Many thanks to Liam Moore for this.
An interesting and cautious summation of the legal inefficiency of the European Union (Notification of Withdrawal) Act 2017 and its implications.
I always assume three things about the Tories:
1. They are only out for themselves and see the needs of the people of Britain as inconsequential.
2. They are not stupid but are happy to appear so in the achievement of their goals.
3. They have a long term plan to place themselves and their backers (permanently) in the position of greatest financial and political advantage.
Any action and statement they make must be examined in the light of the above…
“On whether and why the Article 50 Bill is flawed
On the day the Government published its Article 50 Bill I wrote this piece setting out what seemed to be a technical flaw in the Bill.
In the following sub-paragraphs, I set the argument in its broader context. But in reading that context it will be helpful if you bear in mind the structure of Article 50, paragraph 1 of which requires a decision to withdraw in accordance with our constitutional requirements; and paragraph 2 of which requires notification of that decision:
(1) what the Bill – now of course an Act – does do is authorise the Prime Minister to notify the EU that we intend to leave the EU;
(2) what it does not do is make a decision that we should leave the EU;
(3) you search for such a decision in vain. Even if you extend your search beyond the Act. Despite what David Davis asserted in debates in Parliament, the Supreme Court was very clear that the Referendum was not legally a decision to withdraw. In private correspondence, the Brexit Secretary has pointed to facets of the broader political context but he has not pointed to any decision;
(4) the reason the Referendum was not a decision to withdraw is because, in enacting it, Parliament chose to make it advisory;
(5) the Supreme Court judgments do not demonstrate a laser-like focus on whether they are addressing the Article 50.1 limb (the decision to withdraw) or the Article 50.2 limb (the notification of that decision). The (likely) reason for this is that the Claimants decided – and eventually the Government agreed – that for the purposes of the point before the Supreme Court the difference between the two was only formal;
(6) however, the structure of Article 50 is quite clear: it is only the decision that need be made in accordance with our constitutional requirements. There are no formalities governing the notice itself – it could be made via a tweet; and
(7) remember point (6) and the Supreme Court judgments are brought into some focus. In addressing, as they do, what our constitution requires they must (primarily) be concerned with the decision rather than its notification.
This sequence of reasoning has animated a number of campaigners. Might it have as a consequence that, legally speaking, the Article 50 clock has yet to start because we have yet to decide to leave. And that what was notified to Donald Tusk was a nothing? So that Parliament would have now to choose whether we want to leave the EU?
I’ve sat apart from those discussions for various reasons. One of them was that I hadn’t understood why the Government did things in this way? Why did it not enact a decision? Why no section 1(1) of the European Union (Notification of Withdrawal) Act 2017 saying: “The United Kingdom intends to withdraw from the European Union”?
It is inconceivable to me that this omission was accidental. The short Act is drafted with some care. By way of simple illustration I spent some time with a leading Constitutional Law QC examining whether it was effective to notify a decision to withdraw the United Kingdom from Euratom before concluding that, despite initial appearances, it was.
But here’s a speculation and one – I think – that has the ring of truth.
If you were determined to leave the EU you would not want the decision to do so to be sourced in an Act of Parliament. After all, a thing that is done by MPs can be undone by MPs. But source that decision in the Referendum, source it in ‘the will of the people’, and it cannot be undone otherwise than by the people whose future will you could then choose to mute. And the fact that, legally, in the Referendum the people had not decided to leave but simply to advise Parliament, well, that would be a nuance too far for Parliament. It would lack the will or the courage or the perspicacity to seek to amend the Bill to introduce a decision to leave.
It takes no great effort for me to imagine a conversation between David Davis and James Eadie QC (First Treasury Counsel and the Government’s key legal advisor). Davis says that for his own reasons he wants the Act not to make the decision to leave the EU. Eadie responds by observing that to do so would leave the Act with a technical flaw. Davis says that, surely, no judge would dare declare the withdrawal notification a nullity. Surely?
And what does Eadie respond? Well, someone will have to go to court to find out.”
