The “Brexit Chicken” Game

The US Elections

Real Clear Politics predicts that Hilary Clinton will win 333 Electoral Votes in the Electoral College as against 205 for Donald Trump.   Nate Silver’s Five Thirty Eight blog gives Clinton an 86.5% chance of winning the US Presidency.  It also seems likely that there will be a small Democratic Party majority in the Senate.   So the nightmare of a Trump presidency is receding – which is good news for the free world.

Brexit Developments

Teresa May’s first session as Prime Minister at the European Council  did not go that well, especially when the  difficulties of negotiating a bespoke trade deal with the EU were highlighted by the collapse of the EU-Canada negotiations.

See this in the Telegraph: “EU is ‘impossible’ to do deals with, Canada says sparking fears about Brexit negotiations” and this in the Guardian: “Theresa May’s awkward EU meeting sees little progress on Brexit”.  The Financial Times is a bit more measured: “May’s first EU summit ends with warning of rough road ahead – European leaders adopt tough stance on Brexit talks while leaving door ajar“.

Not to put too fine a point on it, Teresa May is finding that membership of the EU is akin to having checked into the Hotel California in the Eagles great track available on YouTube – “We are programmed to receive / You can check out any time you like / But you can never leave!“.

The Prime Minister is not yet able to trigger the Article 50 process.  The Divisional Court has heard the arguments and will now be considering its judgement.  When that is delivered there may well be a “leapfrog” appeal to the Supreme Court which would be likely to be listed for hearing in December.  For so long as the EU refuses to negotiate prior to the delivery of the Article 50 Notice, the government is inhibited by the proceedings from making any progress.

msmpbrexit
Morgan Stanley’s track of Remain sentiment among MPs

If the Courts rule that the Article 50 process may not be commenced without the authority of Parliament, then the Prime Minister may very well  have to convince Parliament that it is appropriate to serve an Article 50 Notice.   Of course the Conservative Eurosceptics will make common cause with the lone UKIP MP and other odds and sods,  but at the moment there may not be a majority  for service.   Members could plausibly refuse to authorise the Article 50 process until there was some degree of certainty about what the future regime would be.

nature-mayfly
This Mayfly cartoon arrived with a message from The Times

The Teresa Mayfly will be aware that there are two voting schemes used in the EU Council.  Unanimity is required for some decisions. Other decisions proceed by way of Qualified Majority Voting.  Mrs May therefore has the possibility of making trouble (De Gaulle fashion) if the EU Council does not make life a little easier for her: – for example by agreeing a Brexit Scenario before the delivery of an Article 50 Notice.  It’s a strategy worth thinking about.

In this article in The Sun “Power of the City will get us a fair Brexit deal as EU chief Donald Tusk’s call for ‘hard Brexit’ spells trouble for the Euro, the columnist James Forsyth (or perhaps a sub-editor) asserts that “BRITAIN is now engaged in a game of Brexit chicken.”  On past performance, that is a game Mrs May will not loose.

 

 

 

Looming Disaster ?

The US Elections

trump3Overnight (UK Time) we saw  the last Presidential Debate of this cycle – in Las Vegas.   It took place at 2 am BST.   As fully anticipated in the US media, Donald Trump did not perform well.

Just think how embarrassing it would be to have Trump flying into any foreign capital posturing as the leader of the free world,  or how dangerous it would be to let such a loon have control of the US nuclear deterrent.

Thankfully, Hilary Clinton is still ahead in the polling and last night should improve her position and perhaps provide the impetus for improvements in the Senate and House races.

This analysis from Nate Silver, one of the most reliable sources on the significance of US polling, is worth mentioning:  “Clinton Probably Finished Off Trump Last Night“.  Silver gives Clinton an 84.4% chance of becoming President and says there is a 71.6% chance of the Democrats regaining control of the Senate.

The Real Clear Politics  (“RCP”) site, which is rather more in favour of the Republicans,  puts Clinton at 333 electoral votes and Trump at 204 – 270 votes are required to win.

RCP also predicts that the Democrats are likely to retake control of the Senate (which is important as regards confirmation of officials and judges), but does not yet suggest that the Democrats will have a majority in the House.

So it is looking as though a looming disaster for the USA has been averted.

Trump is now alleging that the election process itself will be rigged against him.   Since the polling is largely controlled at state level, the Trump allegations are not exactly complimentary to the many Republican officials responsible for the conduct of elections in “red” (i.e Republican-controlled) states. See this report from Business Insider: “Donald Trump claims the election will be ‘rigged’ — and critics have called that preposterous and dangerous”.

See also this on the US Politico site: “Republicans despondent that Trump threw away final debate“.    Apparently Trump is planning a post election career as a media mogul – see this in the Huffington Post: “Donald Trump May Launch TV Venture After Election” and this assessment by Paul Brandon on USA Today: “Trump is a vanity project run amok: Column”.

The worrying thought is that Trump’s TV project may be an endeavour to instigate paranoid “nativism” world-wide with Trump supporters in the USA,   UKIP and other Brexit supporters in Britain,  Front National supporters in France and  supporters of other similar parties elsewhere across Europe.

The Article 50 Judicial Review

The Guardian had this: “Parliament ‘very likely’ to be asked to agree Brexit deal”, the Telegraph had this: “Parliament will get a vote on Brexit treaty, Theresa May confirms”. The Independent reported: “Brexit: MPs ‘very likely’ to be given parliamentary vote on EU withdrawal deal, government lawyer says” and the Financial Times had this: “Brexit deal ‘likely’ to involve parliament – UK government lawyer“.

