Is a Brexit deal on offer? I think it might be.

It’s been widely reported in the press that Boris Johnston has been given 30 days to come back with a solution to the Irish backstop.  This morning I was in a fascinating session, led by Mark Diffley and Steve Richards, which assumed that this was the case. I think Angela Merkel was saying something significantly different – but if the offer is not understood and acted on right away, the opportunity may be lost.

The Withdrawal Agreement is, and has always been, incomplete. It represents only the first stage of a negotiated settlement.  The backstop is an insurance policy – a red line, if you will – to cover the eventuality that there is no agreement on the second stage.  That raises the obvious  the question – why not get on with the second stage?

And that, as far as I can make it out, is the position just put by Ms Merkel.  She is well known for being careful with her words.  What she said in the recent press conference was not that she is looking for an alternative to the backstop, but that she is open to a resolution on the future relationship that would mean that the backstop will never come into effect.  This is the summary from the Guardian:

She said that the backstop had always been a “fallback position” and would only come into effect if no other solution could be agreed that would protect the “integrity of the single market”. She went on:

“If one is able to solve this conundrum, if one finds this solution, we said we would probably find it in the next two years to come but we can also maybe find it in the next 30 days to come. Then we are one step further in the right direction and we have to obviously put our all into this.”

She is not saying that Boris Johnson must offer an alternative to the backstop – if that was what she meant, she could have said so.  She is saying that the backstop is there because no other resolution has been made about the future relationship.  That is the solution which would have to be arrived at before Britain leaves.

There are three obvious problems here.  First, this is not a line agreed with the rest of the EU; it is in particular somewhat different from the line being taken by President Macron, who if I read the runes rightly just wants it all to end. Second, there is a lot to do.  But third, if the British government continues to play with alternatives to the backstop, this is not going to happen; what they need is a comprehensive agreement that will make the backstop redundant.  That could be done at speed – but for as long as the attention of the government is elsewhere, the time is being frittered away.

My own private Brexit

I have received today le Certificat de nationalité française, confirming that  I am a French citizen. I have no intention of renouncing my rights as a British citizen, but I have no intention of surrendering my rights as a European citizen either; and I do not think it reasonable to require any person to give up  the rights of citizenship, or democratic to suppose that their rights can be extinguished by the will of a majority.  My father and grandparents were refugees from France, my first wife was French and my children are dual nationals, but as we were all members of the European Union it didn’t seem important for me to do anything about my own status.  In November 2016, I realised I would have to. I obtained the necessary documents, arranged for formal translation of English documents and completed an application for the  in January 2017.  The process has taken most of three years, and I still don’t have the carte d’identité or a passport, but the question of legal status has been sorted.

I’m far from alone in taking such a step:  hundreds of thousands of British citizens have applied for citizenship from various EU countries, many from Ireland or Germany. It will protect my rights to live, work and travel in the EU – I’m more likely to work in Poland than I am in France – but the issues go much deeper than that.  I wrote this in March 2017:

There have been demonstrations over the weekend.  They’re not about tariffs. They’re about movement, contact, travel, education, work and family life.  The loss of European citizenship means that you won’t have the right to live or work across Europe without a permit, to study where you will, or to marry a European with the assurance that you’ll be able to live together.  And that directly and immediately affects the lives of millions of people – not just the 4 million already identified by Michel Barnier (that is, EU citizens in the UK and UK citizens in the EU), but anyone in a mixed family, and anyone who might be. People like me; quite possibly, people like you.

Before the referendum, I tried to flag the issue when it wasn’t on the agenda; since the referendum, I’ve raised petitions on Change.org and in the European Parliament.  This is about the right to live in Europe.  We were told that right was fundamental, not just to what the European Union was all about, but to us; and for many of us, it is.

 

 

Postscript: This was my 1000th post on this blog.

 

Brexit: there is a way to an agreement, but no-one seems ready to take it.

