Kissing the Barnier Stone

Michel Barnier gained attention over his public summary of Brexit negotiations. Whilst progress has been made in some areas, the blame for stumbling blocks was firmly laid at the door of the British government. Where do we go from here?

On the other hand, the UK negotiator, David Frost took a lower profile approach, issuing a written statement, confirming the same stumbling blocks of the “level playing field” and fisheries. However, he welcomed the common ground, understanding of not being subject to the ECJ and was altogether more optimistic about striking a deal.

It is not entirely clear who Barnier’s comments were aimed at but his statement can be seen from different perspectives. He is an employee of the European Commission, working to a mandate provided by his political masters. That mandate can be seen as a shopping list provided by the leaders of 27 nations.

The EU tends to advertise itself as perhaps the largest free trade area in the world, by value at any rate. Outsiders might regard that as Fortress Europe, free to trade internally but with barriers against the outside world in the form of tariffs, quotas and regulations whilst striving to maintain a captive internal market. Both views have some validity.

The EU also has several vested interests. The Commission, or civil service, are well paid to protect industries from outside competition. There is plenty of incentive to create a perception of strength. It might be a mistake to cast the UK as a smaller, less powerful entity, although in terms of population, the EU is significantly larger.

In reality, the EU maintains a significant trade surplus with the UK who are among the largest export markets for each of the 27 remaining members of the EU. The links over the last 47 years have been increasingly deeper. Of all new cars on British roads, more than 4 out of every 5 are built within the EU27. Tariffs have made the UK dependent on EU agriculture in the short term.

The protectionist measures to reduce competition from elsewhere in the world can be argued to have stifled productivity growth in some industries such as agriculture. At the same time, the existence of the Euro currency has helped the richer parts of the EU to maintain an artificial price advantage, weakness deriving from the poorer southern EU.

In short, Barnier’s negotiating mandate may be geared towards seeking to maintain advantage, keeping the benefits to the EU of British membership, making claims to protect their export markets but without recognising why Britain voted to leave.

In summary, there are several reasons why the referendum vote went as it did. Rather than maintaining a focus on a slow growth, introspective community, Britain has traditionally had a more global trading view, reflected by a multi-cultural society. The ethnic mix in the EU parliament has been significantly diluted by the absence of the UK who had the highest number of minority ethnic MEPs.

The Commonwealth provides an attractive market with development opportunities for the UK whilst assisting development of poorer nations, through trade rather than protectionism, exploitation and according to some charities, agricultural dumping.

The reality that the EU’s internal bodies do not seem to accept is in their starting point. They seek to maintain what they have, without recognising the liberties that Britain espouses, rather than seeking an improvement on the default position of WTO rules.

As for Britain, we seek to support developing countries, with orange juice at world prices rather than protected Spanish prices, rice too, not at Italian prices but world prices, providing a market that rewards their output.

The proposed British tariff schedule has already been published. On the whole, tariffs will not be charged on goods that we do not produce ourselves. What tariffs remain can be used as leverage in promoting free trade deals elsewhere in the world.

Indeed, as Britain seeks those free trade deals, EU businesses are welcome to relocate to the UK in order to provide lower priced goods to those who agree free trade deals with us. Should we reach an agreement, for example, with the USA, then motor manufacturers may choose to avoid the 10% or so reciprocal tariffs in the world’s largest single national market.

Barnier described the UK position on fisheries as “unacceptable”. The legal reality is that by leaving the EU, we become an independent coastal nation with the UN laws that apply. British fishermen might argue that the Common fisheries Policy was unacceptable in giving EU nations rights over our waters. Apparently, international law is unacceptable to Barnier.

Should the EU continue to insist on maintaining the same rights to British waters as allowed under the Common Fisheries Policy, then there is the very real prospect of what is referred to as “no deal”.

One of the pawns used in Brexit negotiations is the Republic of Ireland. Northern Ireland was a part of the “shopping list” provided by EU27 members.

In the event of “no deal”, there would be a very real threat to a large part of Irish agricultural exports, notably cheese, other dairy and beef products, the UK being their largest export markets. Irish Cheddar with tariffs of over 30% would make them uncompetitive in the UK.

As for the automotive industry, a 10% higher price for BMWs, Mercedes and VWs for example might well make them cheaper to source from South Africa, Brazil and India respectively. The domestic market for British produced Jaguars, Nissans, Toyotas and any new investors provides an opportunity for investment within the UK.

Of course, businesses seeking to sell from the UK into the EU will have to meet the standards decreed by the EU. However, we can seek different standards, not worse, not necessarily better, but different. If the EU does not agree to recognise those, we do not have to provide them with a continued export surplus.

As an example, Britain has a minimum wage higher than many EU member states. If the EU is not prepared to recognise our standards, then we do not have to accept goods from those parts of the EU with a minimum wage of less than 25% of the levels in the UK.

So how can we expect negotiations to continue?

Of course, on behalf of the EU, Barnier can not be seen to give in to the reality of an independent nation gaining by extracting themselves from the EU. In the short term, they can not be expected to yield to unrealistic demands under international law. The price of losing the trade surplus would decimate EU economies, particularly among those countries that sell motor cars or agricultural goods into the UK market.

For the current British government, not regaining the status of independent coastal state would be political suicide. There can be no movement on this issue. A diversion of trade away from the EU27 and towards other existing partners, let alone new partners, has plenty of attraction, not least in global fair trade with emerging partners.

One simple solution is to agree a series of treaties on areas of common interest, such as security and exchange of intelligence. As for trade, pragmatism must surely take over at some point.

Both sides present an almost Doomsday scenario, that if a deal is not agreed within a few months, then “no deal” would become a reality. It would appear that the UK can be more relaxed about this than the EU27, already taking steps towards trade agreements with other parties. Britain has a more recent history of supply side measures compared to the protectionist role of the EU.

However, as these pages have already highlighted, should both parties be prepared to emphasise that there are areas of agreement, there is another way.

Article XXIV of the WTO allows for the status quo to be maintained on trade whilst negotiations continue for a reasonable period, up to around 10 years. The status quo could be a simple agreement not to impose tariffs and quotas, accompanied by a schedule of talks to reach agreement within the 10 year period. All it takes to avoid a dramatic restructure of trade is a finger of fudge.

Incidentally, Cadbury’s fudge production was relocated to Poland in 2010, now made “under license from Cadbury UK”. An offer to use political license in Brexit talks would surely be seen as conferring an element of loss minimisation to the EU. Failure to agree would almost inevitably lead to significant job losses, particularly among the nations with the more fanciful shopping lists of claims on the UK.

Perhaps it should be remembered that the EU had 23 sets of negotiations “on hold”, most of them for a number of years. Any agreement reached between negotiators does not necessarily ensure ratification by all the parties within the EU, notably the European Parliament. Article XXIV might be seen as providing some sort of certainty for the medium term.

Reports suggest that neither side is totally logistically ready to press ahead with “no deal”. Perhaps we can expect the pragmatic alternative to be newsworthy in the autumn.

Cummings – another view

Whilst my stance before his statement was defend Cummings, his own statement shifted my perspective. An analysis follows from Cummings’ own defence.

Yes, for ordinary people, under the circumstances, if there was a facility available to isolate in one of three farm houses as compared to being holed up in a London house, there are merits in the argument to go North.

There are however some key decisions that open up questions, as well as his role and the environment in which he was working.

He is to be commended on a performance worthy of a SpAd, out-Campbelling a model for spin. For someone in such a role, what is left unsaid is perhaps more important that what has been said.

In the environment, his boss, as well as other cabinet colleagues, had already gone down with coronavirus symptoms. His wife was also showing such symptoms. As was later shown, he was a high risk and went down with it himself. His own endorsement was to “stay at home”. He was also in the ideal place to establish how quickly the onset of symptoms is likely to affect one’s own abilities.

We do not know if Cummings himself had shown any symptoms when making the decision to drive North, whether this was a deliberate omission or not. What we do know is that he claimed to have symptoms the day after he arrived in County Durham (if not before).

