Tagged: Brexit

A second referendum is not the way out of this mess

If there is a second referendum, there is no good reason to suppose that it will deliver the result that remainers hope for.  I’m basing that view not on opinion polls, but on some old-fashioned political science.  There is no such thing as ‘the will of the people’.  What there is, instead, is a mish-mash of different opinions.  Some people voted ‘leave’ because they were unhappy with the EU; some because they were opposed to immigration; some because they were against capitalism; some because they wanted to return to the 1950s; some because they wanted to give the government a kicking.  Some people voted remain because they like the EU; some because of self-interest; some to avoid disruption; some because of their judgment about the economy; and so on.  Lies or fear may have played a part, on either side, but that’s not decisive; nor is the fact that some people will feel empowered to vote leave, or that other people will strain themselves to get a different result this time.  The more complex an issue is, the more likely it becomes that people with different motivations and preferences will cancel each other out, and the closer the result moves to what you’d expect from a random distribution – a 50-50 split.

Once we start from that position, the result is statistically likely to be decided by a relatively small group of people with a strong, settled opinion, if there is no equivalent group on the other side to oppose them.  The source of this argument is L Penrose, The elementary statistics of majority voting, Journal of the Royal Statistical Society 1946.    Bartholomew and Bassett wrote, in Let’s look at the figures, that  “2,000 resolute voters in a population of just over one million can almost always get their way.”   (p 125)  And that’s what happened in 2016.   (There might well have been an equivalent group on the other side – Britons in Europe – but they were largely barred from taking part.)     It’s not the polls that count; it’s the mechanism by which the issue is to be decided.  And without very strong reasons to the contrary, we should expect the same mechanisms and the same process to produce the same result.

How May’s government messed things up

While it still seems likely to me that the withdrawal agreement will be ratified, in the absence of anything clearer, the current government bears a heavy responsibility for a botched negotiation.  Regardless of whether one supports the principle of leaving or staying, the government has made a series of unforced errors.  They include:

  • giving notice with no prior negotiation and no plan – they were warned against this by Ivan Rogers, the lead diplomat at the time;
  • agreeing to a timetable, in breach of the EU’s treaty obligations, which precluded adequate discussion of the future relationship;
  • going into the negotiation without any prepared documents, position papers or proposed legal texts;
  • refusing to discuss the issues with other parties or outside contributors – a process fundamental to building consensus;
  • the ‘red lines’, and the withdrawal from other agreements such as Euratom, which were not part of the brief from the referendum;
  • the abandonment of considerations of citizenship, which were treaty obligations on the EU rather than for the UK;
  • failure to engage the devolved governments in questions relating to devolution (the obvious way to avoid differentiating Northern Ireland from other assemblies within the United Kingdom); and
  • repeated attempts to prevent Parliament from debating the issues, to the point of being declared in contempt of parliament.

To make one such error is unfortunate; to make eight stretches some way beyond carelessness. This is, in sum, the least competent administration of my lifetime.

 

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.

Brexit should be stopped, but I’m not convinced that the way to do it is by a second referendum.

Brexit should be stopped.  We can debate what the duties of a government are, but I’m fairly sure that it doesn’t include a direction to drive the bus over the edge of a cliff.

However, I’m not convinced that the way to do this is by another referendum.  That would imply that if the referendum was to confirm the original decision, we should abide by the majority’s decision, and I do not accept that we should.

There were three obvious problems with the referendum in 2016, and all of those problems are still there.  The first problem was that several million people were directly and immediately barred from voting.   Those people included British citizens living in Europe, and European citizens living in Britain. There is no possible revision to the electorate which will not lead to one side or another crying ‘foul’.

The second problem was, as we now know, the combination of illegality and downright lies that characterised the campaign to Leave.  There is no reason to suppose that the next campaign would be any cleaner.

The third problem would be true of any referendum.  It is democratic to encourage people to express their views, and we have a convention that decisions are decided by majority rule.  However, it is not democratic for any majority, ever, to deny rights to minorities.  We should not tolerate a situation where half the population votes to extinguish the rights of the other half – and that, in effect, is what has happened.

When the government accepted the brief to negotiate exit from the European Union, their first responsibility – and the first responsibility of EU authorities on the other side – was to defend the fundamental rights of citizens.  Both sides have a clear, unequivocal, treaty-based legal obligation to safeguard individual rights.  Both sides have failed to do so.

The Supreme Court is considering the Continuity Bill

The Supreme Court has retired to consider their verdict about the Scottish Parliament’s Brexit Bill, which rejoices in the title of the “UK Withdrawal from the European Union (Legal Continuity) (Scotland) Bill”.   The Bill does its best to make it look as if it’s all really, really difficult.  The issues are said to be complicated. They’re not as complicated as they might seem at first.

The basic principle of devolution is straightforward.  All legal authority stems from a common source.  In many countries, that source would be the Constitution; in the UK, it’s Parliament (well, technically the “Crown in Parliament”, but it’s the same thing).  When Parliament is described as  “sovereign”, it doesn’t mean that Parliament holds all the power; it means that all legal authority flows from Parliament.  So whenever a lesser body exercises power – which might be, for example, a local authority, a government agency, a private prison or a devolved assembly – its authority has to be traceable back to the source.

