- Rishi Sunak’s favourability rating is down from 81.5 per cent to 81.1 per cent – in other words, by so infinitesimal a margin as to make no difference. In other polls, his soaring rating would be driven by the subsidies that the Treasury is paying out. In this one, his resistance to lockdowns will be a significant contributor to his popularity.
- Boris Johnson was marginally in negative territory last month (-10 per cent) and marginally in positive terroritory this month (13 per cent). We can think of no reason why, given the panel’s decision to mark him down, the late September finding should have been in the red and the October one in the black (or vice-versa had it been case).
- Matt Hancock slides a bit further into the minus ratings, Gavin Williamson a bit back towards the plus ones. Liz Truss is up a little and Priti Patel by more, having had a sticky summer over the channel crossings. All in all, it’s much of a muchness – with Douglas Ross down by about 25 points, now that his Party Conference coverage has faded.
- These ratings were taken at the end of last week, before the Prime Minister’s emergency press conference on Saturday. We suspect that it would have lowered his rating and that of the Cabinet; you may disagree; perhaps we will hold a snap survey later this week to find out…
"The position we have taken" on not extending Free School Meals in holidays "is the right one" says Northern Ireland Secretary @BrandonLewis
— Sophy Ridge on Sunday (@RidgeOnSunday) October 25, 2020
Iain Dale presents the evening show on LBC Radio and the For the Many podcast with Jacqui Smith.
I have to admit that I didn’t watch any of the Conservative virtual conference online. Judging by the number of registrations, it can be deemed a success. Twenty thousand people registered, and there were often more than 6,000 people watching.
I’m told fringe meetings proved more popular than the set-piece cabinet minister speeches (wasn’t it ever thus?) with some events, including those hosted by ConHome) attracting online audiences in four figures.
Given that normal fringe meetings might attract a couple of hundred people at most, this ought to give the conference organisers food for thought for the future. CCHQ told me this week that future conferences would almost certainly be hybrid events, and that’s exactly right. The more people who are able to take part, the better.
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Watching highlights of the US Vice-presidential debate between Mike Pence and Kamala Harris, it almost seemed like normal politics had returned.
For the most part, the debate was conducted with mutual respect, good humour and dignity from both candidates. Yes, there were some interruptions, but that happens in debates. We had none of the abuse, insults and acrimony that characterised the debate between Donald Trump and Joe Biden a week before.
And it wasn’t just the President who was guilty. We don’t know yet whether the next debate, due to take place in Florida next week, will go ahead. If it does, let’s hope that it’s more edifying than the first one.
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On Tuesday, I deputised for Charles Moore in the Daily Telegraph. I thought long and hard about writing what I did – but it had to be said.
I wrote about the role of the Party Chairman, and how its importance has diminished over the years, and how the present incumbent, Amanda Milling, was performing no useful role, except to travel the country and eat a few rubber chickens
It gave me no pleasure, and in many ways it’s not her fault. She’s performing the role dictated by Number Ten. She has no power to change anything, and scant little influence. Her co-chairman, Ben Elliot, is the one in control and we all know it.
The one role she could perform, but hasn’t got the experience to do, is to get out there on the media and be a lightning rod for the Prime Minister. That’s what Cecil Parkinson did. It’s what Norman Tebbit used to do. It’s what Brian Mawhinney did for John Major. And it’s what Brandon Lewis did for Theresa May.
Amanda Milling went on Any Questions last Friday, and proceeded to read out lines from her briefing notes. It was buttock-clenchingly embarrassing. A programme insider reckoned she was the worst guest they had had on in recent memory.
Again, in many ways, I don’t blame her for that. Everyone tells me that Milling was an excellent Deputy Chief Whip, but we all know that whips don’t do media, and don’t speak in the chamber.
So to appoint someone with little media experience as co-Party Chairman was bizarre to say the least. It did her no favours whatsoever. By all accounts, the Number Ten machine is frustrated by her performance. No shit, Sherlock. Well, they shouldn’t blame her for it, they should apportion the blame to the person who made the appointment.
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I was disappointed but not surprised to see Liam Fox fail to reach the final two in the race to become the next director general of the World Trade Organisation.