I dislike repeating myself, which is why I haven’t had much to say recently, but there is a way out of the current impasse – if only the UK government and the EU will take it.  The backstop protecting Ireland appears to be the primary source of contention.  It is only needed because the UK and the EU have not yet formed any agreement about Britain’s future relationship with the EU.  Indeed, in more than two years, thanks to an absurd initial decision about the sequence of the negotiating process, they’ve not agreed a single binding clause about that relationship.  An agreement on the future relationship would finalise Britain’s departure, and then there would be no need for any provisional arrangement to cover the particular circumstances of Ireland in the interim.   Yes, trade deals are complicated; but substantial existing deals are there as models, many of the points already in the withdrawal agreement are uncontentious, and Britain currently meets the acquis communautaire.  It could be done, if people wanted it to be done.

Unfortunately, I see no evidence either that the new UK government is interested in engaging in any kind of negotiation on that basis, or that the EU understands that there is a way out of the mess that doesn’t involve brinkmanship or a game of ‘chicken’.  Everyone has packed up for the summer.  In those circumstances, Brexit will happen without a deal.

The public mood is swinging against Brexit

Views in the UK are polarised.  It is difficult to draw any clear message from the pattern of voting in the European elections, but the graph – prepared by the BBC, seems to mark a strong shift against Brexit.  You wouldn’t know it from the BBC’s Brexit coverage; I am listening now to a Radio Scotland item which is telling me that the Brexit Party romped home in the election.  Clearly, they didn’t.

The denial of votes to EU citizens on election day is another national disgrace; it will be the subject of legal action.  The assault on the rights of EU citizens goes rather beyond the 3.6 million people from the rest of Europe resident in the UK – or even them plus the 1.2 million UK residents in other European countries.  UK citizens are European citizens, too.  The formal census figures are out of date, as usual, but the population of the UK in 2017 was  roughly 66 million, and 90% are British nationals.  A further 5.6 million currently live abroad, of whom 1.2 million live in other EU countries.  We should perhaps discount 1.9 million people from Northern Ireland, because their rights are guaranteed if they so wish it by the Irish government, but that still leaves us with 57.7 million British nationals in the UK, and 5.6 million outside the UK, whose rights to European citizenship are being withdrawn.  In the 2016 referendum, 17.4 million people voted to leave the EU.  If we assume that all of them can be said to have consented to the loss of their rights, that still leaves 46.9 million other British citizens who are being denied their fundamental rights on the basis of that vote, and more than 50 million people when we consider European citizens from other countries living in Britain.

 

Six million people have signed the petition to revoke

The petition to revoke Article 50 has now passed six million signatures.   It is by some margin the largest petition in the UK’s history.  A petition is not proof that the ‘will of the people’ has changed, but it does prove that the ‘will of the people’ was not  represented by the result of the referendum; all that referendum could do was to represent the decision of a majority.

Majority rule is not democracy.  In what circumstances do the rights of 17.4 million voters override the rights of six million? Think about that question, because it comes with its own answer.

 

The clock has run down. Revocation is the best option left.

Time’s up.  Our MPs may be tempted to think that the two-week extension from the EU leaves it open to them to negotiate further about Britain’s future with the EU; it doesn’t.   There are only three options left.  One of them expires next Friday, another expires two weeks after that.

The three options that are available are

  • May’s deal – the Withdrawal Agreement negotiated with the EU, which the EU still hopes to be agreed;
  • no deal, which despite the MPs’ rejection in principle is the legal default, and
  • revocation of the article 50 notice.  The legal option to do this expires at the end of next Friday.  (The latest communique from the EU suggests that they would be open to revocation for two weeks after that – but they have not said either that revocation would be on the same terms as Britain’s existing membership, or that there will be no cost.)

The options that are no longer eligible available include

  • a second referendum, because there is no time to hold it;
  • Norway plus, Canada Plus, or any other trade-plus-cooperation type of deal – any of them will take months to negotiate;
  • Labour’s plan for a renegotiated settlement – no renegotiation is actually on offer, and we are out of time.

It’s time to get real.  Given that there are only three options, parliamentarians have to make a choice.  Two of those three options have already been rejected by the House of Commons.  Agreeing the Withdrawal Agreement is still possible, but it has been rejected twice by a huge majority, it is unbalanced, and it is incomplete: and it leaves unresolved  problems that will take years to negotiate.

