Tagged: Brexit

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 are the members of the European Union.  Despite the fine words and the formal declarations, the people who live in those states are not its citizens. 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.

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.