In the first of two new films, as the Conservative conference promises ‘the best Brexit for Britain’, John Harris and John Domokos talk to Tory true believers and pro-EU protesters, before heading out on the road to find the reality beyond the political noise. They meet hard-working Europeans worried about their future in the UK, businesses that fear the worst, and angry voters who still passionately believe that Brexit must happen
“All of which underlines a thought that has been pulling at me ever since the election started. May has continually tried to pitch this as a question of who you would wish to act as the negotiator of Brexit, either her or Jeremy Corbyn. But why would anybody believe that a woman who is not even capable to debate with her opponents would be a good negotiator?
In fact she would be an appalling negotiator. She becomes completely closed off when contradicted. She is incapable of thinking on her feet. She is undoubtedly the worst performer at Prime Minister’s Questions, either for government or opposition, since they were first broadcast. Why on earth would anybody think she would be a good negotiator? As soon as Michel Barnier made a point she was not expecting across the table, she would switch off and revert to cliché, and probably give off a great deal of hostility too.
The delusion she would negotiate well has been fed by the media employing all kinds of completely inappropriate metaphors for the Brexit negotiations. From metaphors of waging war to metaphors of playing poker, they all characterise the process as binary and aggressive.
In fact – and I speak as somebody who has undertaken very serious international negotiations, including of the UK maritime boundaries and as the Head of UK Delegation to the Sierra Leone Peace Talks – intenational negotiation is the opposite. It is a cooperative process and not a confrontational process. Almost all negotiations cover a range of points, and they work on the basis of you give a bit there, and I give a bit here. Each side has its bottom lines, subjects on which it cannot move at all or move but to a limited degree. Sometimes on a single subject two “bottom lines” can be in direct conflict. Across the whole range of thousands of subjects, you are trying to find a solution all can live with.
So empathy with your opposite number is a key requirement in a skilled negotiator, and everything I have ever seen about Theresa May marks her out as perhaps having less emotional intelligence than anybody I have ever observed. Bonhommie is also important. Genuine friendship can be a vital factor in reaching agreement, and it can happen in unexpected ways. But May has never been able to strike up friendships outside of a social circle limited to a very particular segment of English society, excluding the vast majority of the English, let alone Scots and heaven forfend continentals. The best negotiators have affability, or at least the ability to switch it on. It is a vital tool.
That is not to say occasionally you do not have to speak and stare hard to make plain that one of your bottom lines is real. But that is by no means the norm. And you need the intelligence and sharpness to carry it off, which May does not. That is one of the many differences between May and Thatcher.
Frankly, if I had the choice between sending in Jeremy Corbyn, with his politeness and reasonableness, or Theresa May, into a negotiation I would not hesitate for a second in choosing Corbyn. I am quite sure there is not another diplomat in the World who would make a different choice. May’s flakiness and intolerance of disagreement represent a disaster waiting to happen.”
Farming & Brexit
Britain’s decision to leave the EU poses challenges for many sectors of the economy, none so much as the country’s farmers and our Peak District farmers will be amongst those most challenged. Farmers are essential for looking after the special qualities of the National Park for the present and for the future. As well as employing 12% of the working population of the Peak District, farming is crucial in shaping and maintaining the landscapes we love.
Last year CAP payments to the UK totalled about £3bn, making up 55 per cent of farmers’ incomes across the country but here in the Peak District it’s up to 90% of farm related income for hill farmers. Some believe the CAP has been hugely distortive because farmers are granted funds according to how much land they own. This has two impacts. British farming businesses may have been unwilling to innovate, leaving agricultural productivity in the UK lagging and many of our richest land owners receive huge subsidies from the EU. (69 per cent of the land is owned by 0.6 per cent of the population)
We may condemn the Common Agricultural Policy (CAP) but our Peak District hill farmers rely on generous subsidies and grants. Farming in the Peak District is not the easiest of occupations. This is a land of small hill farms, there are more than 1000 agricultural holdings within the National Park. Currently 82% of the Park is classified as farmland. The majority of land is severely disadvantaged being mainly grade 4 or 5 which indicates that it is the poorest agricultural land: mostly permanent grass or rough grazing. Many farms are less than 100 acres, which struggle to support families, and in recent years have been encouraged to diversify to avoid self-destruction or bankruptcy. The whole area is reliant on EU agricultural subsidies and environmental payments to maintain economic viability.
