/services/people, you can have total control and sovereignty, or you can have cake. But you can’t have all three. Or something.
• Future adequacy findings will be harder and harder to get. In 2002-2003, I was involved in a project of the International Chamber of Commerce to develop alternative model contract clauses to the European Commission’s ones. The idea was to get Commission approval for clauses that somehow matched the Commission’s own ones, in terms of meeting the EU DP rules in a way that allowed companies to contractually bind themselves and third parties to respect the rules and so allow data-flows to non-adequate, non-Safe Harbor countries. (In practice, it was to give another way for US firms to do transfers.) We went back and forth for two years. Every way the lawyers could think of to make the contract clauses less onerous than the Commission’s ones was – surprise! – rejected by the Commission. The UK is trying to slither out of the whole body of law and oversight system, while still having involvement in rule-setting, while it is perfectly obvious that the UK’s aim is to have less onerous rules and easier to end-run oversight. Guess how the EU is going to react?
• The rules will diverge. The Home Office and DCMS just will not be able to help themselves in weakening protections or simply responding differently to different conditions. And as a single country, the UK will be much less able to resist the pressure from Big Tech. (We’ve seen this already with Google’s Deep Mind being given free access to confidential NHS patient data.) Even if the UK’s ruling elite was not stepping in and out of lobbying jobs at large tech firms; even if the UK was not ideologically/culturally disposed to assume business knows best, the UK would still roll over under pressure from tech firms because it will be standing alone. Just look at one of them: Apple’s wealth pile alone is greater than the combined foreign reserves of the British government and Bank of England., and its valuation of almost a trillion dollars is over a third of the UK’s entire GDP (2.6 trillion USD). Both because its elites want to and because it couldn’t resist anyway, Britain’s DP rules will come to resemble what US tech firms want in a serf country.
• So, at its moment of greatest strategic weakness, the UK is trying to insist not just that the EU change its current DP rules to suit the UK – that’s just business as usual, and part of the normal rule-making process – but to commit to weakening future protections for EU data transfers, AND developing a whole new system for facilitating the UK’s future influence on the rules. Cake-ism of the highest order.
Anyway, much of the information here comes from the Open Rights Group, albeit the editorialising is mine. Full disclosure: I’ve just stepped down from the Board of ORG and am still on their advisory list. ORG is compiling information relevant to yesterday’s speech here.
There’s a whole piece, and more, to be written on how this pertains to Ireland’s infamously lax DP enforcement and how isolated Ireland may be in the new European Data Protection Board. But it’s Saturday and my guilt about a dirty house now weighs heavier than that of not having written on CT for way too long. Equilibrium restored.
{ 62 comments }
Luis Villa 03.03.18 at 3:36 pm
“a data protection adequacy finding – saying Britain’s laws are close enough to the EU’s on data protection and/or achieve the same objectives – is highly likely on the UK’s leaving the EU.”
I wouldn’t be so sure about that. Spying activities done by an EU government are not relevant to an adequacy determination; spying by a non-EU government (say, a member of Five Eyes) is relevant. So completely plausible the UK would be found inadequate.
Chris Bertram 03.03.18 at 4:50 pm
Worth noticing too that the UK is introducing wide exemptions from data protection when it comes to immigration control. Roughly, they can look at what they want if immigration enforcement is the pretext and you have no rights to know what they have on you or to correct their erroneous records. The UK is currently in the process of looking at *everyone’s* bank accounts (or rather a private contractor acting for the government is) as part of its “hostile environment” policy. For more see:
https://www.theguardian.com/commentisfree/2018/feb/05/brexit-data-protection-rules-immigrants?CMP=Share_AndroidApp_Tweet
Maria 03.03.18 at 5:16 pm
Indeed, Luis. I’ve heard a lot of muttering over the past year about that, but don’t know how to evaluate it – hence the ECJ fig leaf point above. A post-Brexit Schrems-type challenge to any tech firms allowing EU citizen data to go through the UK could be curtains.
Chris – yes, with bells on. I mentioned the carve-out in the DP Bill and I wonder if it would have a strong bearing on an adequacy finding. If EU citizens in the UK can no longer rely on the ECJ to define and protect their rights, it could be game over. (They’re obviously not the only immigrants affected, but they may have some formal leverage non-EU people don’t, on this.) You will be happy to hear people are joining the dots, ORG included. Watch this space.
John Holbo 03.04.18 at 5:24 am
“We’ll let the lawyers argue that one out, but it certainly sounds as if the UK wants “certainty and coherence†for business, just not for citizens.”
Ouch.
Dipper 03.04.18 at 9:12 am
Maria
“If EU citizens in the UK can no longer rely on the ECJ to define and protect their rights, it could be game over.”
Giving certain citizens in the UK extended legal rights above other citizens as the EU is currently demanding would be a breach of Article 7 of the Universal Declaration of Human Rights “All are equal before the law and are entitled without any discrimination to equal protection of the law.”
Maria 03.04.18 at 9:38 am
How long do you have, Dipper, for us to sit together and recount all the ways the UK violates UDHR…?
Maria 03.04.18 at 9:46 am
Personally, I’d start with indefinite detention of asylum-seekers. Gross violation, no access to redress. But anyway, you see the point.
novakant 03.04.18 at 10:28 am
@5
The UK has been in breach of the UDHR and numerous EU directives for a long time and cannot be trusted to even enforce the current laws it is bound by, so the ECJ overseeing EU citizen’s rights is a necessity. But hey, it’s a negotiation – you can have a hard Brexit tomorrow and start deporting people, if that’s what you want.