The EU was always determined to scupper him, which says far about them than it does about him. He is very well qualified to do the job, which will now be a straight fight between candidates from South Korea and Nigeria. Péter Szijjártó, Hungary’s Foreign Minister, has spoken out and said the whole charade has not been “to the greater glory of the European Union”.
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Just as the Conservative Party has had to put its conference online, so have literary festivals – or at least some of them. I’ve done quite a few on Zoom over the last few months, but appeared in person last Saturday at the Cheltenham Literary Festival, as trailed on this site last week.
The event was organised it very well, ensuring that both speakers and audience were safe. Next Friday ,I’m doing the Bristol Festival of Ideas remotely, but the Wells Festival of Literature in person on the same day.
Then on Sunday October 18, I’m in Twickenham being interviewed on stage by LBC’s Steve Allen, and then on October 24 in Diss, Norfolk.
On that occasion Brandon Lewis will interview me, which I suspect he’s going to relish, given he tells me I always give him such a hard time when he comes on my show. Ticketing details can be found here.
SR "Do you think you were thrown under a bus?"
BL "No not at all"
Brandon Lewis says when he said the Internal Market Bill breaks international law in a "specific and limited way" he was "clearly reading from a script" and that it was put together in the Northern Ireland office pic.twitter.com/DeyxWCG7iz
— Sophy Ridge on Sunday (@RidgeOnSunday) October 4, 2020
- It’s not unprecedented for a Conservative Prime Minister to fall into negative territory in our monthly Cabinet League Table. In April last year, Theresa May set a new record of scoring the lowest rating it has ever recorded – at -74. Compared to that, Boris Johnson’s -10.3 this month looks tame.
- Nonetheless, it’s a rotten springboard from which to vault into Party Conference as it begins today. As we wrote yesterday, it reflects weariness with curbs, frustration with what seem to be fluctuating and arbitrary rules, a sense that Ministers at the top of Government are divided – and a certain frustration with the Prime Minister himself.
- Liz Truss up to second in the table, from 62 per cent to 70 per cent. Dominic Raab and Michael Gove’s scores are both down but, with Steve Barclay and Truss, they are the only Cabinet Ministers to clear 50 per cent. As recently as last December, the entire Cabinet was in the black, with 18 of its members above that 50 per cent rating.
- Matt Hancock joins Gavin Williamson, Robert Jenrick and Johnson in negative territory. Amanda Milling clambers out of it (just about). On a happier note, Douglas Ross more than doubles his rating from 26 per cent to 61 per cent: his aggression and energy in Scotland are getting noticed.
- And finally: the Prime Minister has been low, though not nearly by this much, in the table before – shortly before he resigned as Foreign Secretary. He bounced back then, and could do so again. Once again, we make the point that this is much the same panel as gave him a 93 per cent rating after the last election.
Stephen Booth is Head of the Britain in the World Project at Policy Exchange.
It is often said that Brexit is low on the list of the EU’s priorities. That national capitals have not been fully engaged in a process which they have delegated to Michel Barnier and the European Commission. The introduction of the Government’s Internal Market Bill has certainly got the EU’s attention.
The events of the last two weeks have upped the ante, but the two sides continue to talk and a deal between the UK and the EU is still possible, if the political appetite is there.
As I noted in my previous column, the negotiations over a new UK-EU free trade agreement have been locked in a stalemate over fishing and state aid for weeks, and a compromise can only be unlocked by high-level political intervention.
At the same time, a parallel, and up to now seemingly boring, process has been underway to implement the Withdrawal Agreement and the Northern Ireland Protocol. It has long been clear that the UK and the EU have significant disagreements to resolve in the Joint Committee, the forum established under the Withdrawal Agreement empowered to iron out the practical details of the Protocol’s implementation.
In its May 2020 Command Paper on the subject, the UK identified its practical concerns. For example, under the Protocol, Northern Ireland is subject to the Union’s Customs Code, which requires exit summary declarations for goods leaving the area to which the rules apply.
However, the UK’s view is that export or exit summary declarations should not be required for NI to GB trade (since Article 6 of the Protocol states that nothing in the Protocol should prevent NI businesses from having “unfettered access” to the rest of the UK).