What that means, for Scottish legislation, is that all legislation passed by the Scottish parliament has to pass a basic test: does the Scottish Parliament have the delegated authority to make that decision?  I raised this issue in relation to the powers of local government when Scotland introduced the Scottish Welfare Fund.  In England, local government was granted a power to promote welfare by the UK parliament.  In Scotland, the Scottish Parliament passed the same legislation in the same words – but it couldn’t mean the same thing, because the Scottish Parliament couldn’t grant powers it didn’t have.  That’s why the Scottish Government needed additional UK legislation before it could set up the Fund.

The same principle applies to any and all legislation passed by the Scottish Parliament.  The Scottish Parliament’s authority only extends to those areas where it has devolved authority, or ‘competence’.   If it were to pass any rule in general terms – like granting powers to promote welfare, requiring public authorities to offer interpretation in Gaelic or BSL, managing harbour traffic,  requiring licences for energy production or whatever – that rule could only be valid in so far as it related to the devolved powers of the Scottish Parliament, and invalid in so far as it related to anything else.  The Continuity Bill has been very careful to specify that this is the case, and that it only relates to matters of devolved competence: EU legislation is affected “if and to the extent that it makes provision that is (or would be, if it were contained in an Act of the Scottish Parliament) within the legislative competence of the Scottish Parliament.”

The legal principle at issue is so obvious and so fundamental that I’m ready to take a pop at predicting what the Supreme Court is going to say.  They’re going to say that Scotland has the power to make decisions when they have the power to make decisions, and that they don’t have the power to make decisions when they don’t.  Politically, this could be seen as a defeat or a victory on both sides, depending on what people were expecting.  But it’s not relevant that the UK government might prefer the Bill not to be considered yet; either the law is within the competence of the Scottish Parliament or it’s not.

The basic principle may not be complicated, but the Supreme Court’s judgment almost certainly will be.  They’ve established the dreadful practice of allowing each judge to issue a lengthy judgment that is different in tone, emphasis, content and specifics from each of the others, and then they pretend that they’ve reached a joint decision.  If you’re not confused  yet, you will be.

The Brexit White Paper is out

The Brexit White Paper is strong on aspirations but weak on the detail of how to achieve them.  The paper refers repeatedly to “cooperation” (226 times) and to “new” arrangements (153).  There’s a long shopping list of fields of activity which will require specific negotiation.   The main proposal for mechanisms is to create an institutional framework, a governing body, a joint committee, and then sub-branches dealing with the specifics such as fishing, security, data protection and so forth.

While it’s fine to propose cooperation, every one of the areas considered is going to need negotiation and agreement of terms.  In most cases, the document does not say what those terms should be, only that the issue has to be discussed.   For example,

 the Government’s vision is for an economic partnership that includes:

  • … a new Facilitated Customs Arrangement
  • … new arrangements on services and digital
  • …  new economic and regulatory arrangements for financial services
  • … a new framework that respects the UK’s control of its borders …

The White Paper is blunt, however, on at least two points.  One concerns mobility, and the civil rights of EU citizens.  The UK is happy enough for Brits to live abroad but EU citizens will be restricted, with the main exception of easy-going tourist visas.  The other is fisheries, where the document states baldly that access to UK waters will have to be licensed and negotiated annually.

There is of course hardly anything the issues that matter most to ordinary people, such as residence or family law, where the most that is said is that something will have to be agreed.

Europe’s negotiating position is remarkably reasonable and conciliatory.

From reports in the British press, it would be possible to imagine that the EU is being obstructive in its negotiations with the UK.  The UK is not permitted to “cherry pick”, but cherry picking – agreement point by point – is the root and essence of every trade agreement.  The Irish Taoseach  has also been reported as saying, provocatively, that the UK cannot be permitted to destroy the EU – how is that supposed to work? –  and that the UK cannot expect to be treated as an equal partner in negotiations.  Did anyone say that to Canada?

The real substance of the negotiation is rather different.  This is from a speech given at the end of April by Michel Barnier.

Even with the UK’s current red lines, our intention is to reach an ambitious and wide-ranging free trade agreement with:

  • Zero tariffs and no quantitative restrictions on goods;
  • Customs cooperation to facilitate goods crossing the border;
  • Rules to limit technical barriers to trade and protect food safety [sanitary and phytosanitary
    measures];
  • A framework for voluntary regulatory cooperation to encourage convergence of rules;
  • An open market for services, where companies from the other party have the right of establishment and market access to provide services under host state rules – I repeat, under host state rules;
  • Access to public procurement markets, investments and protection of intellectual property rights.

This comprehensive offer already reflects our high level of ambition for an FTA with the UK.  But we believe that our future economic relationship should go even further. Let me mention four points.