Among his wife’s symptoms included vomiting. He made the decision to take the five hour drive, presumably having assessed the probability that the need would arise to stop. He claims that the journey was made in one stint.

It would undoubtedly have crossed his desk that facilities have been made available for hauliers and other employees who needed to drive should have stopping facilities available. This in fact appears to be one of the considerations made by the SAGE group, whose meetings he was reportedly in regular attendance.

Commercial health and safety requirements typically suggest that on a journey of that length, two stops should be made. The Highway Code has its own guidelines. A journey of that length requires two stops of 15 minutes each.

In short, such stops may create the risk of passing on the virus. Impairment of ability to drive, through headache, fatigue, blurred vision, nauseous feelings and others make him a danger to both his family and other road users, particularly if he does not follow the Highway Code. His car becomes a lethal weapon through his own potential negligence.

In his statement, Cummings states that at midnight preceding his dash, he was in a meeting at number 10. He was also at work the next morning, slipping out to go home before resuming his role back at Number 10.

The Highway Code advice includes to Get a good night’s sleep before embarking on a long journey” and “A minimum break of at least 15 minutes after every two hours of driving is recommended”. According to his own evidence, Cummings did neither.

The second key decision was to test his eyesight and ability to drive back to London in a drive to Barnard Castle. As an experiment, it was a risk. Cummings stated that symptoms showed that he needed to take a break. His wife was in the car and one might assume she provided back up for the drive back to the farm.

The key omission is why such a caring, protective father should take such a risk of taking his son in the car when there were two nieces available to look after his son back at the farm, a journey that, if Cummings is to be believed, was not essential for his son even if it was dubiously essential for the father.

An analysis of the geography surrounding the Barnard Castle area, through Google Maps and Ordnance Survey maps show the most obvious parking areas nearby were the other side of Barnard Castle to Cummings’ route in from the North East. The nearby picturesque River Tees valley is surrounded by woodland areas to the North West and West to South, including the picturesque High Force and Low Force waterfalls unless he parked close to the town centre.

Did he find an alternative wooded beck? If not, his drive would appear to have been almost double the half hour that he claimed, given his possible approaches from the North East, through several villages with 30 mph limits, would make a half hour for over 30 miles in excess of A class road speed limits.

By this time, Cummings suggested that he took medical advice, although he neither detailed, nor was challenged, in what form this advice was taken and from who. A GP? A SAGE member? Neither did he say that having demonstrated further symptoms of nausea, he double checked that advice.

Finally, the red herrings. Steve Baker’s intervention highlights that this is not about Brexit (indeed, my own position is well documented). These incidents draw on different perspectives. Should he have made either journey, given the rules he had a hand in crafting when at least his wife, if not he himself, were highly probably carriers, even if the farm had greater appeal.

A further doubt has been cast by his wife’s report, that Cummings was effectively in bed for 10 days although in his statement, he suggests that he picked up his wife and son from hospital on the 7th day following his hasty retreat from London. Would either of his nieces been to drive whilst he was apparently significantly impaired?

On to the press, is it a red herring to show “journalistic” activity outside his house AFTER the story had broken?

The press have certainly been negligent failing to identifying the omissions and provide answers.

Cummings is of course welcome to respond as to whether or not the Barnard Castle trip was in breach of rules which he had a hand in creating. He is also welcome to elaborate on his calculation of the risk of both passing on coronavirus during the five hour drive (plus stops?) as well as to what extent symptoms may have been expected to make him a potentially mortal danger to other road users. He most certainly should explain why his son was part of the Barnard Castle trip and cover the other inconsistencies in his own crafted statement.


Theresa May used to tell us “Brexit means Brexit”. However, she never really told us what Brexit means. In truth Brexit is like a rainbow, a range of colours, opinions and viewpoints. If we can define a rainbow, can we define a Brexit? Can it ever be touched?

On our political spectrum, the reds, yellows and greens are all in favour of some sort of Remain or further vote. The current debate over defining Brexit is at the blue, indigo and violet end of the spectrum.

To be able to see a rainbow depends on perspective. In the morning, they will appear towards the West, in the evening to the East. The phenomenon results from the sun being behind the viewer, its light being dispersed by water droplets. As the viewer moves towards the rainbow the end seems to move further away, not unlike the political scenario as we potentially reach the end of the day as an EU member.

The current dispute seems to centre on whether or not we should leave with or without a Withdrawal Agreement. Boris says that means Brexit, Farage doesn’t agree.

So how can we define Brexit?

If we go back to Theresa May, her focal point was “control of our money, laws and borders”. Some will have different views over levels of control. Another angle that might follow in a quest for a definition could include the question ‘when?’.

As a reminder, the process of leaving the EU started with a referendum in which the electorate made a choice, to leave. The process is governed by the EU club rules, specifically Article 50 of the Lisbon Treaty.

We have seen that the process allowed for two years, subject to extension, to negotiate terms of exit. Failure to agree would mean leaving on WTO terms. Extensions mean that as we have moved closer to the rainbow, so the ends seem to have also moved.

Boris has pledged that there will be no more extensions. If the election allows him to stay keep that promise, the Article 50 period comes to an end on 31st January 2020. If by that date either the WA is ratified, or Article 50 has lapsed, then it can no longer be revoked under EU law. To regain membership, a new application has to be made under new terms (under Article 49) with many more impositions.

The UK will have left the EU. However, the UK will not have full “control of our money, laws and borders” – yet. Boris might be right but so too might be Farage.

Under the WA, the UK leaves with a transition period, guided by the Political Declaration, the latter not being (totally) legally binding. The current target for an end date is 31st December 2020. During that time the UK and EU can trade on existing terms with a view to completing a new free trade deal. If all goes to plan, then 1st January 2021 would see a cleaner break, with the exception of exporters to the EU27 meeting their standards.

Farage advocates leaving, as some would say without a deal. That would mean trading on WTO terms immediately when the Article 50 process comes to an end. He has suggested that his leaving date would therefore be the end of May 2020. To achieve that, the EU27 would have to agree a further extension of Article 50.

As a part of the Brexit Party launch campaign, Farage and his team have highlighted where, under the WA, the UK does not have complete control. He has further complicated the scenario by emphasising the suggestion from Michel Barnier that it would take at least three years to complete FTA negotiations, hard for some to believe, given current close alignment and the recently completed CETA template.

There is an obvious contradiction that might be explained as the opening less well directed salvos of an election campaign. However, he is correct in saying that there is not complete “control of our money, laws and borders” until the conclusion of Article 50 and/or, if ratified, the transition period.

Just for a moment, assuming that public utterances from the leading UK figures genuinely reflect the positions that will be adopted when candidates are administratively finalised, the differences would appear to be Brexit by one definition on 31st January 2020, not by the other definition until 31st May or 31st December 2020 depending on whose decision, possibly with consent of the EU27.

The comparative envisaged end dates, between Boris and Farage are from four and seven months, unless the real world gets in the way. The material difference is whether or not we ratify the WA.

So what of the real word?

Naturally, the first consideration is the EU themselves. We know that they have agreed to the WA. Would they agree to the Farage suggestion to delay a further four months? This is subject both to conjecture and political will on both sides.

Farage seems to give credibility to Barnier over the time scale for FTA negotiations, Boris sees “no reason whatsoever” that such negotiations should be extended beyond December 2020. Barnier may be right, on the other hand, he could be laying down the foundations for a negotiating stance.

Perhaps Mr Farage will come to explain why when the EU27 will not agree for three years, they will agree within a five month extension? Does the answer lay in GATT Article XXIV?

On money, the UK would be bound to the conditions first formalised by Article 109 and Protocol J of the Maastricht Treaty with regard to overall policy.

Yes, if we leave without the WA, there is a strong argument, endorsed by House of Lords select committees, that the balance of the divorce bill does not legally have to be paid. There is a moral issue as to whether the UK should honour terms agreed in the EU budget cycle to the end of 2020.

During the transition phase, if there is one, of course the UK has no say in laws that the EU might pass. If the transition period does in fact end after December 2020, then in theory, subject to any FTA, those could be repealed by a British government in 2021. In any event, to export to the EU, goods will have to meet EU standards. EU businesses would also need time to adapt.

