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.