Layman 03.04.18 at 10:54 am
Dipper: “Giving certain citizens in the UK extended legal rights above other citizens…â€
Isn’t anxiety that some foreigners might be allowed to stay under circumstances other than second-class status a pretty obvious tell about the Brexit motivations of some people?
On data protection, if the EU can permit transfers to the US, I’d say there’s no very good reason why they can’t permit transfers to the UK. Safe Harbor compliance is relatively easy and, in my experience, not actually very constraining. Though of course the EU has much more incentive to look the other way with the US than it does with post-Brexit UK.
Chris Bertram 03.04.18 at 11:04 am
Unwise of Dipper to play the barrack-room human rights lawyer here, I think. Article 7 gives protections to human beings as such, not privileged status to citizens, and is therefore at odds with many governments’ attempts (the UK being a particularly egregious case) to deal with irregular migration (such as the UK’s hostile environment policy). The UK’s minimum income requirement for spousal visas would be another area where some citizens have rights (to live with their partner in the country of their choice) which others lack on grounds of income.
Collin Street 03.04.18 at 11:43 am
Roughly, they can look at what they want if immigration enforcement is the pretext and you have no rights to know what they have on you or to correct their erroneous records.
Which is to say: they value not being contradicted higher than they value being correct.
I see no physical way a person can act like that without having crippling cognitive/emotional problems. There’s no scope for that being a reasonable action.
Dipper 03.04.18 at 12:31 pm
Yes of course there’s lots of good points that can be made about Human Rights and immigration, and I look forward, in hope rather than in expectation, to a clear enunciation on here of an immigration policy and process that is both humanitarian and principled but not simply an open door for anyone from anywhere to come here for any stated reason.
The fact remains that the EU in demanding legal oversight of its citizens in the UK is acting as a colonial power by demanding that UK citizens become legally second-class citizens in their own country. That stands alone as a demand, and resorting to whataboutery or imputation of dark motives to try and avoid addressing this aspect of the negotiations isn’t convincing anyone.
John Quiggin 03.04.18 at 12:36 pm
The persistence of cake-ism leads me to think it more and more likely that Brexit won’t happen. If the government were serious about Brexit they would by now be either
(a) offering something that the EU isn’t going to reject out of hand; or
(b) seriously preparing for a no-deal exit in March 2019.
As Maria shows, they aren’t doing (a) in data protection, nor AFAICT. As for (b), they’re not even building a lorry park at Dover, which shows that they don’t have a credible threat option. http://www.huffingtonpost.co.uk/entry/operation-stack-brexit-dover-customs_uk_5a0c9f64e4b0b37054f417dd
In the absence of any credible alternative, it’s hard to see how they can hold out against the pressure for a customs union. But getting goods flowing smoothly at Dover and across the Irish border will need more than just a customs union, including common phytosanitary regulation and so on. That gets a fair way back towards the Single Market.
Of course, there’s a fair chance the government will fall in this process, presumably taking May’s red lines with it. Any new government would need a lot more time than the current process allows, given zero progress in the time since the referendum.
Layman 03.04.18 at 1:12 pm
Dipper: “The fact remains that the EU in demanding legal oversight of its citizens…â€
Well, the EU didn’t create this situation, and the EU didn’t promise that existing EU citizens in the UK could remain with more or less their current status and rights. The UK did those things, without also explaining how that status and those rights would be guaranteed. So of course the EU has ideas about how do do it.
This is of a kind with the question of Northern Ireland. The very idea of Brexit is that there will be a hard people and goods border between the UK and the EU. The UK says that there will be no hard border between Northern Ireland and Ireland, but they do not say how this conundrum will be solved, nor do they say where the hard border required by Brexit will in fact be located. The EU offers a suggestion, and the Brexiters go bonkers.
But it is not the fault of the EU that the UK has created this mess and is incoherent in explaining how they’ll deal with it. And the UK and Brexit leadership are incoherent largely because there is no solution to the problem, and everyone knows it but none of them want to say so. Brexiters who cannot articulate a solution to insoluble problems will simply blame the EU for ‘demanding’ one thing or another instead, as Dipper does.
Layman 03.04.18 at 1:17 pm
JQ: “The persistence of cake-ism leads me to think it more and more likely that Brexit won’t happen.â€
Either that, or the May government is basically playing chicken, assuming that when the crisis comes the EU will offer concessions to prevent the disaster. What this cake-ism concession would look like is a total mystery of course, but May continues to insist that there is some way to be out of the EU while enjoying all the benefits of being in it. Maybe she actually believes that, and thinks the EU will blink. Or maybe she knows the situation is impossible, but also knows saying so will destroy her government.
Dipper 03.04.18 at 1:18 pm
“‘detail’ – that most hated and troublesome concept for Brexiteers.”
There are two reasons Brexiters don’t do detail.
The first is that in my understanding of UK law, UK law sets down basic principles, e.g. “goods shall be fit for purpose” so the negotiations on detail happen after the agreement, whereas European law defines in detail upfront the regulations about what fit for purpose means and how it is demonstrated, so there is a fundamental mis-understanding over when to do the detail.
The second reason is the the UK regards EU going on about detail as a delaying and obfuscation tactic, rather like some online commenters just keep moving from point to point bringing up issues in a never-ending cycle refusing to agree on any specific point. They are not negotiating in good faith.
The negotiation has, from the start, had the hallmarks of failure over them and each side is not trying to get agreement but attempting to justify to their own sides why there is no deal. For the EU it is the UK never properly asked for what they wanted within the constraints of leaving the EU. For the UK it is that we offered them as much as we could but they refused to properly negotiate in good faith.