The truth is that there is only one eligible option left: revocation.  Yesterday, I drew attention to a parliamentary petition which has put revocation back on the political agenda. It has, as they say, “gone viral”.  By this morning there were well over 2.5 million signatures on it, despite the site’s continual crashing and the lack of any pointers to it.   Andrew Adonis has said he will move revocation in the Lords on Monday.  It is our best, and possibly our only, hope.

Britain has lost sight of democracy, but it is the European Union that has abandoned its citizens.

We’re hearing a great deal from people who feel that someone or other is ‘betraying’ people about Brexit.  There are around 750,000 references on Google to the phrase ‘Brexit betrayal’, including extensive coverage in the right-wing press, and nearly all of them seem to come from one side of the argument – the same side whose preferences or ‘Will’ have been slavishly, and impractically, followed by the UK government.

I, too, feel a sense of betrayal.  It is a betrayal both by the UK government and by the European Union. The European Union made a solemn declaration that all citizens of the European Union had fundamental rights.  The UK, and every other member state, pledged to protect those rights; the primary mechanisms for that protection was to be the action of the member state.  Both parties have reneged on that commitment, and as part of the same process: they have treated the negotiation just as if it was about a member giving notice to a club, rather than secession from a union.

Article 50 may have been new, but there was a precedent for secession.  When Greenland left the European Union, its citizens were given individually the option of deciding whether or not they wanted to continue as European citizens.  Before the referendum, I had vaguely supposed that something of the kind would be arranged for citizens of the UK – it was only as the arguments developed that I could see it wasn’t going to happen, and tried to raise the issue.  Departing the EU stands to create devastating problems for families, for workers and for people resident abroad in either bloc.  That is why  hundreds of thousands of UK citizens have taken up citizenship of other EU countries to avoid the consequences.

It wasn’t supposed to happen this way.  Rights that are conditional on governments paying a membership subscription are not ‘fundamental’ rights.  But it has become clear that states, not citizens, are the units that the EU is made up of.  Despite the fine words and the formal declarations, the people who live in those states are not the EU’s citizenry. Brexit stands to strip every European – both those who are citizens of the United Kingdom, and those who are citizens of other member states – of the protections they were faithfully promised.  There is a clear message in the negotiations, one that goes to every citizen of every member state:  the only citizenship you have that matters is the citizenship of your home country. European citizenship has been degraded to the status of a junk bond: a promise that will never be kept.

Throughout the process, too, both the EU and the UK have treated the negotiations as if they were a matter of international relations, a negotiation between the British Government and the Commission.  That is why the EU made no direct appeal to its British citizens during the referendum, and did nothing to safeguard their interests.

Compounding the problems, the process followed in the UK has been profoundly undemocratic. Democracy is not the rule of the majority. Majority voting is only a convention for resolving disputes. The referendum itself had some claim to democratic legitimacy, even if this was questionable; it excluded millions of people directly affected by the decision, including Britons living in the EU and citizens from other EU countries living in Britain.  But voting is not everything.   One of the tests is that people should have been engaged in a discursive deliberation; that has not happened, because the government was determined to keep its stance a secret (ostensibly, in case the people they were negotiating with found out about it; more probably because they didn’t know what their stance was).   More basically, democracy is supposed to be  a system that defends the rights of minorities.  That is something that this process has signally failed to do.

Additional note:  A petition to parliament to revoke Article 50 has picked up nearly 900,000 signatures in less than a day – 10,000 of them just while I was adding this note.   Find it here.

 

How to bring the Brexit negotiations to a conclusion

There are several possible conclusions of the Brexit negotiations.  This could all could finish with no deal, or with acceptance of the deal that Parliament has already objected to.  A second referendum might even finish with the UK deciding to stay in the EU, but that is unlikely.