The “government lawyer” in the court proceedings in question was James Eadie QC of Blackstone Chambers who is the real leader of the Government’s defence team in the judicial review proceedings before the Divisional Court, not the “lawyer in the government“, i.e. The Rt Hon, Jeremy Wright QC MP, who was appointed by David Cameron as  HM Attorney-General. – to the surprise of  many in the legal profession, see: “Just who is Jeremy Wright? Lawyers have never heard of new attorney general“.

Then the Daily Mail had this: “High Court judge is left ‘baffled’ by Government lawyer as he defends Theresa May’s right to start Brexit talks without a Commons vote“.  The particular “government lawyer” was, this time, Jason Coppel QC.   But the issue before the Court was not about starting talks.  Ministers can talk as much as they want to  -the issue was  whether an Article 50 notice could be given to the EU  without the authority of Parliament.

It may be helpful for readers to know that the shorthand writers’ record of the entire proceedings before the Divisional Court are, exceptionally, published in full on the Courts and Tribunals web site:  “Santos and M -v- Secretary of State for Exiting The European Union: transcripts”.

So it is possible to read the full text of the exchanges between Mr Coppel QC and the Court on the 18th October.  Mr Coppel was doing his best on behalf of the defendant Secretary of State.  But the tension between the use of prerogative powers by Ministers of the Crown and the role of Parliament is a knotty one which has been troubling the Courts since the famous Case of Proclamations in 1610.

On reading the transcripts, the case for the defendant Secretary of State seems to have been presented about as well as it could be.  Opinions are divided as to which way the decision will go – one has the hope that the Courts will come down in favour of Parliamentary control of the Brexit process – but this is a difficult case to predict.

One of the issues the Divisional Court and later the Supreme Court may have to consider is whether a an Article 50 Notice can be revoked once given.  Nobody knows for sure and, if it were necessary to decide the point,  it would probably require a reference to the European Court of Justice.   This Financial Times article by the FT’s legal commentator explains why the question might be important: “Can an Article 50 notification be revoked?”  In an earlier article, “Brexit and the challenges of reality“, Mr Green recounts how Article 50 came into being as “a sop to Eurosceptic media” and that “Article 50 was never intended to be a practical provision. It was there just for decoration.” 

There was also this in the Financial Times: “Brexit Briefing: The surprise surge in sterling – The excitement over a lawyer’s comments on Article 50 is overdone“.  This report has probably the best account of the way the proceedings went – possibly because the FT  has the benefit of a legal commentator who understands the issues.  This passage of the report is noteworthy:-

The government claims it can use so-called royal prerogative powers — the residue of powers once held by British monarchs. But the case appears finely balanced, with several legal experts suggesting the government had underestimated the strength of the case against it.

Listening intently to the submissions, the three senior judges led by Lord Justice Thomas, the Lord Chief Justice, frequently interrupted the barristers with questions or pressed them on legal points but have given no indication of which way the court will rule.

Lord Justice Thomas occasionally confessed that he was “baffled” by elements of the government’s argument“.

When a Judge says to counsel that he is “baffled” it usually means that the Judge is not buying the argument being advanced.

Hard -v- Soft Brexiteers

Allister Heath, the Deputy Editor of the Torygraph Telegraph writes: “Why it’s time for a new campaign for Brexit“.

It is always sad to see a chap writing such tripe.  Particularly when the author has been as expensively educated as this one.  There is no need for a new “Brexit” campaign.  The  decision has been taken.  The UK will now seek to leave the EU.  That is the policy of the Government.  The issues now are the terms on which the process will go forward and whether Parliament will have effective control of the process.

By way of contrast, writing in the Guardian, Polly Toynbee opines: “The public are already turning against Brexit. When will Theresa May listen?

There is only one way out of this. The British people may decide the cost is too high. Before anything has happened yet, they can see how the prospect of hard Brexit is already causing serious damage. The pound plunging by 17% is a national disaster, predicted to fall further: only those who supported Brexit whistle in the dark, pretending it’s good news. It will help a few manufacturers and Bond Street retailers of luxury goods, but our precarious over-dependence on imports means steep price rises ahead in petrol and food are rather more important than cheaper Burberry handbags. We may decry an unbalanced reliance on the finance industry, but wrecking it before building up anything else will leave a chasm in treasury revenues, more cuts, more job losses.

People aren’t stupid. They may want less immigration – but not at any cost. The stupidity was a referendum campaign that boiled everything down to that one issue. But people don’t think just one thing, they have many views and priorities: when the facts change, they tend to change their minds.”

The Guardian also has this: “Philip Hammond attempts to ease concerns over hard Brexit” and even David Davis seems to be recognising some belated understanding of the possible consequences – see this in the Financial Times: “David Davis warns EU partners not to weaken City of London – Brexit minister says move would backfire and destabilise markets“.

 Après May le déluge ?  

may-at-cpc2The Prime Minister is in Brussels this evening for her first European Council as Prime Minister.  It will be interesting to see how the “getting to know you” process develops.

Early reports by the BBC give the atmosphere:  “Theresa May: We’ll still work closely with EU after Brexit” – “May’s slightly awkward EU debut” – “Europe’s phoney war“.

It is hard to exaggerate the scale of the disaster the British people have inflicted upon themselves with their decision to leave the European Union, taken in the referendum last June.