Most developed countries, whether inside the EU or not, maintain public funding for farming communities. The Treasury is planning to replace any shortfall in EU funding to farmers that might arise between now and the end of the decade. However, Mr Hammond is providing no more than a short term stopgap. Farmers here and across the country remain highly uncertain about their prospects after 2020. Without subsidies, almost all hill-farming will cease. Some farms may be abandoned and it will just go wild, Rewilding will be welcomed by some but here at Hope for Europe we don’t see it as a solution to protecting our environment in the Peak District.
Our hill farms get up to 90% of farm related income their income from EU subsidies and they are part of the sheep meat industry that exports 40 per cent of its produce to Europe. If the government cuts subsidies or if farmers cannot export to Europe, can an alternative business model be developed or do they face ruin?
This is an amazing resignation letter
Please take this email as notice of my resignation from the ACP and the Conservative Party.
I was recently advised that the three qualities required for a prospective Tory peer were experience, hard work and loyalty.
A year ago loyalty meant commitment to remaining in the EU. Now it apparently means commitment to leaving the EU Customs Union. I cannot be loyal to this unmandated and suicidal policy.
I remain convinced that a hard Brexit is the greatest mistake this country can ever make, and one which will haunt us for generations to come. We have spent over 40 years building a common market with our EU partners and although the work is far from complete, it has resulted in remarkable economic and political success for the UK and Europe as whole, acting as a magnet first for southern nations such as Spain, Portugal and Greece to transition from dictatorship to democracy, then for the newly liberated countries of eastern Europe to join the club, all of them with strong British encouragement. The large EU country which has benefited most of all is arguably the UK. Our free trade traditions, English language, natural borders and retention of our own currency have given us all the benefits and few of the costs of membership. Notably we have largely escaped the effects from mass immigration from North Africa which are so afflicting southern Europe at present. It makes our present obsession with immigration look petty and selfish, against a backdrop of real misery and crisis in the Middle East and Africa and along its EU borders.
Economically we have benefited from becoming the international gateway for foreign investment into Europe. Margaret Thatcher made huge efforts to attract the likes of Honda and Nissan to the UK, turning us over 30 years from the sick man of Europe into one of its leading car exporters. Bankers may not be popular, but the City of London has created great wealth for the south east, and it also contributes at least 11% of the country’s tax income and enables the UK to run a current account deficit and public services it would not otherwise be able to afford.
I acknowledge the result of last year’s referendum but I fundamentally disagree that a 52% protest vote, a vote denied to EU nationals living in the UK, gives the government a mandate to do anything more than to negotiate exit terms with the EU and then report back to Parliament and the country as a whole for a further vote once it becomes clear what Brexit really means.
What will it mean? It is delusional to think that the EU under its reinvigorated Macron-Merkel Franco-German leadership will do anything other than defend the EU’s own interests, foremost of which is a demonstration that leaving the EU is a costly and disastrous mistake. Juncker was right: the EU will act to ensure that the UK is punished. And they’ll gladly pick up our financial services industry and our other exporting industries rendered uneconomic by the risk of future tariffs. There is simply no way that any possible deal with the EU will be better than the one we have just torn up.
The results of hard Brexit or no deal (the most probable outcome considering it took the EU and Canada 8 years to agree a marriage, let alone a divorce and then a new relationship) once the Article 50 two years have expired will include inflation, a rise in the cost of living, collapse of foreign investment, significant job losses not only in the City but across the country, a loss of international influence, and quite likely the secession of Scotland (if the English can ’have their country back’ why should they not too?) and Northern Ireland, which will not be happy about the reimposition of customs and immigration controls along its border with the Republic, which will have better living standards to boot.
The United Kingdom will no longer be united. Great Britain will no longer be great. Little Englanders will have got what they wanted: little england. I predict considerable public anger, especially amongst the young who voted overwhelmingly to remain and whose futures are being so casually squandered.