Removing this requirement should not be particularly controversial, since Northern Ireland will remain in the UK’s customs territory (as stipulated in Article 4 of the Protocol) and therefore any risk of complaints about the arrangements in terms of international obligations should rest with the UK, rather than the EU.
Another, more significant issue is the status of goods travelling from GB to NI deemed to be “at risk” of entering the EU (and therefore subject to EU tariffs). The Joint Committee is tasked with defining which goods are “at risk” and therefore broadening the scope of goods that would not be subject to tariffs. However, the default is that goods are “at risk”, unless the Joint Committee agrees otherwise.
The powers taken in the Internal Market Bill are advertised as an “insurance policy” to be used in the event of failure to address the UK’s concerns about the Protocol (which include the state aid provisions as well as exit summary declarations) via agreement within the Joint Committee and/or via a free trade agreement. There are reports that the Government plans to use the forthcoming Finance Bill to give itself similar powers with regard to tariffs.
Leaving aside the legalities and the domestic politics for a moment, why might the UK have decided to initiate a row with Brussels now and pre-empt the Joint Committee process? Of course, we cannot divine the precise motivation. Perhaps no deal is now seen as an inevitable, or at least probable, outcome by some in Government? But the logic of the negotiations offers another plausible rationale.
Implementation of the Northern Ireland Protocol and the wider free trade negotiations are theoretically on distinct tracks. While the Withdrawal Agreement committed both parties to seek to negotiate a free trade agreement in good faith, the Protocol comes into effect at the end of the transition period irrespective of any UK-EU trade agreement.
However, it is clear from the way the negotiations have been structured (at the strong insistence of Brussels) that the trade negotiation and the practical functioning of the Protocol are linked, and this gives the EU leverage over the trade negotiations. Since EU negotiators are not obliged to reach compromises in the Joint Committee on the issues causing the UK concern, they are able to hold the process up in order to apply pressure to the UK in the wider trade negotiation. Just because the EU is within its rights to do so, does not mean it should.
What the Government is doing, for better or worse, is to suggest to the EU that its leverage is not quite as strong as it would like to think. Ultimately, under the Protocol it is UK officials and agencies who will be tasked with enforcing EU rules. Realistically speaking, how plausible is it that the UK would do so zealously in a scenario where not only have the UK and the EU failed to reach a trade agreement, but the EU is also insisting on its maximalist interpretation of the Protocol?
The UK might have made this point more subtly if it had made clear that any measures it takes in the future would be strictly consistent with Article 16 of the Protocol, which allows either party to take unilaterally “appropriate safeguards” if the application of the Protocol leads to “serious economic, societal or environmental difficulties”, and its pre-existing commitments under the Good Friday Agreement.
Equally, it should also be noted that the UK is not declining to implement other important aspects of the Protocol. Indeed, as Michael Gove noted in closing Monday’s debate and Brandon Lewis repeated in committee evidence yesterday morning, the UK is erecting border-inspection posts for sanitary and phytosanitary (SPS) checks on goods entering Northern Ireland, which in an ideal world it would not have to and despite the opposition of the DUP.
Ultimately, what this row demonstrates is that a negotiated settlement on the Protocol and the wider trade issues should be preferable for both sides compared to an acrimonious breakdown in the UK-EU relationship. Indeed, the UK legislation introduced this week would be redundant if compromises can be reached.
A Protocol that is politically sustainable is in the EU’s interests. Equally, a UK-EU trade agreement would not remove all of the irritations thrown up by the Protocol but it could certainly help to smooth over some of the important issues. If there are no tariffs between the UK and the EU, there is less risk to the EU of goods entering the Single Market at a lower tariff. If the EU and UK reach agreements on SPS, like the EU has with New Zealand, then paperwork could be simplified. Equally, establishing a UK domestic subsidy regime, recognised by the EU in a free trade agreement, would help prevent the “reach back” of the state aid provisions in the Protocol that are also of concern to the UK.
Only time will tell if this episode is the beginning of the path to a deal or the point when things turned sour.
As we reported yesterday, Boris Johnson told the Commons on Monday that, in the event of the so-called safeguard provisions that are contained in the UK Internal Market Bill being triggered, “Ministers would return to this House with a statutory instrument on which a vote…would be held”.