He then goes on to set out in some considerable detail that decades of mismanagement of the economy and industrial strategy over many years (including the Thatcher years) have now made the UK economy overwhelmingly dependent on foreign enterprise and foreign capital.

As Head points out: “Unless May soon changes course, Britain and its economy could face a decade or more of debilitating uncertainty.

Teresa May is to be congratulated on her wish to have a “one nation” government  but her obsession with Brexit and bringing an end to EU immigration is exceedingly dangerous.

 

 

 

 

 

It’s the Economy, Stupid!

The US Elections

farageetrumpFor obvious reasons, US elections matter to all the nations of the free world since the US President is the leader of the free world.  The US election is now but three weeks away and a matter of real concern has been whether Nigel Farage’s friend, Donald Trump, might succeed in his campaign for the presidency.  Trump is quite plainly unfit to hold office.

Fortunately, the two best sites for the interpretation of polling results think that that the loutish Trump is unlikely to succeed in his bid.  Fingers crossed everybody.

270 electoral votes in the electoral college secure the presidency.  The Five Thirty Eight Web Site gives Hilary Clinton an 81.5% chance of winning with 320 electoral votes and the  Real Clear Politics has its “No Tossup’s Map ” at 340 electoral votes for Clinton and just 198 for Trump.   Sighs of relief in the Chanceries of Europe.

However, responsible opinion is expressing  its concern for the impact of defeat on the Republican Party – see this in the Chicago Tribune: “The Republican Party after Donald Trump“.

Nativism in the USA and in the UK

While perusing the RCP site,  a link to an article appeared published by “The Daily Beast”.  Clive Irving has often written for the Daily Beast – see the list here .  Many of them are what one can describe as “a good read” – particularly this:  “The Pie that Won World War II” which brought back childhood memories.

But  the article the RCP site linked to was this:  “Rude Britannia – The Rise of Hateful Little England – After the Brexit, hate crimes have exploded and Britain’s new government fuels an economic disaster by purging universities and businesses of foreigners.

This city feels like the capital of a country that has been hijacked by a tribe for whom London represents everything that they hate: they hate its prosperity, its cosmopolitanism, its social diversity, its cultural exoticism, its bawdiness and most of all its un-Englishness.  The hijackers are the Little Englanders, a noisome and virulent strain of nativism that has taken power in Westminster. For several generations they had been successfully marginalized. Now they are mainstream, put there by the vote to leave the European Union, Brexit. They dominate the ruling Conservative party and came to power, narrowly, as unexpected winners, gloating.  But the nation has suddenly woken up to a calamity. The Brexiteers had no plan for how to proceed. The new government is clueless.

fall-in-pound
The Collapse of Sterling

Indeed, Brexit is proving to be the greatest single destruction of economic value ever carried out deliberately as an act of policy by a British government. In the last two weeks the pound sterling has hit a 60-year low against the dollar (a dive greater than that of the Argentine peso) and economists are warning that by the end of 2017 it could sink to a one-to-one parity with the dollar.”

There is an obvious relevance to the US election:  The “Little Englanders” (ie UKIP and Brexit  Conservatives)  have much in common with the odious Donald Trump’s core supporters who are essentially part of the same tribe  – see this in Fortune :- “How Donald Trump’s Nativism Ruined the GOP“.    Not for nothing did Nigel Farage speak at a Trump rally – remember this Guardian article:  “Nigel Farage: from Brexit hero to Trump’s little helper. That’s some career path“.

ukip7
UKIP Poster

Nativism and the way it is used by politicians on the right is nothing new and it has been the subject of academic study.

See:  “The Relationship Between Immigration and Nativism in Europe and North America“.  UKIP made very good use of nativism to break into UK politics at all and its reliance on nativism during the referendum campaign is beyond question.

BreakFar
UKIP Referendum Poster

UKIP was not the first UK party to misuse the fear of immigration as part of an election campaign. But the Conservatives are far from “holier than thou” in this regard.   Many readers will be old enough to remember the Smethwick by-election and “If you want a nigger neighbour, vote Labour“.  So we have to be honest and recognise that in the referendum,  UKIP was only preaching a new variant on a theme previously used by Conservatives.

Now Nativism lies behind the moves to achieve “Hard” Brexit rather than the the kind of Brexit arrangement which would protect the UK economy.

The Telegraph has this:  “Britain may end up with the most ‘extreme’ version of Brexit because there may not be enough time to negotiate with Brussels, say ministers“.   There is every reason to suspect that this is an accurate assessment of the position.

But that is no bad thing.  If anything, it is the very best of reasons for the government to concede the point that Article 50 should only be triggered with the advice and consent of the House of Commons.    There has been no previous attempt by any country to leave the EU by way of Article 50.

As the moment,  the institutions of the EU (and to a lesser extent the governments of the EU nation states) are refusing to negotiate. But the UK remains a Member State meanwhile with all the powers of a member state in the Council of Ministers.   So there is every good reason for the UK not to trigger Article 50 until it has clear commitments from the other Member States as to the future. It is worth remembering that the UK is one of the larger UK Member States and this has importance in relation to qualified majority voting.