Z 03.04.18 at 1:22 pm
Dipper I look forward, in hope rather than in expectation, to a clear enunciation on here of an immigration policy and process that is both humanitarian and principled but not simply an open door for anyone from anywhere to come here for any stated reason
I honestly fail to see the dilemma you are apparently presenting. You seem to agree that if we want to be true to basic humanitarian principles, then a broad freedom of movement and settlement is the way to go. OK, welcome. Now, there are practical objections – mainly political ones – i.e you and I have work to do to convince our fellow citizens, but what is the supposed downside to this “immigration policy and process that is both humanitarian and principled”? Isn’t that what we want?
The fact remains that the EU in demanding legal oversight of its citizens in the UK is acting as a colonial power by demanding that UK citizens become legally second-class citizens in their own country.
Only if the UK wants to have access to the single market, Dipper. Otherwise it could go its own separate way. And though that may not be playing nice on the EU part (for surely they are not playing nice, and don’t expect them to start soon), hearing someone from the f**** United Kingdom complain that a foreign power is requiring f*** colonial terms in exchange to access to its economy is… OK let me go with interesting, historically speaking.
John Quiggin Of course, there’s a fair chance the government will fall in this
process
Isn’t that more or less the plan (honest question)? The hard-Brexit camp is hoping that Labour (ideally in the Corbyn incarnation) will be in power when it will be necessary to rush in a single market deal with no voting power and then they will blame his government for being ruinous traitors. The only other alternative I can contemplate that would account reasonably for their actions is that they are completely insane and actually believe their own rhetoric. The case of Jacob Reese-Mogg is quite interesting in that respect, clinically speaking.
John Quiggin 03.04.18 at 3:09 pm
@15 If they were playing chicken, wouldn’t they make more noise about preparing for a no-deal outcome? May even dumped the idea of a dedicated “No Deal” minister, that was floated in January http://www.independent.co.uk/news/uk/politics/cabinet-reshuffle-latest-brexit-minister-theresa-may-appointment-no-deal-great-uk-suella-fernandes-a8151421.html
novakant 03.04.18 at 3:23 pm
There are two reasons Brexiters don’t do detail.
Yes indeed:
You don’t have the slightest idea how this is supposed to work and, except for satisfying some infantile notion of national pride, you don’t care what’s going to happen to the UK.
Dipper 03.04.18 at 3:36 pm
@ John Quiggin. “wouldn’t they make more noise about preparing for a no-deal outcome?”
To my earlier point, loudly preparing for a no deal outcome is to appear to be negotiating in bad faith. You have to give the appearance of being committed fully to the success of the negotiations so that when you fail you can say, hand on heart, you could have done no more.
Anyway, when it comes to having a non-hard border with the RoI, we don’t have to do any work because the EU has already done the hard work for us
Layman 03.04.18 at 3:47 pm
@JQ, maybe they want to arrive at the brink of a precipice with no backup plan? Because they believe that will force the EU to relent? Of course, that raises the question of what ‘relent’ looks like, since what the UK says they want is suicide for the EU.
I don’t say this is a rational negotiating strategy, but there’s no rational explanation for what they’re doing.
Layman 03.04.18 at 4:26 pm
Dipper: “Anyway, when it comes to having a non-hard border with the RoI, we don’t have to do any work because the EU has…â€
Not really, no. That document sidesteps of the political question of who and what is permitted to move freely across the border.
TM 03.04.18 at 8:36 pm
Dipper 12: “the EU in demanding legal oversight of its citizens in the UK is acting as a colonial power by demanding that UK citizens become legally second-class citizens in their own country”
One can come to this conclusion only if one considers UK laws and UK courts second class.
Side note, have you ever heard of ISDS? Under ISDS agreements, which cover most countries, domestic companies are indeed treated as second class: only foreign corporations can sue governments in ISDS courts, which themselves are offshore corporate entities without oversight or accountability. If ever there was a case against “foreign judges” undermining the sovereignty of nation states, ISDS is it. Yet this case is never ever heard from the Brexit crowd or their analogs in other countries. Never ever. They hate the idea of human rights enshrined in international law and enforceable by an international court but they have no objection whatsoever to corporate interests enforced by corporate Kangaroo courts.
bruce wilder 03.04.18 at 9:02 pm
novakant: “You don’t have the slightest idea how this is supposed to work . . .”
That’s it, of course.
This a fundamental political problem characterizing all sides in our time: in other contexts, we can refer to it as the neoliberal dogma: There is no alternative.
In the case of Tories “managing” Brexit, like Trump trying to seem Presidential, we see the farcical absurdity displayed.
Britain presents a fascinating case study in the struggle to find some new political alignment.
Chet Murthy 03.04.18 at 9:38 pm
@Dipper:
Uh, maybe read a book on negotiation? It’s called “BATNA” (Best Alternative To a Negotiated Agreement). The more you convince your counterparty that you’re prepared for failure, the less-likely that failure is going to happen. Whereas, what the UK is doing, is throwing themselves on the mercy of the court. Geez, what losers.
I’m an American, and we …. have covered ourselves in shit, so I shouldn’t be pointing-and-laughing, but geez, everything everybody writes about the fundamental non-sense-ical-ness of the UK Brexit stance is 100% true.
(1) If the UK is leaving the EU, there will be a hard border. Geez, Theresa/Liam/David/Boris/Nigel, pick where you want it, but stop with the bullshit that “it won’t be between the Irish Republic & NI, and it won’t be in the Irish Sea”. It’s gonna be one or the other.
(2) The EU is playing this exactly right: every concession they make over-and-above the trading status of … say …. Costa Rica …. is a gift to the UK. And so the EU is shoring up their BATNA, making it clear that if the negotiation fails, they’re OK.
Old Carl Sandbug quote:
The UK, it seems to me, is reduced to pounding the table. Not a good look.