Whether or not the EU would agree to invoke GATT Article XXIV in the event of a trade deal not being agreed by the end of 2020 is open to conjecture. The same criterion applies if the UK leaves with “no deal” after 31st January 2020. A flip side to the coin is that when free to negotiate FTAs globally, the bargaining hand of the UK could be argued to provide extra leverage in a fair deal with the EU.

When it comes to borders, of course the UK is outside the Schengen area. The difference between both sides of the Leave debate becomes that seven month period for free movement within the EU.

Similarly, fishing may be subject to the same time scale, subject to what may have already been agreed for 2020 under EU and international law. More clarity is needed.

The same applies to other issues. Is seven months enough for the EU to formalise military structures, at least sufficient to invade, for example, Montenegro, Egypt or China? If invaded, of course NATO is more relevant.

There is the question of Northern Ireland too. Boris would argue that the WA provides the country with the best of both worlds, having a foothold in both the UK and EU. There is no formal representation at EU level. There are extra barriers, however minimal, on trade between Northern Ireland and the UK mainland.

A host of other issues need to be explored; security, policing among them. Some provisional arrangements have already been negotiated such as haulage.

Voters will come to their own judgement on whether they want to shut one door before others open. Boris can claim to leave four months or more sooner, Farage can claim to leave seven months or more sooner.

Ultimately, the strength of the UK hand will depend on parliamentary arithmetic. Events since 2017 have shown how weak a negotiating position can be when a handful or nonconformists can delay, obstruct and derail a government’s policies.

The irony is that by each colour seeking to appear too strong, the blues, indigos and violets may yield their pots of gold to the rest of the spectrum. Leave might be six months down the road under Corbyn, it might be never under him or any form of coalition.

Leave means leave – or does it?

Brexit election

The general election has finally been called. Of course a general election should be about more general issues but will Brexit dominate the agenda? The early stages suggest that this will be the defining issue.

Looking back at previous elections, 2015 provided a surprising Conservative majority. Many aspects may have tipped the balance but Cameron’s EU referendum promise can be argued to have been decisive.

In retrospect, May’s 2017 election has been widely interpreted as a vanity project, seeking to capitalise on a healthy lead in the polls. Ultimately, it may have been the student debt vote that swung in, ostensibly at the last minute, that led to her minority government.

She was finally derailed by her “no deal is better than a bad deal” mantra, a stand that was only “in the abstract”. May lost the support of the ERG wing of her party, one person’s “extreme”, another person’s global free traders.

Now, the 2019 election became inevitable, the minority government leaking former ministers, later back benchers, at an alarming rate. Those rebels who had supported May’s withdrawal agreement, keeping the UK closely aligned to the EU, were unable to unconditionally support the new Boris Withdrawal Agreement.

The Boris deal provides a few changes, most notably removal of the back stop but with a (possibly) temporary solution that Northern Ireland has a foot in both the UK and in the EU Single Market. The long term view in the accompanying Political declaration is towards a free trade agreement (FTA) rather than close alignment.

So where do the parties stand on Brexit now?

The Liberal Democrats have been quite open in seeking to revoke Article 50, to remain in the European Union. They are also home to six former Conservative MPs as well as four from Labour. It remains to be seen how they would realign once Brexit has finally reaches the next stage of voting as well as economic policies should the next parliament run for the full five year turn.

It will be remembered that the current Liberal Democrat leader, Jo Swinson, was one of the most supportive of Conservative policy during the 2010-15 coalition, regularly voting against her party manifesto commitments. It might be that her chameleon-like status affords the opportunity to form other alliances in the event of another hung parliament.

The most obvious potential is with Labour, whose position has moved in the last thirty months from respecting the result of the 2016 referendum. Currently, the line is that they would seek to negotiate a third new “credible” deal before holding a second referendum. Although Corbyn maintains silence on how we would vote, leading members of his party suggest that they would vote against whatever they manage to negotiate.

Completing the UK wide Remain line up are two separate factions, the first of which is The Independence Group, made up of four former Labour MPs and Anna Soubry who are firmly in the second referendum camp, at least for the time being.

Others are predominantly former cabinet ministers who will have claimed to be standing as independent candidates, serial rebels against the Boris deal, advocates of taking “no deal” off the table and orientating towards Remain.

The Leave side is more coherently summarised as the Conservatives and The Brexit Party. Ostensibly, the former line up behind the Boris deal, the latter to leave on WTO rules. The differences between those positions becomes more nuanced depending on interpretation of the agreements, the WA and PD.

Farage and his cohorts have argued that the Boris deal is not really Brexit, that the UK remains under the control of the EU in many regards, through treaty commitments and through adherence to adjudications from the European Court of Justice. He stipulates that the UK does not regain control, the EU can still lay traps.

On the other hand, Boris might argue that his deal gives a managed exit. Total independence is not gained straight away but allows for a negotiating period, during which time the UK can also negotiate trade deals around the world, something that can not be done as a full member of the EU.

At the risk of oversimplification, potential compromise may be somewhere in between with two key components. The first is a gamble on EU27 strategy, the second in answering the question “when?”.

The Farage case is embedded in the assumption that free trade with the EU27 may continue as currently if both parties commit to the FTA. In that case, under WTO rules, GATT Article XXIV can be invoked. This allows for a reasonable period, notionally up to ten years, for the FTA to be finalised. If there is no agreement to pursue Article XXIV, then the UK leaves with trade barriers. Farage seems that to follow the line of EU officials an FTA would in any event take at least three years to negotiate.

Certainly, the WA and PD allow for talks to be extended to 31st December 2022 and potentially beyond. The initial time scale is that a decision must be made by July 2020 if an extension is to be sought beyond December 2020.

Therein lies a potential compromise but it should be born in mind that the current legal default position is that the UK leaves the EU on 31st January 2020 on “no deal” or WTO rules, unless alternative arrangements are agreed in the interim.

So what is that compromise? Quite simply, that a Conservative government under Johnson would adopt the position that a trade deal can be broadly cut and pasted from the Canada deal, to be agreed by 1st July 2020.

Already, according to news outlets, a ‘Downing Street source’ has “categorically ruled out extending the transition period”, presumably subject to the outcome of the election.

Both the UK and EU27 are currently aligned, so to maintain trade on current terms is simple. An agreement to invoke GATT XXIV extends the negotiating period but outside the PD. The Brexit transition period ends on 31st December 2020 with minimal risk.

To illustrate the point, fishing may be a workable example, again arguably slightly oversimplified.

Under the Boris solution, the UK does not regain control over fish stocks until January 2021. If an FTA is agreed before then, fish sold into the EU27 are free from tariffs. If GATT Article XXIV is invoked, those sales are tariff free for a longer period.

The Brexit Party position would give control over fish stocks after 31st January, subject to challenge under international law but also subject to any five month extension proposed by Farage, were the EU27 to agree.

There may be a higher risk that GATT Article XXIV might not be invoked. There may also be a potential saving of around £10 billion on the “divorce settlement”. However, other industries may face greater risk.

In the meantime, breathing space is added for negotiations on other international FTAs which in turn might provide leverage for a beneficial future relationship with the EU27.

So what of the chances for electoral success?

Much depends on the potential for electoral pacts. On the Remain side, we have already seen that the Liberal Democrats stand aside in Beaconsfield to enhance Dominic Grieve’s chances of achieving success as an independent. His 65% rating last time, against Lib Dems 15% may give him a chance but those 65% voted for him as a Tory. He could be subject to Brexit Party and Tory candidates.

Similarly, Antoinette Sandbach stands as a Liberal instead of Conservative. Her vote as a Tory was 57% against Lib Dems 6%. Both she and Grieve are in constituencies that were marginal in the referendum.

The Brexit Party won most votes at the MEP elections, Lib Dem second with Labour third and Conservatives fifth, even behind Greens. A low turnout then, followed by subsequent changes in the political landscape provide no guarantees. Tactical voting may become the norm.