Take a pinch of Salt

The Telegraph has this: “MPs plotting to delay Brexit with Commons votes are ‘subverting will of the people’, warns Priti Patel“.  She said much of the same on the Andrew Marr Show.  The Guardian has this: “Brexit debate in parliament would give game away to Brussels, says minister“.

priti-patel
Secretary of State Priti Patel MP

The Minister in question is, of course, Priti Patel, a hard Brexiteer.   “Patel” is the 3rd most common name in London, ranking after “Brown” and “Smith”,  but before “Jones”, “Williams” and “Johnson”.   Patels are to be found all around throughout the world and they are notoriously able in financial affairs.  The Minister is the daughter of a Ugandan Asian shopkeeper who, very understandably,  fled to the UK from Uganda in the time of Idi Amin.   Her father was at one time a member of UKIP and she herself was a Referendum Party member and a lobbyist for the tobacco and alcohol giants British and American Tobacco and Diageo.

Patel left the Referendum Party and joined the Conservatives under William Hague and was promoted to office under David Cameron.  That appointment was itself controversial:  see this in the Independent in July 2014:- “Priti Patel MP: Who is the new Treasury minister who supports death penalty and rejects plain packaging for cigarettes?“.

Patel was a Vote Leave campaigner. Her stance was clear from this article in the Telegraph: “Priti Patel interview: It’s not ‘racist’ to worry about immigration“.   Writing in the International Business Times, Jasmin Alibhai-Brown portrayed her thus:  “EU referendum: Priti Patel typifies immigrants who become Little Englanders as they prosper“.  More simply:  Fewer EU migrants = good for the Patel community members who wish to come to the UK.

Of course it is sad to see the May government at work appeasing Brexiteers.  When she became Prime Minister, the Spectator had this: “Joseph Chamberlain, Theresa May’s new lodestar – Joseph Chamberlain brought working-class radicalism to the Conservatives“.  To follow the approach of Joseph Chamberlain in domestic policy is no bad idea.  But appeasement was not his policy but that of his son.

It’s the Economy Stupid!

The Financial Times has this: “Germany warns hard Brexit will damage UK car industry- German industry chief Matthias Wissmann says single market exit would see output shift east“.  The Japanese firms who manufacture cars in the UK have said the same.  See also this FT article about the way EU vehicle manufacturing is organised: “UK car industry fears effects of Brexit tariffs on supply chain – Suppliers say uncertainty over trade agreements may force them to relocate overseas“.

See also this FT article on the overall situation: “Sterling’s slump signals a warning, not a boon – Investors are marking down the economic future of Brexit Britain“.

After 40 years in the EU, our economy is so closely linked with the rest of the European Union that it is well nigh impossible to untangle.  Pipe dreams of a new era in international trade outside the EU are just that:  dreams.  It was James Carville, then a lead strategist in the successful 1992 election campaign of Bill Clinton against George H.W. Bush,  who posted a sign in the war room to remind everyone of the importance of the economy in any election campaign.  As the Brexit negotiations proceed – that warning is something we should all remember.

 

 

 

 

 

 

 

Who is in charge of Brexit – the Government or Parliament ?

The Article 50 Judicial Review Case

This notice appears in the Cause List for the Queen’s Bench Administrative Court today:-

 COURT 4 –  Before THE LORD CHIEF JUSTICE and MASTER OF THE ROLLS and LORD JUSTICE SALES
Thursday 13 October, 2016
At  half past 9
Applications for Permission
CO/3281/2016 The Queen on the application of Santos v Secretary Of State For Exiting The European Union
CO/3809/2016 The Queen on the application of Miller v Secretary Of State For Exiting The European Union
 

Three very senior Appellate Judges – The Right Honourable The Lord Thomas of Cwmgiedd (Lord Chief Justice) , Sir Terence Etherton (Master of the Rolls) and Sir Philip Sales (Lord Justice of Appeal) are sitting as a Divisional Court to hear applications for permission to apply for Judicial Review of the decision of the Secretary of State for Exiting the European Union that an Article 50 Notice may be given to the European Union using prerogative powers rather than on the basis of an authority conferred by an Act (or a Resolution) voted by Parliament.

Normally, judicial review applications are first heard by a single Judge of the Queen’s Bench Division of the High Court.  The decision of the Court to list the matter before a very high powered Divisional Court is a recognition of the constitutional importance of the case.

The Solicitors for the Claimants are  Mishcon de Reya and their Counsel are   Baron David Pannick QC,  Rhodri Thompson QC with Tom Hickman and Anneli Howard.

Interested Parties (not mentioned in the Cause List)  have instructed Bindmans  LLP and their Counsel are: Helen Mountfield QC, Gerry Facenna QC with Tim Johnston and Jack Williams

Counsel for the Secretary of State are:  HM Attorney General (Jeremy Wright QC MP),  James Eadie QC and Jason Coppel QC  with Tom Cross and Christopher Knight.

With the exception of the Attorney General (whose pre appointment practice was mainly before the criminal courts) this line-up of counsel represents la crème de la crème of those who regularly appear in the administrative courts, but the two tenors of the bar  will probably be David Pannick QC for the Applicants and James Eadie QC for the Secretary of State.

The issue before the Court is whether the service of an Article 50 Notice should be preceded by either an Act of Parliament or a Resolution (as recommended by The Report of the Constitution Committee of the House of Lords) or whether the Secretary of State may proceed to serve the Article 50 Notice using prerogative powers.

See this in the Guardian:” Court battle looms over Brexit legality – Senior judges will hear claims that the government cannot trigger article 50 without parliamentary approval ”.