Chris M 03.04.18 at 10:15 pm
Reading this post, I can only conclude that Brexit will not be only far less worse for the EU, but getting rid of the Tories is an active, positive good for us on the Continent.
Still you and the other EU citizens, as well as the remainers shouldn’t have to suffer this farce.
Guano 03.05.18 at 12:05 am
Dipper 12: “the EU in demanding legal oversight of its citizens in the UK is acting as a colonial power by demanding that UK citizens become legally second-class citizens in their own countryâ€
Dipper – have you ever thought what it must be like now to be an EU citizen in the UK?
J-D 03.05.18 at 1:48 am
Dipper
I am curious to know on what the basis is for your understanding of how UK law works, and how it’s different from European law. To me it seems unlikely to be accurate; I could go on at some length to explain my impression if anybody’s interested, but I don’t know that anybody is. I am definitely interested in knowing what your understanding is based on, if you can explain it.
Chet Murthy 03.05.18 at 3:34 am
But none of this is even *relevant*. B/c the agreements around Brexit aren’t UK law, and they’re not European law. They’re *international treaties*, mang. And such things need to be -detailed- and -precise-, eh? The UK is going to be a *third country*. The entire *idea* that “oh, this is how UK law works, we pay deference to that” is already offensively chauvinistic — who *cares* what the effin’ hell the UK does internally? What *matters* is how international treaties work. That is *all* that matters.
Again, I find myself smdh at Brexiters. Chris Grey is exactly right — they were completely unprepared for their success, and they remain thus unprepared. They’ve done nothing, b/c deep down inside, they don’t want to have won. What they wanted, was to remain in the EU, but close enough to Brexiting, that they could dine out on it for years and years. It was all a Godforsaken grift.
It’s Poe’s Law, European edition.
J-D 03.05.18 at 4:09 am
Dipper
Do I need to point out that ‘detail’ and ‘specific point’ are not opposites? The opposite of ‘specific’ is ‘general’ and the opposite of ‘detailed agreement’ is ‘general agreement’. Agreeing on specific points and agreeing on details are the same thing. If there is a negotiator who says ‘I want to agree on specific points but I don’t want to discuss details’, I can only think of two explanations for that negotiator’s behaviour: bad faith; or extraordinary obtuseness.
On the other hand, if a negotiator says ‘We can’t deal with every detail at once, I want to try to settle things one at a time’, that’s not bad faith. If the UK is saying, ‘We want to settle X before proceeding to deal with Y’, and the EU is saying, ‘We can’t settle X until after we’ve dealt with Y’, then there’s a genuine problem even though both sides may be in good faith. But I don’t know that to be the case. I don’t even know what X and Y might be.
Dipper 03.05.18 at 8:30 am
Whenever I read CT or similar leftish-academic sites these days I feel I’m in 1989 reading members of the East German Communist Party explaining why leaving the Warsaw Pact is impossible. “Where are your five year plans?”. “The Soviets will punish you for this!”
But to give your comments more consideration than they deserve:
@ Chet Murthy. “Hard” and “soft” borders are to some extent fictions. There is already a border between NI and RoI due to different tax regimes. The discussion is how to minimise disruption. I may not be on top of the detail but this person is.. The paramilitaries responded to this outrageous and divisive difference in taxes and duties not by resorting to violence but by resorting to smuggling.
@Chris M well I guess as of this morning you on the continent have other things to worry about. AfD the main opposition in Germany, Italy’s largest party set up by a clown. The writing is well and truly on the wall if only you can bring yourselves to read it.
Z – it is precisely because of the UK’s colonial past that we understand you can only rule people against their wishes for so long. In the end, you will have wars of liberation against you. And no, we really don’t want Corbyn in power. Ever. Under any circumstances.
@ Guano. Yes of course. And that is reasonably covered in UK newspapers. But there are lots of variations on this. Did EU negotiators ever think what it would be like to be a UK citizen in a northern post-industrial town? The hierarchy of who has to imagine being whom is revealing.
@ J-D Frankly I’m surprised at you. Here
@ Chet Murthy. Sigh. to state the obvious, it was Cameron backed up in parliament by a 6:1 majority who called the Referendum and put the choice to the people and was completely unprepared for one of the options to be chosen. And I feel I should get a tee shirt with “I voted to leave the EU because I wanted to leave the EU” on it. The problem here is that the majority of the executive and commentariat as well as 48% of the electorate wished to remain in the EU and elements are actively conspiring with the EU to prevent what parliament promised and the people voted for being put into effect. So simply walking away is not possible without demonstrating to those 48% that, despite the UK’s best efforts, there is no satisfactory half-way house.
And Chris Grey. Let us not even go there. What are the power constructs going on behind that blog? What role do I have in Chris Grey’s world other than being perennially lectured on my inferior brain and lesser status because I don’t agree with him?
So there we have it people. Frankly I feel I should get paid for this.
J-D 03.05.18 at 10:39 am
Dipper
There must be many people in the world who are not familiar with the distinction between civil-law systems and common-law systems, so I’m not sure why it would surprise you if I turned out to be one of them. As it happens, I’m not. I am aware that in civil-law systems, statements about what the law is rely for their authority on reference back to statutes; whereas, in common-law systems, statements about what the law is rely for their authority on reference back to statutes and to past court decisions What I can’t figure is how you get from there to ‘negotiations in detail happen after the agreement’. That’s no more accurate as a description of how, for example, contracts are made in common-law systems than it is as a description of how contracts are made in civil-law systems. There’s no rule of English common law about any category of legal documents that requires them to begin with general principles or that bars them from being highly prescriptive in detail.