  1. First, in our future partnership we would like ambitious provisions on the movement of people, including related areas such as coordination of social security and the recognition of professional qualifications.
  2. Secondly, in addition to trade, we offer a socio-economic cooperation. For instance, we propose an air transport agreement, combined with aviation safety and security agreements. The UK could also participate in certain EU programmes, for instance in the field of research and innovation, where participation of third countries is allowed. That said, it would be on a different financial and legal base than today.
  3. Thirdly, since data flows will be important for several components of the future relationship, it should include rules on data.As already made clear by the European Council, for personal data, it will be for the EU to take adequacy decisions, where the level of protection in the UK is equivalent to that of the EU.
  4. Finally, given the UK’s geographic proximity and economic ties with the EU, the future relationship must be based on a strong level playing field.  It is in our economic interest – in your businesses’ interest – not to be undercut by unfair competition. So there will be no ambitious partnership without common ground on competition and state aid, social and environmental standards, and guarantees against tax dumping.  This will require adequate enforcement and dispute settlement mechanisms.

It is a ‘comprehensive offer’, and a good one.  The press has suggested that Theresa May favours an option with frictionless trade for goods, special terms for services and protection of UK interests in areas such as data sharing, security and air traffic.  And that, more or less, is what the EU is offering.

There are two main criticisms I’d make of it.  The first is the requirement for common ground on economic management, competition and state aid; that would require the UK to follow the EU’s worst economic policies. The second is that the EU has other commitments that it is duty bound to recognise.  It was the EU, not the UK, that promised British citizens that their fundamental rights would be protected.  Europe has to do more about this, regardless of the British position.

The House of Commons has agreed that European Citizenship should be maintained

Something remarkable happened yesterday.  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.

That argument (and indeed many of the arguments made in Parliament) has been the subject of several entries on this blog, the petition I have raised to the European Parliament (0922/2016, here), and a legal case currently being considered by the Dutch courts.   The position to date has been that the British Government has signally failed to protect the rights of British citizens, probably because they fear that if they make the attempt, they will have to make reciprocal concessions to the EU.  That would be worth doing, but the central argument is not one about protecting the interests of the UK; it is to require the EU to live up to the commitments that it has made to its citizens.

Is the Irish dilemma beyond a solution?

The problem for the UK government seems to rest in a choice between two unacceptable options.  On one hand, they can treat Northern Ireland wholly as part of the mainland, implying the return of a hard border.  On the other, they can treat  Northern Ireland is treated differently from Great Britain, allowing for regualtory alignment with the Republic of Ireland.  The UK government seemed posed to accept the latter, but it has been resolutely rejected by the DUP:

“We have been very clear. Northern Ireland must leave the EU on the same terms as the rest of the United Kingdom. We will not accept any form of regulatory divergence which separates Northern Ireland economically or politically from the rest of the United Kingdom.”

There is a third option.  The United Kingdom has three devolved governments, each of which already has partial derogations from laws and rules which apply in England.  If the British government accepted that there could be a derogation of rules for all three devolved governments, it would no longer be the case that Northern Ireland was being treated differently from the other parts of the United Kingdom.    The precise scope of that derogation has to be considered, but the terms and management of the derogation could be delegated to Scotland, Wales and Northern Ireland to resolve.  It’s called ‘devolution’.

The negotiations about Brexit aren’t addressing key issues

Although the EU has been behaving badly about the Brexit negotiations, they have reason to complain about Britain, too.   They’re right, first, to say that Britain’s position papers are too vague to be any use.  Britain offered 16 pages on trade, for example, recently supplemented by another 11 pages on continuity.  It’s not difficult to know what a successful trade agreement looks like.  The agreement with Canada, CETA, runs to nearly 1600 pages.  What  the UK had to do – and it’s had 15 months to do it in – was to begin with those 1600 pages, identify which terms are acceptable to Britain (they are all, after all, already acceptable to the EU), and then work on the differences.  That would still be a lot of work, but at least there’d be a meal on the table rather than a bowl of twiglets.  Britain can hardly complain that trade is  not being discussed if they’ve not offered any points for discussion.

The EU negotiators are right, too, to identify key issues besides trade: citizens’ rights, Ireland and treaty obligations.  The UK’s concerns are difficult to decipher; the latest position paper relates to the confidentiality of official documents, which suggests that government ministers are more concerned with covering their backs than they are with getting on with the business. Where the Commission is behaving badly is to say that nothing else gets discussed.  The EU also has treaty obligations.  Article 50(2) states that

the Union shall negotiate and conclude an agreement with that State, setting out the arrangements for its withdrawal, taking account of the framework for its future relationship with the Union.

Whatever happens about the bill, the EU has no right to refuse to discuss the future relationship.

Two of the three items the EU is starting with are, in fact, about that relationship: Ireland, and citizens’ rights.  The Irish border is difficult, but not intractable, because different elements can be separated out and dealt with differently:  for example, Switzerland is not part of the customs union or the EU but is part of Schengen.  Citizens’ rights is much the more complex problem, and neither of the parties has shown any inclination to acknowledge that UK citizens resident in the UK are also currently citizens of the EU, and many will face the same sort of problems with split families, cross-border care, pension rights or interrupted periods of residence that people now in Europe or other nationals now in the UK will face.