This was one of the five proposals made by Geoffrey Cox, but it doesn’t satisfy all those who are unhappy with the measures.
The statutory instrument would presumably be considered under the affirmative rather than the negative procedure but, even so, it would be debated after the provisions came into effect, not before – and proceedings would be relatively brief.
The clauses of the Bill that propose the provisions won’t be debated until next week, so much could change during the days ahead. But as we write, a compromise is taking shape.
The backing-off from Brandon Lewis’ statement of last week by the Government has gathered pace, with Priti Patel denying yesterday that the measures would break the law at all. Meanwhile, most of those who abstained on Monday are also in a mood for compromise.
Essentially, they agree with Cox that the UK should be able to implement “temporary and proportionate measures” to protect “the fundamental interests of the UK” if necessary.
These would arguably be lawful; certainly not indisputably unlawful. An agreement between Johnson and the rebels would bring a double gain for the Government. First, it would reduce opposition to the Bill, thus sending the Lords a clear signal that they shouldn’t hold it up. Second, it would also send one to the Courts about the will of Parliament.
So it looks as though we are roughly in the territory suggested by this site on Monday – if not Government acceptance of Bob Neill’s amendment, then its support for something very like it.
ConservativeHome understands that the former Attorney-General, who expressed his reservations about the Bill yesterday in the Times, will support it were the Government to make five concessions.
These are concentrated on a guarantee to the Commons that the Government will not trigger the safeguarding measures save in the following circumstances.
- A manifest breach by the EU of its duties with regard to good faith, best endeavours or both in the execution of the Withdrawal Agreement and the Northern Ireland Protocol.
- If the arbitration panel set up under the terms of the Agreement rules that this has taken place.
- Where pending a decision by the panel “it is urgent and necessary to take temporary and proportionate measures to the protect the fundamental interests of the UK”.
- Under the safeguarding provisions of the Agreement itself (which both the UK and the EU are entitled to use).
- After the Commons has voted to approve the implementation of the measures by passing a statutory instrument in the form of the affirmative resolution procedure.
In our view, two points arise from putting this list of proposals alongside the Bill as it stands.
- First, the Government and most of its critics are now not that far apart. Very few, if any, believe that no UK government should ever be in the position where it can be accused of breaking international law. Most, like Cox, think that if necessary Ministers must sometimes take action that will lay them open to that charge (as in his third point above). But they’re opposed to this Government declaring that the safeguarding measures would definitely break international law if applied when it’s not clear that these would.
- Second, Boris Johnson appears to have conceded Cox’s last point by saying that “if the powers were ever needed, Ministers would return to this House with a statutory instrument on which a vote…would be held”. That is consistent with the affirmative resolution procedure being used, as Cox wants. However, a vote on a statutory instrument would only give the Commons the opportunity to bar the application of the measures retrospectively – not in advance.
So the Government is presently holding its line on not conceding such a vote. But the safeguarding measures won’t be debated until next week. And new compromise proposals or / and last-minute offers, sometimes made from the despatch box, have a way of emerging when controversial parts of Bills are being considered.
More broadly, the Government is distancing itself from Brandon Lewis’ claim in the Commons last week that the measures would breach international law if applied. Though it has not disowned Lewis’ statement, Johnson suggested yesterday that the EU isn’t negotiating in good faith.
If so, that would make the legal position on any triggering of the safeguarding measures more complex. But we repeat: they may never be implemented, since they won’t be in the event of these negotiations concluding with a deal, which is still possible – and arguably more likely than otherwise.
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Playbook today lists 30 Conservative MPs who didn’t vote. The usual warning about absentions not necessarily being deliberate applies to the list below. (So for example, Theresa May is abroad.)
- Stuart Andrew
- Crispin Blunt
- Karen Bradley
- Graham Brady
- Rehman Chishti
- Christopher Chope
- Geoffrey Cox
- Jackie Doyle-Price
- Tobias Ellwood
- Liam Fox
- George Freeman
- Richard Graham
- Stephen Hammond
- Oliver Heald
- James Heappey
- Damian Hinds
- Simon Hoare
- Sajid Javid
- Edward Leigh
- Jack Lopresti
- Tim Loughton
- Theresa May
- Bob Neill
- Owen Paterson
- Julian Smith
- Ben Spencer
- John Stevenson
- Gary Streeter
- Charles Walker
- Jeremy Wright
Garvan Walshe is a former National and International Security Policy Adviser to the Conservative Party.
