Would May agree to go quickly to get her deal through? She may yet hint at it. But watch the small print.

The idea might suit the leadership aspirations of some potential successors. But wishful thinking and stubborn reality don’t mix – at least not in this case.

Some hold Theresa May entirely to blame for the Government’s current condition – and Brexit’s.  They argue variously that she has never believed in it, or else given way to Remainers, or to else to Brexiteers, or else been “adamant for drift”, or else been run by Olly Robbins, or else simply cocked everything up, especially since calling the 2017 election.  Others claim that it is unjust to make her carry the can, amidst a divided Party, Commons, Parliament and Country.  Our own take is somewhere between the two.

Whichever view Conservative MPs take, they should all agree on one point – namely, that there is no sign of May wanting to leave Downing Street.  Prime Ministers almost never go willingly.  The only exception we can think of recently is Harold Wilson – and he was ill, so shouldn’t really count.  No, May looks dug in for the moment, unless there is a long extension.

Perhaps she will surprise us all.  Maybe she will emerge from Number Ten, for no apparent reason, to announce publicly that she is willing to resign.  But we doubt it.  It is more likely that, if the Prime Minister’s back is up against the wall, as it was during December’s leadership challenge, hints will be dropped and briefings given – but no pledge offered of an immediate departure.

Nor is there a means of forcing her out quickly.  There can be no ballot until next autumn. The 1922 Committee won’t move quickly.  Nor will the riven, quarrelling Cabinet.    Its Soft Brexiteers want to prop her up, for fear of Boris Johnson or Dominic Raab succeeding her – and of a new leader firing Philip Hammond.  The harder ones have lost their mojo.

Other potential successors, such as if Jeremy Hunt or Sajid Javid, will not want to spearhead a putsch, or try to – partly on the principle that he who wields the dagger never wears the etc.  (“After you, Saj.”  No, after you, Jeremy.)  So the suggestion that the Prime Minister might be prepared to stand down to get her deal through falls at the first hurdle – namely, that there’s no sign of her playing ball.

Tory MPs will be hunkering down for Meaningful Vote Three this weekend.  It will bring both principle and pragmatism into play, and the calculations they must make are not easy.  We will say more about the choice later this week.  But as they ponder the future, they can surely banish one scenario from their minds – namely, May quitting, during the next few days, in order to let her deal pass.  That might suit the leadership aspirations of some potential successors.  But wishful thinking and stubborn reality don’t mix, at least in this case.

The verdict of Cash’s ‘Star Chamber’ on the UK-EU Political Agreement: full text.

The panel, comprising legally-trained Conservative and DUP MPs as well as outside experts, set out their full legal reasoning for rejecting the deal.

Verdict of the “Star Chamber” under Sir William Cash MP on the UK-EU Political Agreement

13 March 2019

  • Sir William Cash MP
  • Suella Braverman MP
  • Robert Courts MP
  • Nigel Dodds MP
  • David Jones MP
  • Dominic Raab MP
  • Michael Tomlinson MP
  • Dr TD Grant
  • Martin Howe QC
  • Barnabas Reynolds

Summary of our Conclusions

1. Yesterday’s documents considered individually and collectively do not deliver “legally binding changes” to the Withdrawal Agreement (“WA”) or to the Northern Ireland/Ireland backstop Protocol (“the Protocol”). They fail to fulfil the commitment made by government to the House in response to the Brady amendment “to obtain legally binding changes to the withdrawal agreement”.

2. They do not provide any exit mechanism from the Protocol which is under the UK’s control. Any exit by the UK from the Protocol cannot take place without the agreement of the EU and therefore the position remains as set out in paras 14-16 of the Attorney General’s advice dated 13 November 2018 that “the Protocol will endure indefinitely until a superseding agreement takes its place”, and that the WA “cannot provide a legal means of compelling the EU to conclude such an agreement”.

3. The suggestion that “bad faith” by the EU could provide a legal route for the UK out of the Protocol is not credible in practice within any determinate or reasonable timeframe. The AG’s advice at para 29 was that demonstrably bad-faith conduct on the part of the EU “would be highly unlikely; all they would have to do to show good faith would be to consider the UK’s proposals, even if they ultimately rejected them.” The threshold for demonstrating bad faith before an international tribunal is very high, and nothing in the documents make this a credible possibility.