Polls will emerge in the coming weeks as to how loyal supporters are in different parts of the country. The perceived industrial Labour North is also home to majorities of Leave voters. For once, there could be scores of four way marginal seats.

Unless those electoral pacts develop, the outcomes are possibly the least certain in history. For the time being, Boris leads the polls but so did May at this stage in 2017. Instinctively, Leave have greater potential to unite although the diverse Remain side have the less nuanced divisions.

It may be that the outcome leads to balances of power held by the smaller constituent members of the United Kingdom, Scotland and the independence argument, Northern Ireland with the Irish Sea border, an element of Welsh nationalism perhaps?

On other issues, there are different alignments. The Brexit Party have more in common with the Lib Dems than they do with other parties. Boris has signalled his own end to austerity and stressed the public service element. Labour have produced one of the most idealist and economically illiterate agendas ever. If they keep us in the EU, their nationalisation policies will be inoperable under EU competition rules.

Ironically, the state of the parties could lead to a stronger Brexit. They could also lead to the most European political modus operandi of coalition government and alliances that the UK has experienced.

One thing is for certain, those who choose to study politics have never had it so good.

Four legs

Again and again the House of Commons declines the opportunity to hold a general election. Ostensibly no vote will pass. The House is in paralysis. Why do they perpetuate the situation?

As ever, it is worth reviewing how this came about, the history going back to the general election of 2015. To the surprise of many, David Cameron won a majority. It seems reasonable to assume that the main reason for gaining at the margins was the shift of votes from UKIP to a party offering a referendum on membership of the EU.

The referendum that followed, surprising to most but to Cameron in particular, a majority of those who voted chose to leave. The Prime Minister, who declared he was not a quitter, quit. Theresa May took over and called another general election in 2017. It is a matter of history that she came to lead a minority government, reaching a confidence and supply agreement with the DUP.

In the interim, on 1st February 2017, MPs had voted by 498 votes to 114, a majority of 384, to back Article 50, the mechanism by which the UK can withdraw from the EU. Parties promising to respect the result of the referendum gained 84% on the vote in the 2017 election.

Theresa May had her own reasons and convictions for side lining the process that had been carried out by the DExEU department she created. Having not only said but also included in the manifesto “no deal is better than a bad deal”. She later admitted tat she was talking “in the abstract”, a political term for crossing fingers behind one’s back when making a statement.

Having totally failed to make the much repeated promise that the UK wold leave the EU on 29th March 2019, she failed, to be succeeded by Boris Johnson who promised to leave the EU on 31st October 2019, “do or die”, “deal or no deal”. There are a few days left before that deadline passes. Indications are that Boris might join that line for Conservative non-quitters.

In simple terms, those failures have come about because our representatives in the House of Commons can not agree to a deal, neither can they agree to leave on WTO terms, otherwise described as “no deal”. Those who can not agree break down into different groups.

Both the SNP and those who were elected as Liberal Democrat MPs can have a clear conscience. Both wished to remain and continue to argue the same case, against the democratic mandate. The latter call for a further referendum but maintain that they will only respect one outcome from that.

Labour’s position has shifted to an extent, although they can claim to have sought a customs union based solution in their manifesto. The current stand point might seem confusing but seems to be that they wish to take “no deal” off the table, then negotiate a fresh deal that they will oppose, ultimately seeking to remain.

Some might note that the parliamentary Labour Party are at odds with the votes expressed in their historic heartlands, South Wales, the North of England and coastal communities.

It may seem unfair to consider the South East based Labour MPs as the elite; privately educated Jeremy Corbyn, Surrey born Lady Nugee who prefers to go by her non-titled name, Emily Thornberry, London born Hilary Benn, Oxford educated Yvette Cooper, Diane Abbott and Keir Starmer. It has long been recognised that “four legs (are) good, two legs (are) better”.

The balance of power over Brexit has, in reality, been held by a small group of Conservatives who have abandoned their manifesto commitments. Some have crossed the floor to the Lib Dems, such as Oxford educated Sam Gyimah and doctors Sarah Wollaston and Philip Lee.

The final wedge under the Brexit door came from another elitist group, notably including former Oxford educated ministers such as Hammond, Grieve, Gauke, Ken Clarke, Harrington, Stewart and Vaizey, along with Cambridge educated Greg Clark and Letwin. It is almost as if there was a snobbery about the Oxford educated classicist and scholarship boy, Boris Johnson.

Until given the opportunity to vote for an election, Labour had admirably made the case for one. The current Prime Minister has not been mandated by the electorate as whole, even though his adherence to manifesto commitments has arguably been greater than either his predecessor or the Labour Party.

Corbyn’s attitude that he wants “no deal” to be taken off the table has only succeeded in keeping “no deal” on the table. Even when the prospect of a further referendum was tabled for indicative votes, it failed.

Parliament has become a place where nothing can be achieved. It is as if achieving nothing maintains a status quo, where a minority elite will not put themselves to the public so that they can preserve their own status, where they are more equal than others.

There is of course a vested self interests that politicians of virtue would eschew. A salary of almost £80,000, plus expenses which may benefit family members, is also maintained. Of course they do not consider that each week that they delay an election adds £5 (index linked) per week to their final pension.

The world of Westminster and maintaining their status quo is a long way from the rest of British society who have embraced lessons from around the globe.

British businesses have learned from the American W Edwards Deming who inspired Japanese production methods base around Kaizen. The same principles have been applied to successful British sport, Frank Dick in athletics, Tour de France wins, Woodward’s rugby world cup victory, a cricket world cup, the Premier League and a surge up the Olympics medals tables over more than a decade.

A general election gives an opportunity to move on, to ditch a political culture where the lack of achievement is considered an achievement. Stopping progress is a political ideal.

Yes, the British people may vote for more stagnation. On the other hand, we may vote for progress, for promises to be honoured and to punish those who have rejected a democratic mandate. Progress scored a success in 2015. Stable can be argued to have been a failure in 2017.

In the real world, the country needs a direction to attract investment, create jobs and opportunities for the future, to maintain existing markets or to target and support growing economies, in turn providing prospects for our future growth. Stagnation and non-achievement restrict progress.

Our politicians have repeatedly denied the chance for us to give our verdict.

It has to be said that for those who live in the smaller three constituent nations, there may be different priorities.

For the UK as a whole, if we want to remain we can vote Lib Dem. If we want to fudge and then remain, assuming the EU27 will allow us,we can vote Labour.

If we want to leave with a deal of sorts we can vote Conservative. If we want to leave without a deal or do not trust other politicians to respect a democratic mandate, we can vote Brexit Party. The Herculean British people can have an opportunity to clean the Augean stables of the elitist faeces.

MPs don’t matter, the British people do. Four legs are stable, two, after imbibing in subsidised bars, can be distinctly wobbly.

Brexit witching hour

Our man Rex seeks to establish the Brexit agenda for the week ahead.

The last week of October promises to be a fascinating, indeed crucial, week in the quest for Brexit. What will happen? We don’t know for sure but there is a timetable, of sorts.

There are four key outcomes to look for:

1. Extend the Brexit deadline

2. Leave without a deal

3. Leave with a deal

4. Revoke Article 50

Under the Benn Act, on 19th October Boris Johnson did as required, sending a letter to the EU which requested an extension to the Article 50 notice until 31st January. The EU27 have been considering the request, yet to produce a formal response. This would seem to be the main consideration for the weeks ahead.

If the EU27 agree to an extension until 31st January 2020, according to the Act “the Prime Minister must, immediately after such a decision is made, notify the President of the European Council that the United Kingdom agrees to the proposed extension”, regardless of any conditions attached.

If any other date were to be proposed, then a debate must be scheduled for Wednesday.

Perhaps it goes without saying that any prospective motions or amendments calling for a further referendum are dependent on an extension. Legal challenges can not be ruled out.

Monday 28th October

The UK awaits a response from the EU. In order to extend the Brexit deadline, all 27, as well as the UK, have to unanimously agree. Weekend speculation has centred on the French withholding their agreement, allegedly until a the House of Commons agree a date for a general election or the latest withdrawal Agreement is approved.