I see that somebody above has suggested that you should read a book about negotiation. The suggestion made me think of something I read online a long time ago, and on checking I find that it’s still available:
http://uk.diplom.org/pouch/Zine/F1997R/Windsor/lawdip.html
That was written twenty years ago, by a lawyer; he describes himself as an attorney, so I imagine he’s probably a US lawyer. He refers to his experience in contract negotiation, and the article cited above is one in which he’s suggesting how his professional experience can be applied, in non-technical ways, to a recreational activity where negotiation is very important. Readers not familiar with the boardgame Diplomacy will likely find much of what he writes hard to follow, but he has some general observations about what leads to success in negotiation, and if he’s right, then it seems you’re wrong:
‘Always Start With Your Own Proposal
… Psychologically, if the negotiation begins with your proposals, it’s likely to proceed from your perspective and not the other guy’s. The end result is much more likely to be in your favor under such circumstances. … Always be the first to present the contract. By doing so, you are taking the initiative in setting the terms of the deal for the remainder of the negotiations.
Make Detailed Proposals
Another very common mistake … is a failure to provide sufficient detail … Most proposals are unacceptably vague … One common answer is: it goes without saying. Not in my experience. Say it. Say all of it. In detail. Every turn. …’
To me it seems as if the EU is following this kind of strategy, and to me that makes it seems that they’re serious about negotiating the most favourable outcome they can get. On the other hand, to me it seems as if the UK government is not following this kind of strategy, and to me that makes it seem that they’re not serious about negotiating the most favourable outcome they can get. I’m not saying this must be true just because of one US attorney’s twenty-year old comments. He’s fallible, and so am I. But then, so are you, and I can’t figure what your ideas for a superior negotating strategy are, or why you think it’s superior.
John Quiggin 03.05.18 at 1:20 pm
“well I guess as of this morning you on the continent have other things to worry about. AfD the main opposition in Germany, Italy’s largest party set up by a clown. The writing is well and truly on the wall if only you can bring yourselves to read it.”
Your side is certainly having some wins, as you did with Trump also. But, as the Brexit farce and Trump’s presidency have shown, you don’t have any solutions, just ethno-nationalist nostalgia. The failure of neoliberalism isn’t going to be fixed by racism.
Dipper 03.05.18 at 1:35 pm
@ J-D
yes fair points and I would have preferred a different style. But I don’t think a text-book negotiating stance would have made any difference. Those who thought from day 1 that the EU were not interested in negotiations feel they are being proved right. The EU are just talking the clock down. May is preparing the UK for what comes ahead.
@John Quiggin
Trump isn’t my Trump. AfD is not my party. I am neither a US nor a German citizen and do not know who I would have voted for. Cheap shots change no minds. J-D shows you how to do it.
Dipper 03.05.18 at 2:06 pm
On reflection I feel John Quiggin’s response deserves more than a snap back. It may be that Prof Quiggin read my instructions to the game “You’re a Racist!!” and was trying to start off a game on here, but on the off chance that he wasn’t …
Voters vote for people who they feel best represent them. Given the choice between nice people who clearly state they are looking to represent someone else and an ogre who represents them, they vote for the ogre. So take Jeremy Corbyn; he has announced policies of restricting freedom of the press, seizing private property, he takes money from Russia and Iran TV, he courts the attention of anti-semites and terrorists, he remains silent on human rights abuses in regimes who he favours. Yet he still polls 40%+. Pointing out all these things at the last election didn’t do much good, and pointing out at the next election doesn’t look like a winning formula either. People are moving to Corbyn because they see many failures in their current lives – high cost of housing, low funding of public services, visible poverty in many places, and he says he hears their concerns and has a plan to do something about it.
If the Tories are to win the next election, it won’t be by saying that everyone who supports labour is a terrorist supporting anti-semite, it will be through delivering policies and results that convince enough people that the Tories are a better party than Labour when it comes to delivering things that are important to them.
Tony Blair gave a clear example of this in his recent speech on why we were right to leave the EU. It was billed as a speech on why we should rejoin the EU, but in it he said this: “Blair … encouraged key figures in the EU to prepare a palatable way for the UK to come back into the fold should that reconsideration happen by proposing a comprehensive plan on immigration control”. If the EU were the kind of organisation that did that kind of thing, I would have voted to Remain, but it isn’t. It is their way or the highway. So the people of Europe are increasingly taking the only road available out of town. And if the only route happens to be a right-wing anti-immigration route, then that is the route people will take.
Z 03.05.18 at 2:19 pm
Dipper The writing is well and truly on the wall if only you can bring yourselves to read it.
For what it’s worth, I agree 100%. The EU has become a hierarchical system in which the weak suffer what they must and so is on a clear trajectory of ever deeper and more cruel political and social conflicts. But the inverse of stupidity is not ipso fact intelligence. So I also agree 100% with John Quiggin: the conservative, nativist political reaction to that trend – which uses the language of national resurgence to put for policies that inflict even more suffering on the weak – is even worse. And the existence of latter explains a good deal of why the former can continue apace.
Layman 03.05.18 at 2:21 pm
Dipper: “I feel I’m in 1989 reading members of the East German Communist Party explaining why leaving the Warsaw Pact is impossible.“
Yes, that comes through loud and clear, but I’m not sure why you think it is relevant. You aren’t in 1989 and your interlocutors aren’t saying the things you imagine that they’re saying.
If you mean to say that Brexit should entail the requirement that EU citizens living in the UK lose the right to permanent residence and quasi-citizenship status and must get out or, alternatively, apply for or be granted some kind of guest worker or temporary residence visa, with rights and protections diminished from what they are now, then say so. If you mean to say that there should be no free movement of people or goods across any UK border, regardless of the consequences for peace in Northern Ireland, then say so.