The fundamental problem with the existing offer is a simple one:  it is incomplete.  Article 50 made provision for both a withdrawal agreement and an agreement about the future relationship.  The second part is missing.  There is a “political declaration”, but there isn’t a legally binding agreement about the future.  And that’s why the withdrawal agreement had to come with a ‘backstop’.  The backstop is only necessary because nothing has been firmly decided about the future.

We arrived at this situation through a combination of ill-considered procedural decisions.   The EU should not have insisted on postponing discussion of the future relationship until after the withdrawal agreement had been negotiated; that was inconsistent with its treaty obligations.  The UK government should not have consented to the timetable.  Nevertheless, that is what happened.  The way out of the dilemma now is to conclude the unfinished decisions about the future – in other words, negotiating the trade agreement that should have been on the table two years ago.

It might not be possible to make this agreement in the remaining time; that argues for an extension of the notice period.   But a final agreement would not require anyone to revisit the withdrawal agreement, it would have the advantage of saving face for both the EU and the UK government, and it would avoid a situation which none of the parties wants.

Brexit is set to deprive UK citizens of basic rights

I’ve repeatedly argued in this blog that trade with the EU is not the main issue: social rights are.  I wrote before the referendum that

If the UK leaves, UK citizens will lose their rights as European citizens. Those rights include rights to representation within the EU, the right to move and live freely throughout the EU, reciprocal rights to public services, and consular and diplomatic protection from other EU countries when outside Europe. There is something deeply flawed about a process that claims to be democratic but implies that a majority decision would deprive a minority of their rights.

Last March, the House of Commons passed this motion:

this House supports the maintenance of European Union citizenship rights for Welsh, Scottish, Northern Irish and English citizens, notes that the range of rights and protections afforded to individuals as European Union citizens are integral to a person’s European identity; further notes that many of those rights are closely linked to the UK’s membership of the Single Market; and calls on the UK Government to ensure that the UK’s membership of the Single Market and UK citizens’ right to European Union citizenship are retained in the event that the UK leaves the EU.

Yesterday, despite that, it emerged that if Britain leaves the EU without an agreement, reciprocal arrangements for  health insurance will be withdrawn from UK citizens living in other European countries.  None of the main protagonists in the Brexit debate is focusing on the things that really matter.

 

The Brexit agreement is not great, but it’s all we’re going to get.

The Brexit agreement is  largely a pragmatic document which tries to steady the ship, rather than a major breakthrough in any direction.  Fisheries, for example, are not resolved – they’re simply put into abeyance before the next round.  The whole document looks like a draft, with loads of white space around sections – when a Labour spokesman talked yesterday about it being 600 pages and ‘tightly spaced’, it was clear he’d not even looked at it, because he couldn’t have said that if he had.

Some elements in it are disappointing, but to my mind the sections which most prompt concern almost certainly reflect the negotiating position of the British Government.  I’d point in particular to

  • Article 15(1), which gives people a right of residence only after they’ve been in athe host country for five years.  That is an abdication of responsibility both by the EU (which guaranteed movement as a fundamental right) and the UK (which made the same guarantee to its own citizens).
  • Article 92(5) and Protocol IV.7, which bind the UK not to offer state aid to business; and
  • Protocols V.17 and 18, which void elements of contracts which have non-commercial justification, a principle used to negate local minimum wages and agreements with labour unions.

It’s also important to note what’s not there: protection for the rights of citizens who might reasonably expect to live and work abroad but have the misfortune to be domiciled in their home country  at the moment, cross-border families in the same situations, or derogations from EU law relating to internal management of the British economy.

These are not, I know, the issues that most excite our politicians.  I’m sure someone will notice that the protocol with Northern Ireland stresses the importance of  access to the UK for goods from the province (pp 304 and 313), but not vice-versa.  It’s possible that the whole agreement will founder on that.

The agreement could have been better.  It would have been better if the government had thought through its position at the start; if it had consulted with interest groups, rather than keeping negotiations secret; and if it had used EU law to hold the EU to its treaty obligations.  It probably would not, however, look a lot different from the document we have now.  Ultimately I expect Parliament to fold, but even if we were to go through another election, any commitment to implement the referendum decision as it stands will end up looking something like this.