Under those circumstances, the Conservative government may again seek to call for a general election. If they do, under the Fixed Term Parliament Act, the House must produce a two thirds majority.

On previous form, that majority will not be achieved, key to the decision being Jeremy Corbyn’s Labour Party. The declared standpoint is that “no deal” must be taken off the table before they agree. Given that position, it may seem unlikely that Her Majesty’s most Loyal opposition will not bring a vote of no confidence, which requires a straight forward majority.

The Benn Act provides for a motion to be debated within two days or by 30th October at the latest, that motion relating to the EU27’s response to the request for an extension to the deadline.

Tuesday 29th October

Much depends on what may happen on the previous day. The UK may have received the EU27’s response to the Article 50 extension letter, it may not.

Given that the House of Commons has demanded more than three days to debate the latest WA, if the EU27 have not responded, this is the last day to start the debate. Even so, that gives little time, possibly only minutes, for the House of Lords, to scrutinise.

There is also the possibility that a vote could be held on the prospect of a general election.

Wednesday 30th October

Events are still dependent on whether the response from the EU27 has been decided upon and communicated to the UK.

The keynote debate of the day has been decided by British law, in the form of the Benn Act. The motion reads: “That this House has approved the extension to the period in Article 50(3) of the Treaty on European Union which the European Council has decided.”

Not to debate the motion would put the whole of the House of Commons in breach of UK law. The motion must be debated whether or not the EU27 have reached a decision and whether or not that decision has been conveyed to the UK.

Obviously, the EU27 are not bound by UK law. Even had Hilary Benn and his supporters set a final date for them to respond to the letter of 19th October, there is no compulsion for them to do so in European law.

Much as the House of Commons has given the people plenty of amusement, it must surely appeal to the sense of humour of the EU27 to watch the House of Commons debate a response that has not been made.

If there is nothing to approve or disapprove, it will be interesting to see which way the vote goes, whether there is a majority for nothing or against nothing.

On the other hand, if a letter has been received from the EU27 offering a conditional extension, let’s say to 31st December 2099, whether or not a WA has been agreed by then, it would also be interesting to see which way the vote goes.

There is also the possibility that a vote could be held on the prospect of a general election.

Thursday 31st October

Today has already gone down as Boris Johnson’s “do or die” day.

Under the Benn Act, the EU27 have until 22.59 hours to agree to an extension of Article 50, the Prime Minister being required to accept “immediately”. As has been identified in many arenas, the EU has a habit of agreeing to things at the eleventh hour. In this event, of course Brexit will be delayed.

Today is also the last day that Article 50 can be revoked. It is also the last day that the WA can be agreed by Parliament, both the House of Commons and the House of Lords. Both courses of action require the Queen to be available.

It is also the last day that “no deal” can be taken off the table, which may lead to a further vote on a general election.

If no extension has been agreed, revocation of Article 50 has not been agreed, and no WA has been agreed and ratified, both by Parliament and the European Union, the legal default position remains that the UK leaves the EU without a deal.

In that event, at or after the eleventh hour, there is still the opportunity to avoid imposing tariffs and other barriers to trade, invoking GATT Article XXIV. Of course, it may have already been negotiated, even provisionally agreed, between Boris and the EU27 that both parties exchange letters, copied to the World Trade Organisation, announcing an intention to seek a free trade agreement.

This will also be an opportunity to ascertain what Boris meant by “do or die, deal or no deal.” Perhaps, like his predecessor, Theresa May when saying “no deal is better than a bad deal”, Boris was “talking in the abstract” and has an Halloween costume already lined up.

This is also the day that John Bercow stands down as Speaker of the House of Commons. Tributes will be made for his contribution in upholding integrity, clarity and professionalism in Parliament’s quest to ensure democratic accountability to the people.

1st November

The first Witching Hour after Halloween takes place between 3 and 4am.

5th May 2022

Under the Fixed Term Parliament Act, this is the scheduled date for a general election, unless the Act is repealed before then or a general election has taken place beforehand.

Decisions, decisions, Brexit made simple

Ostensibly, Brexit is drawing to an end game. Boris pledged to achieve this by 31st October, “do or die”. Decisions have to be made but what decisions and by who? This is an attempt to make the issues simple, despite the complications.

The latest Withdrawal Agreement (WA) provides changes to the original, notably the removal of what was known as the “back stop”, sold as an insurance policy to maintain the integrity of the Single Market for the EU but in reality, at least from the British perspective, an apparently irrevocable chain that could not be broken.

Further developments came in the Political Declaration. In essence, the future relationship between the UK and the EU to be based on a free trade agreement (FTA) rather than a customs union. The difference between the two is essentially that the UK has more freedom in dealings with the rest of the world.

So who makes the decisions, according to Article 50 and international law? To make matters simple, the process differs on the type of decision but decision makers are essentially the same. It is noted that the WA and PD are an agreement between two parties, the WA being legally binding.

On the side of the EU, decisions are made by the European Council, the ministers of the governments in the EU27 countries. To agree a deal or treaty, the decision is made by the Council on the basis of a majority under qualified majority voting (QMV) subject to the later approval of the European Parliament and in keeping with paragraph 2 of Article 50.

By contrast, a decision to extend the time scale, as has already been exercised twice requires a unanimous vote by each of the 27 member states.

The other party to the agreements is obviously the UK. Article 50 tells us that “Any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements” and is supported by the Vienna Convention. The government, the executive, is responsible for negotiating treaties, in the UK subject to the approval of parliament, the legislature.

In the short to medium term, there are three potential outcomes, characterised as to leave with a deal, to leave without a deal or to revoke Article 50 and to remain. In practice, to leave with a deal sets up the negotiating process over the future relationship, characterised by the PD.

The first decision for the EU is how to respond to the request for a further extension. It will be recalled that the Benn Act provided for an extension to be requested, the letter containing the request unsigned by the Prime Minister and accompanied by a covering letter.

The response from the EU could be an unqualified yes, if ALL national leaders of EU member states agree according to paragraph 3 of Article 50. The same unanimity is required for any conditions that might be attached to any agreement to extend. The Benn Act suggests that the Prime Minister complies, however outrageous those conditions might be.

A lack of consent means that the UK would leave with “no deal” on 31st October unless there are further changes within the UK, specifically revocation of Article 50 and remaining in the EU. It should of course also be noted that the EU27 are not bound to reply immediately.

Ostensibly, the EU27 can not make that decision face to face until the provisional date of 28th October for a further summit. This could be overcome by a form of proxy discussion, through member state ambassadors to the EU.

Politicking for beneficial status on any issue by any individual member state can not be ruled out. In short, an extension can not be guaranteed, perhaps unless the conditions are merely technical. No reply before 28th October puts pressure back on the UK to agree the deal, or otherwise.

The British end of the process started with the first Saturday sitting on the House of Commons since 1982. There have been several delaying measures deployed since the first Brexit date of 29th March 2019.

It has been speculated that further delaying tactics might include amendments leading to a second referendum, People’s Vote or confirmatory vote, depending on political party. Logistically, given the time scale for this to happen, any such prospect is subject to extension by the EU, perhaps for several months. The EU27 may have no desire to subject themselves to such uncertainty for a prolonged period.

Some decisions over the WA have of course been approved, the European Council have agreed the WA and PD as it stands during their summit on 17th and 18th October. The decision is now for the UK parliament to agree or disagree with the current WA, scheduled to take place this week.

Further amendments may be laid. Whether the EU will agree to make any changes is subject to conjecture. Those who seek a further referendum may be thwarted, counter productively making “no deal” the most likely outcome. Beyond those projections, all other issues become matters of conjecture.

If there is no agreement beyond a technical extension, what happens next?

The Remain side of the argument have limited time to revoke Article 50, although it can be done. Those who hide behind a further referendum would be flushed into the open, are they false objections or is their aim really to revoke?

As already stated, the default position if the WA is not approved is currently “no deal”. If approved, what happens next?