If you don’t mean to say those things, then what exactly do you mean to say? All I see you doing is heaping scorn on the people who point to these thorny questions and / or propose solutions in an effort to deal with them.
novakant 03.05.18 at 2:34 pm
Between 1995 and 2015, the number of immigrants from other European Union (EU)
countries living in the UK tripled from 0.9 million to 3.3 million.
The big increase in EU immigration occurred after the ‘A8’ East European countries
joined in 2004. In 2015 29% of EU immigrants were Polish.
EU immigrants are more educated, younger, more likely to be in work and less likely to
claim benefits than the UK-born. About 44% have some form of higher education
compared with only 23% of the UK-born. About a third of EU immigrants live in London, compared with only 11% of the UK-born.
(…) areas of the UK with large increases in EU immigration did not suffer greater falls in the jobs and pay of UK-born workers. The big falls in wages after 2008 are due to the global financial crisis and a weak economic recovery, not to immigration.
There is also little effect of EU immigration on inequality through reducing the pay and
jobs of less skilled UK workers. Changes in wages and joblessness for less educated UKborn workers show little correlation with changes in EU immigration.
EU immigrants pay more in taxes than they take out in welfare and the use of public
services. They therefore help reduce the budget deficit. Immigrants do not have a negative effect on local services such as crime, education, health, or social housing
The refugee crisis has nothing to do with EU membership. Refugees admitted to Germany have no right to live in the UK. The UK is not in the Schengen passport-free travel agreement so there are border checks on migrants.
(Source: LSE)
TM 03.05.18 at 3:24 pm
7 out of 35 comments posted by the handle Dipper, and *not one of them on topic*. The topic is data protection which btw is an issue that many Europeans, including many Brits, are deeply concerned about but somehow our self-appointed populists couldn’t care less. It’s classic troll behavior and CTers (myself humbly included) reacted with classical CT behavior: what a nice troll, let’s feed him! Here’s some more for you Mr. Troll!
In other news, the Swiss hard right was handed a crushing defeat yesterday (72% NO to a proposal to abolish public radio and television) but don’t expect them to stop claiming to speak for “the people”, just as the AFD with its paltry 13% vote share claims to speak for “the people”. No, these forces aren’t remotely representing “the people of Europe”.
John Quiggin 03.05.18 at 3:36 pm
I don’t know anything about your position, but AfD and UKIP (at least, as represented by Farage) see themselves as allies, and both of them are allied to Trump, who is an obvious clone of Berlusconi. Then there’s Law and Justice, which is in the typically absurd position of demanding freedom of movement for Poles going to the UK, while rejecting it for refugees going to Poland. So I see no problem in lumping them all together and saying that their answer to the obvious failure of the system is some mix of nativism/ethnonationalism/racism. Proposing restrictions on migration is part and parcel of that. It doesn’t get anywhere towards what you rightly suggest is needed.
Corbyn does, at least in part, but it seems as if you aren’t willing to make the required break with neoliberalism, so higher taxes and renationalisation become “seizing private property”.
Here’s a general statement of my position https://crookedtimber.org/2016/02/29/the-three-party-system/
Dipper 03.05.18 at 3:48 pm
@ John Quiggin. Thanks for informing me of the politics of my country. When I wrote seizing property, I didn’t mean a wealth tax or denationalisation, I meant seizing homes.
bruce wilder 03.05.18 at 4:04 pm
novakant @ 38
How do you suppose that lecture plays in a poor area of Britain (and there are lots and lots of very poor areas of Britain and of England especially, despite [or perhaps because of?] the wealth of London)? And, how does it play in areas of London where no one but squillionaires can afford the market rents?
Of course, one can feel superior to those in the middle and lower orders, who do not share the deep LSE understanding of politics or economics, but . . . is there a way out buried in the pile of statistical averages and correlations? Or just implicit moral instruction in how stupid and racist those people are?
TM 03.05.18 at 4:15 pm
JQ 40: as an aside, the ostensibly anti-EU governments of Hungary and Poland could leave the EU at any time. They wouldn’t even need to call a referendum, they have effectively dictatorial powers. But they aren’t leaving the EU, because they are well aware that they benefit tremendously from that “colonialist” “bureaucratic” and what have you not construct which they pass no opportunity to denigrate while happily taking its money.
Dipper 03.05.18 at 4:25 pm
@ novokant. Thanks for the link from the LSE.
So, although there has been a large increase in the supply of workers and the price of workers has gone down, this is not because of the law of supply and demand. Well, mysteriously, as the supply of workers from the EU goes down, the price of UK labour appears to be going up.
“The refugee crisis has nothing to do with EU membership”. It was Prof Bertram commenting on this site who stated that many members of the Bristol Somali community were here through citizenship of other EU countries.
And all those young workers not having babies and not putting a strain on the NHS. Someone appears to have forgotten to tell the Office of National Statistics.. So a quarter of all births in 2015 is a quarter of all maternity wards, its a quarter of all midwives, and as of 2020 that’s a quart of all new primary school places, a quarter of all reception year teachers. You can argue all the things are good, culturally better for us, pay for themselves, but when you argue it isn’t happening people stop listening.
And interesting that immigrants “do not have a negative effect on local services such as crime”. Someone appears to have forgotten to tell the police .
To compare current immigration with no immigration is a deliberate false analogy. The issue is EU uncontrolled immigration versus a UK-centric immigration policy. There are lots of examples of immigration that appears to provide no benefit to the UK, e.g here which states for example “7,705 slept rough in London last year. A startling 4,052 of these were foreign nationals; 2,337 from Eastern Europe”.