4. The UK could not unilaterally disapply the Protocol by alleging bad faith, but would be bound to submit the dispute to arbitration under Part 6 of the WA, and would need a prior finding by the panel of breach on the part of the EU in order to invoke the right under Art.178(2) of the WA to suspend (not terminate) provisions of the WA or Protocol. Any arbitration would be at best a lengthy and uncertain procedure which under Art.174 requires a reference to the ECJ of any questions of EU law involved. Even if the arbitration panel found in favour of the UK, para 14 of the Joint Instrument confirms that it would not enable the UK to exit the backstop.

5. The Attorney General’s further advice today (12 March 2019) indicates at para 17 that there is a “reduced risk” of the UK being trapped in the Protocol but this is caveated by the words “at least in so far as that situation had been brought about by the bad faith or want of best endeavours of the EU.” We consider that the prospects of such findings against the EU are remote, and note that at para 10 the AG only goes so far as to say that “it is arguable” that the UK could secure termination of relevant obligations under the Protocol. Such faint and remote prospects of escaping from the Protocol do not materially change the position the UK would find itself in if it were to ratify the WA. We agree with the AG’s final para 19 that “the legal risk remains unchanged that if through no such demonstrable failure of either party, but simply because of intractable differences, that situation does arise, the United Kingdom would have, at least while the fundamental circumstances remained the same, no internationally lawful means of exiting the Protocol’s arrangements, save by agreement.”

Our supporting reasoning

We have been asked to address issues arising from the latest combined UK-EU withdrawal documentation, comprising the 26 November 2018 draft Withdrawal Agreement with its “backstop” Protocol and the Political Declaration, and to assess the impact (if any) of the three subsequent documents produced on 11 March 2019.

We shall address the implications of this combined package of documents in the context of the “Brady” amendment to a motion of the House of Commons on 29 January 2019 that “requires the Northern Ireland backstop to be replaced with alternative arrangements to avoid a hard border; supports leaving the European Union with a deal and would therefore support the Withdrawal Agreement subject to this change”.

In particular we shall consider the degree of certainty we believe the latest package of documents achieves in ensuring the Northern Ireland backstop will be replaced with alternative arrangements, either before or after it comes into force.

The problem to be addressed

1. Introduction

On 29 January 2019, the House of Commons passed the ‘Brady’ amendment. It inserted the following text into the House’s motion: “and requires the Northern Ireland backstop to be replaced with alternative arrangements to avoid a hard border; supports leaving the European Union with a deal
and would therefore support the Withdrawal Agreement subject to this change.”

In responding to the House’s approval of the Brady amendment, the Prime Minister said: “We will now take this mandate forward and seek to obtain legally binding changes to the withdrawal agreement that deal with concerns on the backstop while guaranteeing no return to a hard border between Northern Ireland and Ireland.”

Our task is therefore to analyse the subsequent arrangements negotiated between the UK and the EU, and (1) to assess whether and if so to what extent they amount to “legally binding changes”, and (2) to consider whether they deal with the House’s concerns about the backstop as expressed in the Brady amendment.

2. Replace, or change, the backstop?

The Brady amendment refers to the backstop being “replaced”, while the Prime Minister’s response refers to unspecified “changes to” the withdrawal agreement. The backstop (formal title, the Protocol on Ireland/Northern Ireland) is physically attached to the text of the Withdrawal Agreement (“WA”) and, by virtue of Art.182 WA, “shall form an integral part of this Agreement”. It follows that on the wording as it stands, the Protocol stands equally with the main WA text as part of the legally binding international treaty which would be concluded if the WA is approved and ratified.

The terms of the Brady amendment would be satisfied by a change to the WA which consists of removing the current Protocol and replacing it with text setting out alternative arrangements. Since this is not being done, it needs to be considered whether any changes to the WA will achieve by alternative means the effect intended by the House in the Brady amendment.

A change to the WA which gives the UK the legal right to prevent the backstop Protocol coming into effect would achieve the same effect as the Brady amendment, since the UK could then effectively insist on alternative arrangements regarding the NI border.

A change to the WA which gives the UK a legal right to exit the Protocol after a period of time is not equivalent to the Brady amendment, in view of the negative effects on the UK’s constitutional integrity and on its international trade policy of being trapped in the backstop for that period of time. On the other hand, a lock-in to the backstop for a limited period is clearly better than the indefinite lock-in which could happen under the current text. However, a limited period is not
being stipulated or even attempted by the latest arrangements.

3. The central problem: indefinite lock-in if there is a stalemate in negotiations

According to Art.184 of the WA and Art.2(1) of the Protocol, the EU and the UK will use their “best endeavours” to conclude an agreement on the future relationship between the UK and the EU before the end of the transition period. If such an agreement is concluded by then, it is envisaged that it would supersede the Protocol and prevent its “backstop” provisions coming into effect. Further, if the Protocol does come into effect, there is a review mechanism under Art.20 of the Protocol by which the UK/EU Joint Committee can decide that the Protocol is no longer necessary if alternative arrangements are put in place.