The PD then comes into force, then decisions have been moved to the future. The provisional deadline for the end of a transition or implementation period is 31st December 2002, with provision for extension until 31st December 2022, potentially beyond. The next decision date becomes July 2020.

The range of possible outcomes becomes much wider. It may well be dependent of a future general election. Given that the current government is in a technical minority, there are decisions to be made by opposition parties. As has already been exhibited, the opposition can continue to keep a minority government in situ, alternatively, they are free to put themselves to the voters.

Current polls would suggest a Conservative majority. Potential electoral pacts confuse the issue more. Alliances between the Remain wing could lead to a murky coalition. Conversely, a Conservative alliance with the Brexit Party could lead to yet another outcome.

Whatever the rainbow of the House of Commons might present, then next July could lead to a delayed version of “deal or no deal”, to take effect from 31st December 2020. Alternatively, the can could be kicked to December 2022 or to infinity and beyond.

Even in the event of a fall back position of exercising GATT Article XXIV, the fresh back stop would become maintenance of existing arrangements for a  notional 10 years.

There are further considerations to add to uncertainty. Article 50, as already stated, provides for a process “ in accordance with its own constitutional requirements”. This is in keeping with international law, specifically the Vienna Convention on the Law of Treaties. Although the EU is not a state in its own right, many members of the EU are signatories, not least the UK.

In essence, the role of the government as the executive is recognised. For Parliament to make its own amendments and direct the executive as it has done cold be argued to be unlawful. Indeed, the Speaker, John Bercow’s, own behaviour could be argued to have been in contravention of precedent, therefore the constitution. Even a second, third and fourth extension of the WA could be argued to be unlawful, with question marks over the ECJ’s direction of considering ever closer union is ambiguous.

Domestically, as highlighted by the architect or proxy architect of the Benn Act highlighted a requirement under the Constitutional Reform and Governance Act that any treaty should be laid before the House for 21 days before it can be ratified. Unless Parliament the measures to shorten the time scale, the deal would inevitably be ruled unlawful.

It may be reasonable to surmise that if the Boris deal is not to be agreed, with appropriate provisions made, then those who have tried to hinder “no deal” have in fact created one of the outcomes they sought to avoid, arguing against limited time when their bill was pushed through in more or less one day. A further referendum appears to be dependent on every single EU member state allowing a further extension of dubious lawfulness.

Whatever its imperfections, and there are many as would be agreed by all sides in the debate, the Boris WA becomes the only compromise solution that allows all parties to claim adherence to manifesto commitments.

Those in the House of Commons, possibly soon to be re-branded as the Tower of Babel, now appeal for extra time to debate what they have been debating since 23rd June 2016. They may well have been thwarted by the terms of extension as imposed by the EU. Finally, we seem set to decide between “leave with a deal”, “no deal”, Remain and GATT Article XXIV – perhaps.

Finger of fudge

It seems that a new Brexit deal has finally been agreed, for the time being at least. There are still hurdles to leap, not least in EU and British parliaments. Have developments been sufficient to give us all a treat?

Juncker has outlined a summary of intent: “There will be no border on the island of Ireland and the Single Market will be protected”.

For months, Remainers have latched onto proclamations from the EU that the earlier Withdrawal Agreement could not be reopened. As it happens, the first of two key changes is an amendment to the WA, specifically the protocol on the island of Ireland.

The second key change has been to the Political Declaration, emphasis on the future direction being away from “close regulatory alignment”  towards a free trade agreement (FTA). There have been compromises. If a deal comes into effect, with a view to an FTA, then GATT Article XXIV provides for a seamless transition on 1st November with no tariffs applied on trade between the UK and EU.

In essence, the Irish issue has been addressed by giving Northern Ireland its own status with a foot in two camps. Politically, the North remains as part of the UK. The Common Travel Area remains the same as it has since the 1920s apart from a WW2 gap.

As for trade, Northern Ireland is to comply with a proportion of Single Market rules. Effectively, a notional regulatory border would exist in the Irish Sea, although for practical purposes, processes would be carried out on land. Goods sent from the rest of the UK for use in Northern Ireland would have to be registered. Those for onward exports to EU via the republic would be subject to regulatory checks. No tariffs would exist between North and South.

Those goods crossing the border between the North and Republic would be subject to customs checks away from the border through a variety of compliance methods.

The effective change is that the `backstop’ is no longer indefinite. The North can remove itself from the backstop over a four year cycle. Further detail will emerge although it is clear that the rest of the UK will not be bound within the Customs Union.

Crucially, in order for the new deal to come into effect, Parliament has to approve the new deal. The recent Benn Act provides us with a time scale, by the 19th October, this coming Saturday.

It will be remembered the previous WA, was voted down in the House of Commons. The backstop had been a key point of contention. The so called Brady Amendment provided a key point of consensus, that the WA could pass if the conditions surrounding the backstop were to be limited, specifically to be replaced with alternative arrangements to avoid a hard border.

Ostensibly then, parliamentary arithmetic would have been satisfied had the current agreement been presented to Parliament now. However, doubts remain as to whether this will pass for some very key reasons.

Central to the debate will be politicians elected within Northern Ireland, notably the Democratic Unionist Party (DUP). They may point to the semi-detached status, extra regulation and costs being attached to trade from the British mainland, without the same freedom to diverge from EU standards, without any say in influencing EU regulations. A question mark over potential long term inward investment remains if the trading status is at risk of change every four years.

On the so-called right wing of the Conservative Party, the ERG, many other criticisms of the previous WA still apply. The divorce bill is still in the order of £39 billion. Control over fish waters is not immediate, there are still implications for shared defence policies. Early signs from the ERG include Steve Baker’s description of the new agreement as “tolerable”.

It is the job of her Majesty’s Loyal Opposition to oppose. Early signs are that opposition parties are focusing on changes to the Political Declaration, on the one hand allowing for divergence from EU standards, on another level potentially allowing the weakening of employee rights.

Given the state of the current Parliament, many of the objections are false objections. Boris Johnson runs a minority government having been defeated on every issue so far. A general election is surely imminent given the House ‘s ability to paralyse the executive. The future relationship will, in effect, be an issue between the EU27 and whoever forms the next government, therefore potentially subject to change.

What would be ruled out of the equation however, is that if the new deal is accepted, Britain leaves the EU on 31st October. Revoking Article 50 would be ruled out. Returning to the EU would require a fresh application, probably without the current rebate and with a commitment to move towards adoption of the Euro.

We therefore move to the real objections, thinly hidden behind the veil of a People’s Vote, second referendum or confirmatory referendum. Clearly, to vote against a deal leaves the option of leaving without a deal, often apparently used as a smokescreen, or revocation.

The balance of power could now be argued to be with two groups. One is what could be seen as the democratic wing of the Labour Party, those in predominantly Northern, Welsh and coastal constituencies. The other is what logically may be referred to as the left wing of the Conservative Party.

Some have already swapped their allegiance, the ever changing number of Change UK, the fastest growing parliamentary party, the Lib Dems who have gained seven new MPs since the last election, four of them former Tories.

The other members of that wing, largely Oxbridge `elite’, a significant proportion at university with Theresa May (Hammond, Duncan, Green, Grieve) are there to be exposed. If May’s deal was worth voting for, what of the outcast Oxford classicist Johnson’s deal?

Another referendum represents further delay. In order to do so, Article 50 provides for a request from the UK, meeting legal requirements under the Benn Act with the unanimous agreement of the 27 remaining EU states.

So, what of the EU view?

It has to be recognised that one of the winners from the new WA is the republic of Ireland. Within the text are provisions to maintain current transit arrangements for Irish exports to the EU, using airspace or an efficient road corridor from western to eastern British ports and onward transfer. The Irish power of veto in some areas of EU decision making provides a powerful weapon, the UK on its own being a dominant export market for Irish produce.

Early indications from the likes of Tusk, Juncker and Barnier have suggested no further extensions, which in any case have questionable legal grounds. No extension means no more referenda, therefore no deal. As Juncker summarised: “I rule out there being any kind of prolongation”.