All my sources are either officials, journalists in reputable papers, or government statistics. It gives a different picture than the ones folks at the LSE would have us believe. We can and should have lots of conversations about rights of immigrants, the right amount of immigration, but it is hard to have conversations with people and organisations who have a clear and consistent policy of not being objective, and appear to be pursuing policies at variance with their stated aims.
Guano 03.05.18 at 4:57 pm
Dipper – What point are you trying to make when you say when you say “Did EU negotiators ever think what it would be like to be a UK citizen in a northern post-industrial town?”
Layman 03.05.18 at 5:17 pm
Dipper: “We can and should have lots of conversations about rights of immigrants, the right amount of immigration…â€
…but not now, because that would be detail, and…
“…in my understanding of UK law, UK law sets down basic principles, e.g. ‘goods shall be fit for purpose’ so the negotiations on detail happen after the agreement…â€
Pfui.
Dipper 03.05.18 at 5:32 pm
@ TM 39. Yes. I am aware of that. Maria made a comment @3 which I picked up on. I’m not qualified to talk about data. I have tried a bit to discuss the nature of details and the EU discussion, but other than that I’ve been responding to other comments. As long as the band keeps playing, I’ll keep dancing.
TM 03.05.18 at 7:43 pm
In these debates, the stereotype usually crops up that the poor (or “the middle and lower orders”, as the indispensable wilder has it) are somehow naturally inclined towards anti-immigrant or racist resentments. Economic hardship predisposes toward nationalism and narrow-mindedness; anti-racism or internationalism is another privilege of the well-off capable of following an LSE paper. This attitude is not just offensive and deeply paternalistic toward the poor it pretends to care about, it also completely fails to account for the vicious nationalism exhibited by Trump and his hyper-plutocratic supporters, or for that matter Eton-educated Tories like Boris Johnson.
I just came across an interesting political study from the rich conservative state of Bavaria. It shows that AFD supporters live in a remarkable bubble. They essentially care about one political issue only, namely immigration, and are far less interested in local politics than supporters of all other parties. Far from representing a “silent majority”, these right-wingers are brutal outliers compared to the population at large. For example they are essentially the only people who think that “too much” is being done for the integration of immigrants. Another finding: Only AFD supporters get a significant share of their political news from social media.
http://www.sueddeutsche.de/bayern/studie-zu-politischen-einstellungen-die-bayern-sind-aufgeschlossener-als-erwartet-1.3887963
TM 03.05.18 at 7:55 pm
Here’s an English link about the Swiss vote (39). It’s also a reminder that essentially all far-right parties have strong market fundamentalist leanings. None of them stand for a “break with neoloberalism”.
https://www.afp.com/en/news/721/swiss-vote-public-media-doc-11n67f2
J-D 03.05.18 at 9:45 pm
Dipper
I am prepared to ccept that this is your sincerely held view, and I am prepared to accept that it is also the sincerely held view of many other people; but I have already given the reason why it seems to me that it is the EU which is negotiating seriously and the UK which isn’t. I am even prepared to advance a partial hypothesis about why the UK isn’t negotiating seriously, if anybody’s interested.
If you’re right, how might I be making my mistake; if I’m right, how might you be making your mistake?
I’m not clear on what this is referring to.
novakant 03.05.18 at 9:54 pm
bruce wilder, the malaise of UK society is solely due to a rotten class system and UK governments since Thatcher making disastrous social and economic policy decisions – not the EU or EU immigrants. I empathize with people who have been left behind, but they are barking up the wrong tree and with Brexit things will get even worse for them.
This should be blindingly obvious.
novakant 03.05.18 at 11:11 pm
make that:
but they are barking up the wrong tree IF they blame the EU or EU immigrants
e.g. London has a lot of boroughs with high levels of deprivation and almost all of them voted overwhelmingly to stay in the EU – so the whole argument falls flat
J-D 03.05.18 at 11:42 pm
TM
It seemed to me that the subject of the original post was not narrowly restricted to data protection, but could fairly be read as something like ‘the data protection negotiations, and what they illustrate about the general UK approach to the EU exit negotiations’. On that basis, I regard those parts of Dipper’s comments which relate to how the negotiations are being conducted as on-topic, and those are the parts I’ve been responding to.
I agree that broader discussion of the merits of EU exit, or of the EU itself, is off-topic.
Dipper 03.06.18 at 11:19 am
So you want to do details.
In Financial Markets banks and others have had to comply with two major sets of regulations; US ones and EU ones (as well as other local ones e.g. Swiss ones). This has meant lots of work on classifications of clients by location, size, nature of organisation, so it is immediately clear on talking to a client which regulations they are covered by. Also, the reporting requirements are quite different and in many cases unclear, so derivatives such as swaps are reportable under EU regs but bonds aren’t. But are bonds with embedded swaps reportable? Well it depends how it is booked. We haven’t really booked it, it is on a spreadsheet. We separate it into bond and underlying swaps for calculating mark-to-markets. Well in that case it is a separate deal so you need to report it. Then the counterparty says why are you reporting this? The regulator wants us to report it because you are reporting it but it is clearly not reportable because it is a bond? etc etc. So you can have as much detail as you like, and that detail doesn’t stop at the printed regulation.
The point is that dealing with two sets of regulations in one place is perfectly do-able. It should be do-able for data, in that any decent organisation should be able to handle and process all data coming into it on the basis of understanding which regs apply to it and understanding that data needs to have data attached to it do verify the regs under which it has been obtained and produced. There are bound to be transaction systems that allow for storage and retrieval of data with associated documentation about origins, regs, status. And there are people called Compliance Officers who’s job it is to verify that processes and systems are in place to provide assurance of regulatory compliance. There is nothing in this which a competent organisation should not be able to manage.
