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  The formal census figures are out of date, as usual, but the population of the UK in 2017 was  roughly 66 million, and 90% are British nationals.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million British nationals in the UK, and 5.6 million outside the UK, whose rights to European citizenship are being withdrawn.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.

 

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.