In fact, given the state of some EU member economies, uncertainty over arguably the most important export market, the UK, has been biting in manufactured goods, particularly the motor vehicle industry. It only takes one country to veto an extension to ensure that it doesn’t happen. The default position reverts to WTO rules, some would argue better for the UK.

Questions remain, largely as a result of political processes The big question still to ask of all provisions is “when?”. The Transition Period is scheduled to end on 31st December 2020 but can be extended until 2022, perhaps future fudges extending that further. It will be remembered than many of the EU’s supposed negotiations are on hold, some for over a decade.

When will we finally leave, lock stock and barrel? When will Britain regain control of coastal waters? When shall we strike those Commonwealth and global FTAs?

On balance, the Johnson Agreement is a fudge of the Irish issue. It has become, the only, therefore best deal on the table. Whether by accident or design, Boris’s efforts have produced a situation where anyone other than the DUP who votes against a deal is exposing themselves as an opponent to the referendum outcome. Electoral success is probably assured.

Yes, 31st October could be a Halloween trick but in fact, the fudge provides a multi pack of fingers, salvation for the Republic of Ireland economy, the best of both worlds for Northern Ireland, maintained export markets for the rest of the EU27. In fact, to borrow Steve Baker’s phrase, the finger of fudge, although not perfect, is just enough to give a treat to all but the lactose intolerant and political vegans.


Mole hill

Mole hill or mountain?

The Supreme Court has decided. Boris Johnson has acted unlawfully. The eleven law Lords and Ladies leapt into deciding that he incorrectly advised the Queen. This Prorogation of Parliament was found to be wrong.

Has he dug himself into a hole? Is this a media mole hill or a mountain for Boris to climb?

The public judgement has let to a host of quotable headlines: “the decision to advise Her Majesty to prorogue Parliament was unlawful” – “it had the effect of frustrating or preventing the ability of Parliament to carry out its constitutional functions” – “without reasonable justification”.

A variety of cases led to a landmark judgement. In England, Gina Miller appealed an unsuccessful case, in Scotland, Joanna Cherry made more headway with the Divisional Court in appealing a decision by the Scottish Inner House.

Ultimately, the Supreme Court framed three questions. Firstly is the case justiciable, open to their intervention. Secondly what is the extent of parliamentary sovereignty and government accountability.

Thirdly, the specifics of this case were “whether this prorogation did have the effect of frustrating or preventing the ability of Parliament to carry out its constitutional functions without reasonable justification”.

The situation arose through a combination of circumstances which can be tracked back to Spring this year. Theresa May yielded as Prime Minister, the Conservative Party producing a timetable to elect a new leader. The background to that was repeated defeats over the deal that May had agreed, if not negotiated in the accepted sense of the word, with the EU over the terms of Brexit.

One of the side effects was that May did not bring a State Opening of Parliament and Queen’s Speech, normally an annual event outside election years. In her case, May’s 2017 Queen’s Speech had been designed for a two year parliamentary session. Indeed, in April, former Shadow Leader of the House Chris Bryant had called for a Queen’s Speech to be presented. This was repeated by his successor, Valerie Vaz in May this year.

In fact, this had been the longest session of Parliament since the English Civil War. Quite naturally, a new Prime Minister sought to bring a new Queen’s Speech, therefore new session, at the earliest opportunity. The proposal was to do so on 14th October. Prorogation was sought on 28th August.

In years past, the advice to the Queen to prorogue Parliament for a new State Opening and Speech may not have been an issue. Party conference season has been in the Autumn since around 1950. Until 2011, the summer recess has continued until October. This is only the ninth year that Parliament has in fact sat in September, before taking another recess before conferences.

Unsurprisingly, this prorogation for a Queen’s Speech has been unprecedented in modern times. It covers the conference season when we would not expect Parliament to sit, therefore has had the effect of suspending a mid term parliamentary session for five weeks. This may have proved to be a mistake on the part of Boris, giving the Supreme Court a launchpad for its decision.

The State Opening of Parliament has typically led to a suspension of around a week beforehand. In part, this gives time for the government to finalise its legislative programme for the coming year. On the logistical side, it has been a tradition since Guy Fawkes to check for explosives, nowadays other forms of security.

It may be a point worth noting that had this prorogation been judged to be lawful, a general election could have been held before the key EU Commission meeting on 17th-18th October, potentially allowing a new, or existing, Prime Minister the opportunity to conclude negotiations.

It becomes a technicality, therefore implicitly a point of law, that a recess from September to cover the conference season would have meant a net loss of a handful of days of debate due to prorogation.

This brings us back to the Supreme Court decision. It should not have been unexpected that the judiciary might have found a case that they have the power to intervene.

It is, of course, a matter for conjecture whether the decision would have been different had a recess been voted for. As Guy Verhofstadt had pointed out, after the current Article 50 extension had been agreed “Their (MPs) first decision was to go on holiday”.

Paragraph 56 of the judgement provides for their own conjecture: “Parliament might have decided to go into recess for the party conferences during some of that period but, given the extraordinary situation in which the United Kingdom finds itself, its members might have thought that parliamentary scrutiny of government activity in the run-up to exit day was more important and declined to do so, or at least they might have curtailed the normal conference season recess because of that”.

Paragraph 50 suggests that a shorter period of prorogation “will be unlawful if the prorogation has the effect of frustrating or preventing, without reasonable justification, the ability of Parliament to carry out its constitutional functions as a legislature and as the body responsible for the supervision of the executive”.

Paragraph 51 extends that: “The Prime Minister’s wish to end one session of Parliament and to begin another will normally be enough in itself to justify the short period of prorogation which has been normal in modern practice”, the key word perhaps being “short”. Paragraphs 56-61 carry a number of references to the time period.

One of the effects of prorogation rather than recess is the capability of other aspects of parliamentary procedure to take place: “Scrutiny committees in both the House of Commons and the House of Lords play a vital role”. Therefore, those committees cannot meet, nor publish reports.

With the benefit of hindsight, it might be that a simple part of the Prime minister’s approach could have been modified: “ It will be apparent from the documents quoted earlier that no reason was given for closing down Parliament for five weeks”, assuming that repeated references to “five weeks” is a hint to the reasons for the outcome.

It is another matter for conjecture that had Boris identified the the status of a minority government, the inability of a to pass legislation, the importance of being able to present a strong government with clear endorsement to the EU Commission meeting, whether that would have been sufficient justification. A request for prorogation could have leveraged a general election.

Amid the hysteria and rhetoric surrounding Boris’s behaviour, clarity is lost on the legal meaning of the word unlawful: “contrary to or unauthorized by law”. It may be that no law has been broken, simply that the case has not been covered by specific law, therefore a broader constitutional context might need to be decided.

Instead, the Supreme Court has interpreted limits, in its own words: “marking the boundary between the prerogative on the one hand and the operation of the constitutional principles of the sovereignty of Parliament”.

In short, there has been no evidence to support allegations that Boris “lied to the Queen”. In future, a sufficient case needs to me made to justify a prorogation of unprecedented length.

So where do we go from here?

Implicitly, a further prorogation to allow for a State Opening of Parliament and subsequent Queen’s Speech is allowable. However, a general election before the EU Commission summit is now impossible, before the scheduled date of leaving the EU barely possible.

It now falls upon Her Majesty’s Most Loyal Opposition to determine the constraints under which a general election can take place. It might be assumed that a vote of no confidence should be sought immediately when Parliament is reconvened.

Logistics might dictate otherwise. Two previous attempts to bring about an election, therefore taking responsibility and leadership over Brexit policy, have been turned down by the opposition. Although polls suggest that Boris would lose support if Brexit does not take place by 31st October, they also suggest that no other party is strong enough to gain a majority. Perhaps secretly they have confidence in Boris? What of the Brexit party?

Perhaps ironically, the activities at the conferences that have gone ahead might split the Remain vote. Conservatives could benefit from policies not being laid bare at their own scheduled conference next week. Those who have accused the government of “kicking the can down the road” have only succeeded in kicking the can further down the road.