And what will this new England be like? Our negotiating power will be feeble. A free trade agreement with China which still has political prisoners and slave labour will flood us with cheap imports and do nothing for protection of UK jobs and standards. A free trade agreement with a protectionist USA will flood us with subsidised food products that would also not meet current UK or EU standards. We shall likely see 30 mile queues towards the Channel Ports as the French reimpose customs inspections in Calais. Apart from fishermen (the only Brexiteers whose views I respect) noone will be better off.
If you have bothered to read this far I thank you humbly for your patience and urge you to use your position within a party that looks set to gain a substantial Commons majority to back the voice of common sense and reason, no matter what the pressure from the Whips. Unless there is a crisis resulting in a new general election it seems that the focus of debate will move to within the Tory party.
As for me I am joining the Lib Dems in the hope that a grand coalition of the sensible, moderate, non Europhobic and non suicidal public might be created out of the hitherto silent ranks of sensible Tories and sensible Labour supporters who are neither hard Brexiteers nor Corbynistas. We may yet see the creation of a new centre party. For now the Brexit tail is wagging the Tory dog, and I am bowing out.
Now that the local elections are over and party manifestos will start to come out, the focus shifts to shaping the 8th June election outcome. It is not a normal election, but a referendum on Theresa May and her determination to pursue a super-hard Brexit.
May is asking us for a blank cheque for her to negotiate for Britain to leave the European Union at any cost. She seems obsessed by the idea of pursuing a super-hard Brexit so that she can continue to crow that “Brexit means Brexit”, regardless of the damage that her brand will inflict on our economy, our livelihoods and our international standing. She is asking us to give her a licence for drive recklessly at top speed up a dead-end road.
The conclusion of this election will shape Britain’s future, not for 5 years but for generations to come.
The progressive opposition parties can only defeat May and her the Conservative party if they make this their sole objective and work together to achieve it. It is worth it, because if each party goes it alone, this will simply strengthen May’s hand and weaken each of the opposition parties still further. The tactical voting arrangements already under consideration, while a step in the right direction, will not oust the incumbent government.
This conclusion has been amply confirmed by the results of the local elections. The message is that business as usual is a non-starter, a recipe for the eclipse of any meaningful opposition.
It means a pre-election agreement to create a coalition government committed, in very simple terms, to a fairer and more prosperous Britain and to a positive rather than confrontational future relationship with Europe whether from within or outside the EU.
In practical terms, it means quickly creating a Progressive Parties Pact to fight the election and to promoting local Pacts in each constituency. It requires that each party’s candidates contest the election but without wasting their energies in fighting against each: 7 to 10 days ahead of the election date, a single PPP candidate would be identified locally (either by consensus or by drawing lots) to challenge the Conservatives in each constituency, and the others would withdraw.
Successful candidates would give priority to representing their constituents’ expressed priorities, once in the House of Commons, including those on future relations with Europe, regardless of their party. A consensual view on the full range of government priorities would emerge within six months of the government’s election – a reasonable time-frame after a snap election decision by the incumbent majority.
While a PPP management team would have to be put in place with the full backing of all concerned party leaders for the election period, more permanent governance arrangements for the Pact would be put in place only after the election. In the event of victory, these would include a process for selecting a future Prime Minister.
There is already much common ground between the Progressive Parties on domestic economic, social and environmental policies, with a strong emphasis on fairness. There is also a consensus on the need to reassert Parliament’s oversight of the executive branch of government. There is a wish to recreate an atmosphere of tolerance and mutual respect that has been a hall-mark of British values. There is a need to assure young people that their aspirations are given due weight in key decisions on Britain’s future. And it is vital that the devolved governments also have their proper say in determining what is best for them.
On Europe, it should be possible to arrive at a consensus vote-winning platform along the following lines:
- Confirm to EU that Article 50 invocation still stands but call for a pre-negotiation dialogue on options for addressing key issues of special concern for Britain (see below):
- Immediate unilateral recognition of EU residents’ rights in UK;
- Immediate request to EU countries to recognise rights of UK citizens in Europe;
- Immediate agreement to welcome qualified overseas students in British schools and universities, outside of any possible future constraints on immigration;
- Commitment, prior to moving into detailed Brexit negotiations under Article 50, to explore with EU the options for UK remaining in the Single Market while taking measures to trim EU immigration when this over-stresses absorption capacities, and addressing other British expectations emerging from the election process.