See also this in the Financial Times: “May’s push to avoid Commons vote on Brexit faces High Court test – Challenging legal review of prime minister’s strategy begins“.  This FT article gives a rather fuller explanation of the issues before the Court.  At the end of the piece there is an apposite quotation from Nicholas Bell, a partner of Bircham Dyson Bell:-

The answer to this question will fill in another part of our unwritten constitution, so the Supreme Court have cleared their diaries for early December to hear the inevitable appeal. If they find that a parliamentary act is needed to trigger Article 50, this will seriously jeopardise the prime minister’s plan to start the process next March.

The Background

The Cameron Government decided to hold a referendum on the UK’s Membership of the European Union in an effort (i) to reduce the influence of UKIP in national affairs and (ii) to placate a minority of Conservative backbenchers (who can be described as “the Swivel-Eyed Loons”) who also wanted the UK to withdraw from the EU.

While many countries have constitutions which provide for referenda and what happens as a result, the procedure is alien to the British Constitution.  Where an Act of Parliament providing for a referendum prescribes what legislative changes will take effect based on the outcome, there is no problem with the legal effect of the result.  However, where there are no such provisions (as in this case) the referendum is advisory in nature and it has no legal effect  (although there would very likely be repercussions in electoral terms were Parliament to ignore the will of the people).

The Cameron Government was confident that it would win the Referendum Vote.  It was wrong about that.

Brexit BusPerhaps the Prime Minister was unwise to allow members of the Government and Members of his party to chose whether to campaign against the government position.   Boris Johnson and Michael Gove and others were certainly effective campaigners for the Leave Campaign.

BreakFarUKIP’s  focus on a fairly nasty anti-immigration campaign certainly had an impact on the outcome and matters were certainly not helped by the inability of the Labour Party to mount an effective campaign among its supporters.  The reasons why the Remain Campaign lost can only be ascertained by opinion polling which may or may not be accurate.  But immigration issues and a general desire to kick the government in the teeth certainly played a part.

On 23rd June 2016 the result was close: Vote Leave: 52% – Vote Remain: 48%  a majority of just 4% with a turnout of 78% and more than 30 million people voting.   England and Wales returned Leave majorities – Scotland and Northern Ireland returned Remain majorities.

david-cameron-resigningOn the day after the Referendum, David Cameron announced that he would tender his resignation to the Queen as soon as the process of electing a new leader of the Conservative Party was complete and in due course David Cameron gave effect to that announcement by tendering  his resignation to the Queen who then sent for Teresa May and asked her to form a government.

It quickly became apparent that the Cameron government had not prepared any plans for what would happen in the event the country voted to leave.  Nor had there been any serious  consideration of the economic impact on the UK of leaving the European Single Market and the Customs Union.

The New Statesman has this:  “Leader: David Cameron’s tarnished legacy – The former prime minister will be remembered for losing the EU referendum. But this was far from his only failure. ”  That article refers to a rather cruel (but accurate) remark by Michael Portillo which can be found in this article: “Cameron’s blunder and the Conservative Party leadership“.

Cameron took a gamble, lost and did the right thing by resigning.  It remains to be seen whether Teresa May will limit the damage caused by the vote to leave the EU.  At the moment things are not looking good.  She is right to accept the verdict of the Referendum but there is a world of difference between a “hard” Brexit and a “soft Brexit”.  The Article 50 dispute is about having that issue determined by Parliament as a whole and not by a government in hock to the Swivel Eyed Loons.

The Opening of the Case

The Financial Times has this account of the opening of the case:-

MPs’ vote on Article 50 for Brexit ‘fundamental’, court hears – Legal battle begins over whether May has right to trigger UK exit without putting it to parliament

The issues in this case are quite substantial and it will take several days.  The Secretary of State’s case will not be opened until Monday of next week.

 

 

 

 

 

 

 

Back to Work in Westminster

Brexit Issues are Unresolved

The Party Conference Recess is over and Parliament is back in session.  Although the Conservatives had a good Conference (certainly better than the Labour shambles), Teresa May’s government has been getting a rough ride over Brexit Issues both from the Conservative back benches and the opposition over Brexit issues.

The problem facing the government is that a majority of members in the House of Commons were in favour of the UK remaining in the European Union.  See The Conservative Difficulty page.  As of 24th March 2016, 75% of the Members in the House of Commons wished to remain in the European Union.  As of 16th May 2016 the position was 433 for Remain, 147 for Leave and 70 undeclared.  Thus, there has never been a majority in the House of Commons for leaving the European Union.

The problem David Cameron had was that most of the clamour for leave came from a group of Conservatives (principally the Swivel Eyed Loons in the Conservative Party) and the Referendum process he put in place was badly designed.  Teresa May has inherited a mess not of her making.

Paul Goodman, the former Conservative MP for Wycombe 2001-2010, who is now the executive editor of the Conservative Home Blog and a member (1st Class) of the Confraternity of Swivel Eyed Loons has this post on the blog:   “How practicable would it be for the Commons to bring down Brexit?

The answer is, of course, that the Government is stuck with the outcome of the Referendum.  It would not be practicable for the Government now to advocate ignoring the result of the Referendum. But there was not an explicit vote on leaving the single market and that is now a matter for Parliament.  Teresa May must know that leaving the single market would be something of an economic suicide pact.

The Times has this: “Hard Brexit could cost £66bn a year – Leaked Treasury papers reveal lost revenue“.  The Telegraph picks up the story here: “‘Hard Brexit’ will cost Britain £66 billion per year, claims controversial leaked Treasury report“. It is to be noted that this is not an estimate of the total losses to the economy.  It is an estimate of the loss of tax receipts for the Treasury.  