The trouble with international agreements is that they are, well, international. By this I mean that sovereignty can’t be used as a trump card in the way that parliamentary sovereignty can in most domestic law.
This strongly suggests that the Government’s course of action in seeking, in the disarmingly frank words of Brandon Lewis, “to break international law in a specific and limited way” has not been properly thought through.
The domestic problems with this approach are well known. Any legislation to break international law will run into trouble in the Lords, which will feel entitled to block it, as it was not only absent from the election manifesto, but in fact directly contradicts its promise to implement the Brexit deal sealed in November 2019.
There is also the matter of the ministerial and civil service codes, which forbid the breaking of the law (the removal of the word “international” from the code makes no difference in practice), and are likely also forbid actions openly directed towards that aim.
It is therefore an open question of constitutional law whether legislation to this end, introduced improperly by ministers, and drafted by civil servants would be valid. It is rather clearer that ministers or officials participating in the production of such legislation risk falling within the ambit of the common law offence of misconduct in public office.
But my concern here is international. The foundation of international law has long been that states are sovereign. As well as meaning that they begin with full powers to arrange their internal affairs, it also means they have the power to make agreements with each other. An agreement means that the states accept obligations to each other, which is what makes a treaty different from a state making a unilateral declaration to itself. While a state retains the practical power to break an international agreement, it cannot change the meaning of the agreement on its own.
It is also a consequence of this sovereign power that states are able to revise treaties they make, by mutual agreement, and it is of course often the case that this revision is dictated by power politics, but even that is different from mere reneging on a treaty. Nevertheless, the power of revision is usually held collectively by the states that signed the agreement, not by individual signatories. Some treaties, like indeed the Treaty of European Union provide an exit mechanism (Article 50), but others, like the Withdrawal Agreement, do not.
The Government might have been better placed to argue that it was trying to use its residual sovereign power to seek to renegotiate the Withdrawal Agreement, which it had concluded under the duress of the two-year withdrawal period contained in Article 50.
While that would probably not have gone down well in Brussels, openly seeking to break these particular parts of the withdrawal agreement is rather more challenging, because Michel Barnier’s team built in three levels of safeguards against what it would consider to be “perfidious Albion.”
First, the relevant aspects of the Ireland/Northern Ireland protocol are governed by EU law, interpretable by British courts and, ultimately, European Court of Justice. Because of the way the UK incorporates treaties (including treaties that give effect to legal systems like the EU’s) into its domestic law, sufficiently explicit legislation could probably escape disapplication by UK courts.
But this in itself would be a direct violation of the agreement, which the European Court could be expected punish with a fine. Though the UK could refuse to pay the fine, on the grounds that it was acting according to it own law, this would just trigger the second level of dispute resolution, which is the Joint Committee established to be established under the agreement.
If the Joint Committee cannot resolve the dispute to both sides’ satisfaction, and in this case it is hard to see how it could, the case would be submitted to an arbitration panel at the Permanent Court of Arbitration. Lewis’s declaration that the UK intends to “break international law” is unlikely be helpful to the British case.
Now, the UK may as a sovereign state in practice refuse to abide by the arbitration panel, but in that case the agreement (Article 178, paragraph 1) provides for the panel to “impose a lump sum or penalty payment”.
If the UK refuses to pay that, the subsequent paragraph allows the EU to suspend either parts of the Withdrawal Agreement with the UK, or of other agreements it has. These include agreements on aviation freedoms, equivalence for financial services, “data adequacy” vital to the tech sector, and the right of truck drivers to travel to the EU. This would amount to the “no deal Brexit” that the Prime Minister’s withdrawal agreement, endorsed in the 2019 general election, was supposed to avoid.
Now that the Government does not need the votes of the DUP, it should think carefully about whether it would rather spend the rest of its term engaging in an optional legal fight with the EU, or, having got Brexit done at the end of the year, stick to running the country it was elected to govern.