There are also some intriguing possibilities. Given the legal interventions over procedure, could the government bring some of its own? There are almost certainly constitutional question marks and technicalities that are open to challenge.

Watch this space.

Another fine mess

From the outside looking in, the House of Commons has become a comedy. It is hard to pick a genre, farce, slapstick, Month Python – or is it the theatre of the absurd?

The government, even given a confidence and supply agreement with the DUP, is technically in a minority. The opposition don’t want the government but don’t want an election to replace them. Neither do they seem capable of forming a government of their own. However, they are united in opposing a so called “no deal”, yet are unable to formulate a positive message for a way ahead.

The issue is not in fact a final contract but over the Withdrawal Agreement, covering the terms of leaving the EU. This includes setting up discussions for a longer term arrangement covered by an accompanying Political Declaration. Those discussions could take many years.

It seems as though Boris Johnson will not be allowed his policy of keeping the option of honouring his promise to leave the EU on 31st October 2019. Neither can he seek a mandate in a general election.

So how did we get into this mess?

Despite a long history, the start of the crunch point was the referendum campaign of 2016. A simple binary question was presented, to remain in the EU or to leave the EU. Despite the obvious goals, there were a host of players in between them; left wingers, right wingers, strikers and defenders.

Among all of the nuances, the key question was whether decisions should be made on behalf of the British people in Brussels or in Westminster. Obfuscation came from different considerations, whether economic, immigration, trade or indeed any other policy.

A vote to remain was implicitly to accept the principle of ever closer union, exhibited in successive treaties, the future direction of travel having been outlined in the Five Presidents’ report. It is a legitimate position to confirm economic policy constraints imposed by the Maastricht Treaty and to step closer to tax harmonisation, perhaps more so now when the UK government has not been able to deliver on many promises.

A vote to leave was a vote to restore the full sovereignty of parliament, decisions to be made in the UK A former remain campaigner, Theresa May, was later to summarise on multiple occasions, the vote to Leave was to “return to Britain control of its borders, laws and money”.

It is now a matter of history that against the odds, the Leave side won the referendum. The Prime minister who had given the electorate the choice had identified that: “What the British public will be voting for is to leave the EU and leave the single market.”

Although the leaders of the campaigns were both Conservatives, the appointment of the official camps was decided by the electoral Commission. Politicians of all parties made their positions known, there not necessarily being a consistent approach on party lines. Labour, too, had leavers and remainers.

Perhaps it was the first big mistake that David Cameron’s successor chose to exclude the possibility of forming a cross party committee from what had been a cross party campaign. We may never know what was the process that led to Andrea Leadsom not standing in a leadership election run off.

Most would now accept that May also made the mistake of calling an election, making Brexit a party political issue. A third error can be argued to have isolated the DexEU department, the infamous Chequers Agreement driving us towards what has become known as the Withdrawal Agreement, sidelining the David Davies preference for a free trade agreement, also endorsed by Donald Tusk.

A catalogue of other mistakes has littered the route. Nevertheless, other mantras evolved, not least during the 2017 general election; “nothing is agreed until everything is agreed” and “no deal is better than a bad deal”. Critics from both camps of the referendum campaign would probably agree that the deal ultimately presented was a very bad deal for the UK, great for the EU.

So where are we now?

Quite naturally, organised opposition parties are doing their job of opposing a Conservative government with minimal accountability. It is open to conjecture how effective that opposition would be to a cross party consensus group.

The options have fallen into three broad groups; revoke Article 50, be prepared to leave without a deal or to take “no deal” off the table. It would seem to be generally accepted that the “people’s vote” grouping effectively support the first option, in the House of Commons if not the general population.

The election of Boris Johnson as party leader has brought things to a head. It is unsurprising that in making Brexit a party issue, factions within the governing party have ultimately channelled the course of events. The ERG group was opposed to the bad deal. Those who voted to take “no deal” off the table have had the Conservative Party whip withdrawn, or at least suspended.

Media analysis helps to shape impression an language around the issues. Of course the media are on the whole impartial in the sense that all parties will receive proportional coverage. What lies behind those positions?

Revoke Article 50 is a legitimate position. Many in that camp have genuine convictions. Indeed, for a binary question, it is probable that people made a grey decision on a black and white question. Equally, the Leave camp have genuine convictions.

It is natural that those who agree with the decision to leave, whether 100% or 55%, have left it to the government to get on with finding a solution. Of the 48% who were on the losing side, it is also natural that they should express a democratic right to influence outcomes. Inevitably, some will take to public protest.

Perhaps that is why the “no deal” camp have been portrayed as “extremist right wing” with all the associated language. “Crashing out” is far more evaluative than “leaving without a deal if a satisfactory deal can not be agreed”. It is true to say that “leaving without a deal was not on the ballot paper”. It is also true to say that “leaving with a deal was not on the ballot paper”. However, “no deal is better than a bad deal” was an electoral pledge.

By the same token, “taking no deal off the table” can be labelled as a ‘moderate’ position. Curiously, the nominal architect who introduced the anti no deal bill in Parliament is Hilary Benn, a Remainer. His late father was a key critic of a perceived democratic deficit in EU institutions and a focus for many in making their decision to vote Leave.

An amendment to reconsider the Withdrawal Agreement was proposed by another political son, Stephen Kinnock, supported largely by Labour MPs in Northern Leave constituencies. Whether by accident or design, the amendment is reported to have attracted little support in the voting lobby yet has gone through in the absence of government tellers.

So where are we now?

The “people’s vote” camp are represented by a new Lib Dem leader, calling for a second referendum yet refusing to accept a “leave” vote should it happen. Conversely, the leader of Change UK when challenged has said she would accept the outcome.

Remain arguments remain the same. However, cohorts of MPs from different parties have sought some sort of compromise, professing to respect the referendum result.

To leave without a deal is an option that is currently in the process of being removed. Nevertheless, the camp who would keep the option open insist that this is the only way to gain leverage in reopening the Withdrawal Agreement. The benefit is more immediate policy independence with the prospect of falling back on GATT Article XXIV, subject to the agreement of the EU.

Ostensibly in the middle are those removing “no deal” although parliamentary support for this route include the Remain and “people’s vote”sides. The balance that held power over the outcome of the “no deal” vote came down to 21 Conservatives no longer bound by the whip. All were against Brexit during the referendum, a majority Oxbridge graduates, four of them at Oxford with Theresa May.

There is another perspective to consider, that of the EU negotiators and leaders, who have to unanimously agree to a potential extension. If “no deal” has been taken off the table, there would appear to be little or no incentive to reopen negotiations.

The Withdrawal Agreement provides leverage. Barnier is on record as saying that the backstop allows the EU to “put permanent pressure on the negotiations about trade”. The British Prime Minister has little or no room to decline stringent conditions that the EU might impose. The only question for the EU is what terms to impose.

So what is the solution?

Boris may have been put in a position where Parliament does not allow him to honour his word. For the time being, he is also denied the opportunity of a general election. However, this is the route to a way out. If the Leader of Her Majesty’s Most Loyal opposition is to be believed, as soon as the latest bill is in force, then a poll date can be decided, provided of course that a majority of other MPs agree with their leaders on a vote of no confidence along with the old guard cum new rebel.

Under those circumstances, were Boris to win, he can claim a mandate to leave on 31st October, deal or no deal. His first act, following a Queen’s Speech would surely be to repeal the constraints prior to the EU Council meeting on 17th-18th October.

Opinion polls would tend to suggest that in order to deny a Conservative majority, opposition parties would have to come to an electoral pact, the mechanics of which would surely be beyond acceptability for all of the parties involved although a new genre of comedy could be created.

If the polls are wrong, it could take, days, even weeks to form a coalition. Boris could still be Prime Minister attending the European Council meeting despite being in a minority.

In either event, it could be an option for Boris to defy the instruction from the House of Commons

in contempt of Parliament. The last fine for this offence was imposed in 1666, imprisonment in the clock tower being in 1880 although health and safety considerations during renovations might make that penalty unlawful.

We are certainly due interesting, if not historic times. The twists and turns will be simply unprecedented.