The main focus of the short campaign should not be on policies (except on where there is already a clear inter-party consensus) but on discrediting the personal capacity of May and leading right-wing Tories (and their UKIP allies) to lead the country safely forward.
May is highly vulnerable because she has nothing to show for her ten months in office. All the evidence demonstrates that, though portrayed incessantly as “strong and stable” by her PR team, she is, in reality, a “weak and fickle” opportunist with authoritarian tendencies, driven by personal ambition and obsessions rather than any principles.
Theresa May is a weak Prime Minister:
A strong PM would have tried to pull the country together after the divisive referendum vote, adopting a moderate stand rather than aiding and abetting the extremists in her own party who are now engaging in tactical voting with UKIP, and doing nothing to counter the general hardening of attitudes towards foreigners and minorities in Britain.
A strong PM would have explored ways for UK to stay in the Single Market rather than choose to exit even before negotiations start.
A strong PM would listen to – rather than dismiss – the many groups who see themselves negatively affected by her policies: By dismissing the concerns of the Scots, she risks breaking up our United Kingdom and she doesn’t seem to care. Her failure to listen to Irish and Northern Irish leaders over the border issue reopens prospects of violence. Her fixation over opting out of the Single Market (driven, it seems, mainly by her personal grudges against the European Court of Justice) puts thousands of jobs and businesses – as well as our overall economy and fiscal stability – at risk. Already, major players in the financial sector are moving out of Britain, taking jobs with them.
A strong PM would be able by now to point to some positive achievements during her time in office. Instead, she has no results to show: she has spent much of her energy trying to undermine the authority of Parliament, not yet developed a feasible Brexit strategy, and done absolutely nothing to address the urgent problems facing the NHS, the education system and marginalised communities.
Mrs. May is a fickle opportunist who acts on impulse and grudges rather than conviction:
She backed “remain” in the referendum, expressing strong personal support for the Single Market, and then, as soon as the chance arose to become PM, did a complete U-turn, turning her back on the advice that she herself had given to voters: she was a traitor to her own declared beliefs and never said sorry to anyone.
She stated that she would not call a snap election, and then did a sudden U-turn also on this, after a week-end walking with her husband.
She calls for Britain to reclaim sovereignty, and then does her best to exclude Parliament – the institutional locus of British sovereignty – from playing its due constitutional role in the most important policy decision of recent years.
She exhibits autocratic tendencies, not only in this disdain for parliament, but also in relation to human rights and the rule of law. Like many insecure people in high places, she is intolerant of dissent even amongst her fellow-travellers.
Before she has even started to negotiate with the EU, she needlessly ruffled the feathers of her opposite numbers.
Beyond all of this, Mrs May must be targeted for:
Continuing to reiterate her statement that “No deal is better than a bad deal”. The united opposition should challenge this with a claim that “Remain is better than a bad deal!”.
Interpreting “the will of the people” as widespread support for a self-harming super-hard Brexit.
Failing to acknowledge that she has run around the world hunting for new trade deals and has drawn a blank, except for selling more arms to dictators.
Allowing her personal gripes to call for Britain to leave the jurisdiction of European Court of Justice and – eventually – the European Court for Human Rights, run by the Council for Europe.
Failing to do anything to temper the wave of hate crimes against foreigners and religious minorities in Britain.
Failing to confirm the rights of EU national residents in Britain ahead of negotiations on a new agreement.
Muzzling her MPs to prevent them from representing their constituents in the decision to invoke article 50.
Happy to call an election but unwilling to defend her policies in a television debate.
– And so on……
The verdict is that Theresa May is not fit to be entrusted with setting the course of British history for coming generations.
She must, at all costs, be sent packing from Downing Street on 8th June. And the only way to be sure that this will happen is for the progressive parties to combine forces for the next 4 weeks.