The point of these regulations and discussions about regulations is nothing to do with observing the intended aims of the regulations; it is just part of an EU economic onslaught intended to obtain political servitude. And not just between nations, but within nations, so one part of the nation can continue to justify its economic and political domination of another part of the nation on the grounds that there is no viable alternative. But we all know that, and are just pretending to discuss “detail”
TM 03.06.18 at 5:56 pm
53: So “the point” of EU data protection regulations is not data protection, it’s about obtaining “political servitude” between and within nations. Apparently the ruling classes use data protection regulations to assert their political domination, which explains why they are so enthusiastic about data protection and the ruled classes just hate the very idea. They really want corporations to do whatever they want with their data because data protection regulation, or really any regulation whatsoever, is nothing but a tool of political domination. The intended aims of the regulation are beside the point.
This argument proves in meticulous detail that regulation is evil and the EU is evil. One really can’t make this stuff up.
J-D 03.06.18 at 9:22 pm
Dipper
No, I don’t want to get into the details because I’m not an expert on them. But both the EU and the UK should have experts available to them and, if they’re serious about these negotiations, should be making use of that expertise. So far my impression is that the EU has been doing a lot more to come to grips with the details than the UK is, which suggests that the EU is taking the negotiations a lot more seriously than the UK. If that impression is incorrect, that’s where I want to be corrected.
No, that’s not true; we don’t all know that; I, for one, don’t know that. I do not understand how you have arrived at the conclusions stated in this paragraph.
Dipper 03.06.18 at 10:31 pm
@TM I didn’t say regulations were evil. Anywhere.
@J-D see this. The EU are backing away from mutual standards recognition which is becoming the norm in the rest of the world. They are going to require that companies in the single market do exactly as instructed and are not free to innovate to find better ways of meeting the standards. This is a retrogressive step done so the EU can control precisely what member states do.
J-D 03.07.18 at 1:30 am
Dipper
An EU negotiator says that if you want to be part of the single market, you have to follow the rules of the single market. I don’t know whether this is absolutely true, because I don’t understand clearly enough what a ‘single market’ is; however, on the face of it, it seems a reasonable position. To show that he is wrong, you would have to show that it’s possible to have a single market without having the particular kind of rules he’s talking about; for all I know, that could be true, but you haven’t shown me that it is true, and neither has anybody else.
It seemed from the story that Theresa May was talking about a different kind of deal based on mutual recognition of standards. One thing I do know for a fact is that it is possible for countries outside the EU to have different kinds of deals with the EU without being part of the single market, because that actually does happen. I may have misunderstood, but it doesn’t seem to me that the EU negotiator quoted is saying that the UK can’t have a deal with the EU based on mutual recognition of standards; it seems to me he is only saying that it needs to be understood that any deal based on mutual recognition of standards would not have the same effects as being part of the single market. I don’t know whether you’re right that deals based on mutual standards recognition are becoming the norm in the rest of the world, but as far as I know that could easily be true; however, the rest of the world isn’t a single market, and isn’t trying to become a single market or (as far as I know) trying to achieve the effects of a single market. I thought the UK government had already made it clear that they don’t want to be part of the single market, so it’s not clear to me how it’s a problem for the UK if an EU negotiator confirms that the UK can’t be part of the single market.
So I find, on the one hand, a possible explanation which is that the EU is requiring conformity to particular rules as a condition of single market membership because conformity to rules of that kind is in fact a practical requirement of a single market (whatever the precise meaning of ‘single market’ is); and, on the other hand, a possible explanation which is that conformity to those rules is not in a fact a practical necessity of establishing a single market and that the EU’s real motive for insisting on them is something different. Since I don’t know what the motive is supposed to be in the second possible explanation, on the face of it I have to say that the first explanation is the probable one.
TM 03.07.18 at 10:47 pm
Dipper 57: “@TM I didn’t say regulations were evil. Anywhere.”
What you said is that “*The point of these regulations* and discussions about regulations is nothing to do with observing the intended aims of the regulations; it is just part of an EU economic onslaught intended *to obtain political servitude*.”
TM 03.07.18 at 10:54 pm
P.S. I admit I cannot make any sense of your statement, but it is what you have written.
Chet Murthy 03.08.18 at 3:22 am
TM 60: Give it up, friend. He’s a libertarian. the tell is “political servitude”.
I remember clearly right after Brexit, an article talking about a place in Wales that got a shit-ton of money from the EU, but voted Brexit. There was discussion of how Brexit would allow weakened environmental regulations, which would in turn allow for toxic waste dumps and such. Freedom!
Chet Murthy 03.08.18 at 6:45 am
Backing up a few thousand feet, I do find it amusing (in that rubbernecking-a-multi-car-pileup) way, to watch the EU take no seriously detailed positions, and merely scold the UK when it fails to make detailed proposals of its own. B/c after all, the EU -has- a detailed position already: it’s called “the single market, with EU jurisdiction and the four freedoms”. And the UK’s role in this negotiation, is to try to get the EU to agree to (ahem) “less than that”. And the EU’s BATNA is “the UK crashes out, and can only trade on WTO rules”. Which is a nightmare for the UK — as Chris Grey notes, May’s government hasn’t even started *planning* for a lorry park at Dover, and they sure are gonna need one, b/c they also haven’t planned for the massive increase in customs capacity required to process all the traffic. Nor (I assume) have the French. I remember reading that each EU country has only a small exposure to the UK, but the UK has a giant exposure to the EU.
So the UK really need to get a deal done. And yet, they dither, doing nothing. It’s a colossal game of “chicken”. Only thing it’s not two cars playing. It’s a car, playing against a cliff. And the (UK) driver has his shoe nailed to the accelerator pedal. And is busy selecting a radio station.
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