Brexit BusIt will be remembered that Boris Johnson’s Brexit Bus complained of the UK’s contribution to the EU of £350 million a week.  That figure was, of course overstated somewhat. But ignoring that, the claim was that leaving the EU would save the UK  that amount.

There was never any mention by the Leave campaign that a vote to leave would cost £66 billion a year in lost revenues – nor any description of the cuts in expenditure or tax increases which would have to be made in consequence.

The Financial Times has this: “David Davis brushes off Brexit warnings – Minister appears to signal Britain will leave the single market“.

No wonder the saner MPs on all sides of the House are w

Parliamentary Control of the Article 50 Process

The Financial Times has this: “The Commons rebellion over Brexit – May’s conference speech galvanises parliament’s pro-Europeans”:-

There are two reasons why MPs are up in arms. The first is that Mrs May gave a clear indication last week that she wants Britain to end membership of the single market. Her insistence that the UK leaves the jurisdiction of the European Court of Justice and her tough rhetoric on immigration make this clear.  Mrs May’s comments have rattled sterling investors and British business, which fears the consequences for UK trade.

Now the newly recast Labour front bench is calling for a vote on the terms of Mrs May’s renegotiation. Ed Miliband, the former Labour leader, and Nick Clegg, the former Liberal Democrat leader — are adding their voices to the call.

The second reason MPs are in a mood to confront Mrs May is they believe they are being completely sidelined. She insists she will invoke Article 50, the formal pathway to Brexit, next year without asking the Commons to give its consent. Few, if any, MPs want such a vote to try and pursue a complete reversal of the Brexit decision. But many want a say on the type of UK-EU deal she wants to achieve before she signs off on the Article 50 letter.”

The FT also has a cogent opinion piece by Damian Green who writes the FT’s Law and Policy blog: “Parliament should be central to Brexit, not marginal” and he points out:-

The current Conservative majority came to power in 2015 on the back of a manifesto that promised the UK’s role would be “safeguarded” in the single market. On this basis, the one positive mandate that the government has is to effect Brexit while keeping the UK part of the single market.

The Guardian has this: “Tory MP accuses government of ‘tyranny’ over Brexit strategy – Stephen Phillips seeks urgent debate in Commons amid calls for parliament to be given proper scrutiny of the process of leaving the EU”.

The Telegraph also has this by its Political Editor, James Kirkup: “Brexit means Brexit, but Parliament is Parliament. MPs must vote on how we leave”.

The Telegraph also has this on a live blog of proceedings in the House of Commons: “Theresa May rules out allowing MPs to vote on Brexit plans

Prime Minister Theresa May is coming under growing pressure to allow MPs a vote on membership of the European single market, with MPs from all mainstream parties arguing that the referendum result did not amount to a vote for “hard Brexit”. Conservative MP Stephen Phillips, who backed Leave in the June 23 referendum, warned against the “tyranny” of denying MPs a vote on the Government’s stance in upcoming withdrawal negotiations under Article 50 of the EU treaties.

And former Attorney-General Dominic Grieve QC MP cautioned that the Government could be brought down if it tried to force through a new deal with the EU without MPs’ approval.”

This is what Dominic Grieve told the BBC’s World at One programme:-

There’s a very well-established constitutional convention that any signing of a new treaty or alteration of an existing treaty of importance needs to be put to the House of Commons for its affirmative approval….My view is that this is a matter where the approval of the House of Commons needs to be sought before the Article 50 process is triggered….This constitutional convention would apply even if the Government was successful in fighting off a legal challenge against its plans to invoke Article 50 under its powers of royal prerogative.  The referendum was an advisory referendum and in that sense it has no legal force at all, and for Parliament to be by-passed by the administration because there’s been a referendum seems to me to be a very undesirable step to embark on.”

The View of the Constitution Committee of the House of Lords 

As pointed out in a previous post, the Constitution Committee of the House of Lords considered this issue and its report “The Invoking of Article 50” was published on 13th September 2016.  The Members of this Committee are pretty high powered and, as set out on page 5 of the Report, the Committee also had the benefit of a private seminar on the issues with:-

  • Dominic Grieve QC MP – former Attorney General
  • Lord Hope of Craighead – former Deputy President of the Supreme Court
  • Lord Lisvane, former Clerk of the House of Commons
  • Lord Mackay of Clashfern, former Lord Chancellor
  •  Dr Alan Renwick, Deputy Director of the UCL Constitution Unit
  • Jack Straw, forrmer Secretary of State for Justice and Lord Chancellor, Leader of the House of commons and Foreign Secretary.

As may be seen, the conclusion of the Committee was unequivocal:-

The referendum result was clear. Parliament is now responsible for ensuring that the Government takes forward the complex process of negotiating the UK’s withdrawal from the European Union in a manner that achieves the best possible outcome for the UK as a whole. The focus must now be on how Parliament and the Government will work together to that end.

That co-operation should start now. Parliament and the Government should, at this early stage, take the opportunity to establish their respective roles and how they will work together during the negotiation process. The constitutional roles of each—the Executive and the Legislature—must be respected, beginning with parliamentary involvement and assent for the invoking of Article 50.

One gets the impression that Dominic Grieve QC, the former Attorney General,  has the better of this argument.   However, it may well be that the issue will have to be considered by the Courts.