By combining forces, the progressive opposition parties could put forward an outstanding group of candidates to successfully challenge May and all her friends.
Thanks to the futureforourchildren for this.
Myth no 8
The European Parliament wants the creation of an EU army, to be paid for by the British taxpayer.
The true story is that MEPs voted on a non-binding resolution on the “Defence” part of the Common Security and Defence Policy agreed ages ago by all member states (including the UK) in the Lisbon Treaty.
The resolution stressed that Nato must continue to be the backbone of collective defence in Europe and that any Defence Union must be agreed to by all EU countries.
So, this is about pooling resources and joint defence procurement, rather than about setting up a European army. And something that doesn’t exist, doesn’t need to be paid for, not by UK taxpayers.
Myth no 9
“The EU accounts have never been signed off”
Not true. There is a persistent myth (reliably recycled every year by UK newspapers) that the European Court of Auditors has refused to sign off the EU’s accounts, but this is entirely false.
According to the European Court of Auditors, around 0.2% of the EU budget may have been subject to fraud. Any amount of possible fraud is unacceptable and needs challenging. But it’s worth noting that the figure of 0.2% is much lower than most national budgets
Myth no 10
Britain has too many immigrants
If you’ve read this far you probably know that we need immigrants. Here’s some forecasts from consultancy firm Mercer
“Businesses face an unprecedented labour shortage. The impact of the UK’s ageing population on the UK economy and access to labour has been masked in recent years by positive net migration – until now”
Some future scenarios for the British labour market.
1 he economy and migration progress as expected in the years leading up to 2030:
“No change to the government’s expectation that migration drops from the current 335,000 per year to 185,000 by 2020 and thereafter. In this scenario, the total population increases 5.5 million from 65.7 million in 2016 to 71.2 in 2030 with the workforce increasing by 1.7 million from 33.4 million to 35.1 million over the same period. While the least dramatic scenario, it’s worth noting that there are already skill shortages in many industries.”
“The workforce increases by 1 million workers from 33.4 million in 2016 to 34.4 million in 2030. The overall population increases by 4.5 million from 65.7 million to 70.2 million meaning that fewer workers are supporting a larger population with related pressures placed on pensions and healthcare funding and compounding current skills shortages and demographic pressures.”
3 EU Remigration”
“This scenario envisages an outflow of EU-born and Non-EU born workers caused by an unwelcome social environment in the UK. This is combined with a net outflow of UK-born workers too (a group, which according to the Bank of England, historically have left the UK in higher numbers than return since records began in 1964). The UK’s working population shrinks by 700,000 to 32.6 million while the overall population increases by 2.3 million from 65.7 million to 70.2 million. The inability of certain sectors of the UK economy to fill roles could be dramatic.”
Quitting the EU will lead to less control, not more.
We were one of Europe’s leaders. We, along with other key players instigated the single market, and drew up the rules. We were a central player in Europe’s fight against Islamic terrorism. We helped secure the climate change deal in Paris.
Today and henceforth we are on the side lines. Putin is still in the Kremlin, Trump is still in the White House, North Africa and the Middle East are still unstable and China continues to grow its economy.
How can we believe we have more control on our own to face this unstable and dangerous world? Why are we antagonising 27 like-minded nations instead of making common cause with them? How can we influence them when we have walked away?
In order to survive as a trading nation we will have to abide by global trade rules. We won’t be making the rules any more. How is that improving our global situation?
Not only this but twenty seven commonwealth countries have free trade with us through the EU. When we leave initially we will revert back to WTO costing them an extra £800m a year in Tariffs, yes we might negotiate new deals, or they might just deal with the EU or China.
When we trade with Europe, Brussels will write the rules; when we trade with America, Washington will write the rules; when we trade with China……. need I say more.
Is that taking back control?
If you are opposed to leaving the EU or Teresa May’s approach to a hard Brexit down load this letter and mail it to Donald Tusk to coincide with Teresa’s letter. Remember to add your own address.
Remember to check back here at Hope for Europe for our campaign to oppose a destructive exit from Europe.