 

First Sunday After Tory Conference

 

Government Policy on Leaving the EU

The policy of Teresa May’s government on many issues – including the consequences of the Leave Vote – has become rather clearer as a result of the Conference.  It is worth looking back at what the Leave Campaign said would happen.

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Daniel Hannan MEP

The Conservative MEP, Daniel Hannan, (a prominent Leave campaigner), posted this piece on the Conservative Home blog last April: “Daniel Hannan: “Here’s what happens when Britain votes to Leave” in which he asserted:  “A vote to leave won’t start any countdowns. Ministers would simply be under instruction to find departure terms that suit Britain – and, indeed, that suit the rest of the EU. They would presumably begin by holding informal talks with the Brussels institutions and the other member states. Then, when the broad parameters were agreed, they would begin formal negotiations. These might be held under Article 50, the clause introduced by the Lisbon Treaty which obliges the EU to reach a trade deal with a departing state within two years; or they might be held under a different intergovernmental structure. It might be possible to reach a mutually beneficial deal very quickly…The point is that nothing would be agreed until both sides were content.”

It is surprising that a royally remunerated  Conservative member of the European Parliament could have been quite so ignorant of the likely approach of the EU institutions.  So what does the optimistic Mr Hannan say now?

He writes in the Financial Times:  “A compromise on immigration will profit Brexit Britain – Even for Leavers, the problem was never incoming European doctors or students, writes Daniel Hannan”.

 

Brexit Bus
The Vote Leave Campaign 

Readers will recall that the  leadership of the Leave Campaign adopted the UKIP immigration stance as reported in the Daily Mirror: “Boris Johnson and Michael Gove back Ukip’s policy on immigration”.  And the Remain Campaign’s position was set out in the same article:

Remain campaigners say the points-system proposal would “wreck” the economy and bar Britain from the Single Market. The official In-campaign, Britain Stronger In Europe, said think-tank Migration Watch had savaged the system in Australia as being “totally unsuitable for the UK”.

Executive Director of Britain Stronger In Europe, Will Straw, said: “This system will not work. Vote Leave’s proposal could put up immigration and it would wreck our economy, as it involves leaving Europe’s Single Market.  Australia, who have a points based immigration system, have twice as many migrants per head as the UK.  Economic experts are agreed that leaving the Single Market would lead to recession – costing jobs and raising prices.”

And we remember how UKIP campaigned-

BreakFar

The Hannan pipe dream of nice friendly intergovernmental chats with the leaders of other member states and the Brussels Institutions has not come to fruition, but the economic consequences of the referendum result are upon us.

Financial Woes 

The Financial Times has this: “Brexit bliss suffers rude awakening with flash crash – Markets offer their verdict after policy commitments issued at Tory conference strip away ambiguity”:-

This was the week in which the British government committed to launching the two-year EU exit process by the end of March and gave strong indications that the UK would leave both Europe’s single market and its customs union. In response, foreign exchange markets have hammered the pound. In the words of David Bloom, an HSBC analyst, sterling is now “the de facto official opposition to the government’s policies

It is, in fact, much more than that. A negative reaction across the despatch box in Westminster does not make Britons poorer. A negative reaction in the foreign exchange market does, by reducing the amount of foreign-produced goods and services Britons receive in return for the work they put into making goods and services to be enjoyed by foreigners.

How much poorer? The economist Tyler Cowen has suggested that since Britain spends about 30 per cent of its income on imports, a 10 per cent fall in the currency can be seen as reducing its effective wealth by 3 per cent, or about 19 per cent of one year’s worth of national income.

The currency market is also an early-warning system for worse to come. When forex traders hold sterling in lower esteem — Mr Bloom refers to them as “FX vigilantes” — other investors may soon follow.

The Telegraph has this about Mrs May’s approach: “What Theresa May did and very carefully did not say about Brexit“.

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The Prime Minister at her Party Conference

Most interesting of all, however, were the clues she gave to her thinking on the crucial issue of our trade with the EU. Without openly giving away her negotiating stance, she was more careful than ever to insist that our Brexit agreement must continue “to involve free trade in goods and services” with the EU….But if she really means that Britain must continue to enjoy “free trade in goods and services” with the EU, this can only mean that, on leaving, we must in some way remain part of the wider European Economic Area (EEA), subject to the single market’s rules.  Anything else would be far too complicated to negotiate in the time available. And anything short of that – such as naively hoping to rely just on “WTO rules” – would result in precisely the disruption and chaos of which so many business interests, from the City of London to the owners of our largely foreign-owned motor industry, have been so firmly warning.”

But the Telegraph also has this: “Cabinet split over handling of Brexit”  – essentially reporting on a split between the Chancellor and the trio of Brexit Ministers.

Mr Hammond, who helped lead the Remain campaign as foreign secretary before moving to the Treasury, is seen as one of the most pro-EU voices around the cabinet table….Recent comments suggest he sees keeping access of the single market as just as important as ending the free movement of people. Yet the so-called Three Brexiteers – Boris Johnson, David Davis and Liam Fox – and other cabinet ministers who voted to leave the EU have put greater emphasis on immigration controls.  This week it was claimed that differences between Mr Hammond and Mr Fox, the International Trade Secretary, over whether to stay in the customs unions were insurmountable.

Not good news

The Conference Brexit Vision

More on Teresa May’s Conference Speech

may6The Prime Minister’s closing speech to the Tory Conference was most encouraging insofar as it affirmed her commitment to “One Nation Conservatism” and to “Christian Democracy”. But her speech should not be analysed in purely political terms.  Paul Mason wrote on the Conservative Home blog describing the speech as “The Prime Minister’s Class Act”.

While the wording of the headline is questionable, Mr  Mason rightly identifies the Prime Minister’s motivation as coming from her upbringing:

Why, then, does Theresa May stand a chance of making the claim stand?  After all, she is solidly middle class herself. Perhaps it has something to do with being a Vicar’s daughter.  The clergy are by and large middle class, but are the only occupational group in that class to live among poorer people in large numbers.  The Anglo-Catholic tradition in which the Prime Minister was raised had a preferential option for the poor long before the phrase was invented.”

Absolutely right.  See this booklet published by the Unite Trade Union “The Great Dock Strike of 1889” which  sets out in excruciating detail the terrible consequences of unbridled “laissez faire” capitalism and the impetus it gave to the Trade Union movement.  The clergy of dockland parishes  (both Anglican and Catholic) were very conscious of the iniquitous treatment of their parishioners.

But go to pages 37-38 of the Unite booklet and read about the part played by the then Roman Catholic Archbishop of Westminster, in the settlement of the dock strike in 1889. Cardinal Manning was an Anglican clergyman in the 1880’s and was not received into the Roman Catholic Church until 1851.  His experiences in 1889 led to the promulgation of the Leo XIII encyclical “Rerum novarum”  and to the development of  Christian Democracy.

Christian Democracy is very much a European political ethos:  see the long list of European Christian Democrats at the foot of the Wikipedia page. Unsurprisingly, what is now the European Union was largely built by politicians  who were Christian Democrats and Christian Democratic MEPs are to this day the majority in the European Parliament and that ethos makes equal treatment of EU citizens throughout the territory of the Union a fundamental EU doctrine.

This report in the Times “Merkel leads European backlash over May’s Brexit demands” was therefore to be expected.   It is worth reading the reader comments on this article – in particular this by Martin Bell:-

Apart from the minor fact that Sterling has lost more than 20% of its value since the referendum result and food, motor fuel and household energy prices will rise to reflect it and any further decline, Brexit is going absolutely nowhere right now. May doesn’t command a majority for it in the House of Commons, she doesn’t even have one amongst her own MPs, and Parliament won’t approve an Article 50 Notice being served on the EU. The Government’s attempt to use the Royal Prerogative to bypass Parliament is being blocked in the High Court and will probably slowly crawl its way up to the Supreme Court. Until the case is decided Brexit is in limbo but ‘Brexit’ price rises will be continually hurting voters pockets and quite soon. Opinion poll surveys in coming months of public attitudes to Brexit should be quite interesting given that the referendum result was marginal. The public are hopelessly divided over Brexit, and fickle. ‘Come with me! – to petrol at £1.50 a litre. No chance. By Christmas Brexit will be a chaotic Tory turkey that isn’t worth the pain. Have they forgotten ‘it’s the economy, stupid’.

It is worth making one point about the reference in the comment above to the pending judicial review proceedings.

The Judicial Review proceedings are due to be heard in the Divisional Court very shortly.   The Court has made arrangements for a possible “leapfrog” appeal to the Supreme Court thus bypassing the Court of Appeal.  Therefore, the case is not going to “crawl slowly” but will probably be entirely disposed of by the end of the year.

Discrimination against EU Nationals

The new Home Secretary, Amber Rudd, also spoke at the Conference.  The full text of her speech has been published by the Spectator: “Full text: Amber Rudd’s conference speech“.

To make matters worse, the Times also published this: “Firms must list foreign workers“.

The use of the word “list” in the headline is perhaps very unfortunate.  The immediate gur reaction in Europe might well be to think that the next step will be that of requiring EU nationals to wear some kind of distinctive badge (a yellow star perhaps).

This Guardian article covers the reaction from business: “Amber Rudd faces backlash from businesses over foreign workers“.  The FT has a similar story: “World leaders dismayed at UK plans to curb foreign workers – Amber Rudd’s ‘nudge’ to employers portrayed as expression of xenophobia“.

See also this in the Mirror: “Shameless Tory Amber Rudd slammed by her own BROTHER for ‘appalling’ attack on foreign workers“.    This article not only picked up on the Amber Rudd boob but also on a classic Boris Johnson own goal:-

Boris2
Clown Boris now the Foreign Secretary

“Ministers sparked further outcry today as it emerged the Foreign Office have banned non-British experts from advising it on Brexit . In an extraordinary move, Boris Johnson’s department emailed the London School of Economics(LSE) to say that foreign nationals should not contribute to a series of advice papers the LSE was preparing for the government. One of the nine experts affected, Sara Hagemann, an assistant professor in the university’s European Institute and one of Britain’s top experts on EU negotiations.She wrote on Twitter: “UK govt previously sought work & advice from best experts. Just told I & many colleagues no longer qualify as not UK citizens.” The decision sparked shock and revulsion among academics and politicians alike. Senior lawyers questioned if it was even legal under Britain’s equality laws.”

This recalls what the Independent had to say at the beginning of the month: “Brexit is being handled by ‘three blind mice’ who are staggeringly naive, says former Tory minister“.

3-blind-mice
The Three Brexit Blind Mice

In fact, the full text of what Nick Herbert had to say was set out in more detail in this Guardian article:”Hard Brexit ideologues threaten the UK’s economic future“.

It may well be the case that at some stage very soon, someone will have to start cutting off some tails.