However, each of these routes out of the backstop Protocol requires the agreement of the EU. A superseding agreement obviously requires the EU to agree it. The review mechanism requires that the EU and UK should “decide jointly” that the Protocol should no longer apply. This means that the EU member of the Joint Committee has a veto.

The Protocol itself in Art.1(4) and its recitals says that it is “intended to apply only temporarily”. But the problem is, despite this expression of intention and the expression of the parties’ “best endeavours” to reach a replacement agreement, if the parties fail to agree then the backstop Protocol would come into force and will endure indefinitely.

The Attorney-General’s letter of advice to the Prime Minister dated 13 November 2018 is attached for reference, as well as his latest letter of 12 March 2019. In paras 12-16, headed “The indefinite nature of the Protocol”, he explains with clarity why, despite the references within the text to its intended temporary nature and to the intention of the parties to supersede it with another agreement, it will kick in and then stay in force unless and until there is a joint agreement to supersede it. He concludes at 16:

“16. It is difficult to conclude otherwise than that the Protocol is intended to subsist even when negotiations have clearly broken down. The ordinary meaning of the provisions set out above and considered in their context allows no obvious room for the termination of the Protocol, save by the achievement of an agreement fulfilling the same objectives. Therefore, despite statements in the Protocol that it is not intended to be permanent, and the clear intention of the parties that it should be replaced by alternative, permanent arrangements, in international law the Protocol would endure indefinitely until a superseding agreement took its place, in whole or in part, as set out therein. Further, the Withdrawal Agreement cannot provide a legal means of compelling the EU to conclude such an agreement.” [emphasis in original text]

After considering the review mechanism in the Protocol (now in Art.20 but in Art.19 of the draft at the date of his letter), the Attorney-General reaches the following conclusion:

“30. In conclusion, the current drafting of the Protocol, including Article 19 [now 20], does not provide for a mechanism that is likely to enable the UK lawfully to exit the UK wide customs union without a subsequent agreement. This remains the case even if parties are still negotiating many years later, and even if the parties believe that talks have clearly broken down and there is no prospect of a future relationship agreement. The resolution of such a stalemate would have to be political.”

4. Consequences of “lock in”

The existence of the Protocol and the fact that it will automatically come into force in default of an alternative agreement being reached with the EU will profoundly affect the negotiating position of the UK. This is because the prospect of being locked in to the Protocol if agreement is not reached will impel the UK to make concessions in its negotiations with the EU in order to avert the adverse consequences of failing to reach agreement of the Protocol then coming into force at the end of the transition period. Thus the Protocol with its lock-in risk will gravely undermine the negotiating position of the UK as compared with a scenario where the Protocol were replaced in accordance with the Brady amendment or the UK had a unilateral right to withdraw from it. This is because the consequences of the Protocol coming into force are asymmetric in the extreme.

For the UK, a failure to conclude an alternative agreement would result in the whole UK being locked into a customs union with the EU with no say on external tariff policy or on the EU’s external trade agreements which the UK would be obliged to implement. In addition, the whole would be subject to a range of “level playing field” obligations. A particularly damaging obligation is to have to apply EU State aid law as it dynamically evolves, while having no political representation on the EU Commission and without the political influence to prevent these wide-ranging and highly discretionary rules being deployed in a way which damages the UK economy.

(The State aid rules would be applied directly by the Commission in Northern Ireland and under Commission supervision in the rest of the UK.).

In addition, the application of the Protocol regime to Northern Ireland would violate the principle of democratic consent (which is enshrined in the Belfast Agreement) and have damaging constitutional and political consequences, as we outline in a later section.

From the EU27 perspective, the consequences of the Protocol coming into force are very different. The Protocol would guarantee continued tariff-free access for EU27 producers of goods into the UK market. In addition, and by contrast with the scenario if the UK were to conclude a Free Trade Agreement with the EU and operate an independent global trade policy, the Protocol guarantees that the UK must maintain the tariff barriers mandated by the EU’s Common External
Tariff against competing third country imports.

Therefore the Protocol locks in the EU27’s large surplus in trade in goods with the UK, which has grown to £95bn in 2017 from rough balance in 1998. In addition, since EU27 goods exports to the UK are heavily concentrated in high tariff sectors, the Protocol guarantees that EU27 producers will continue to be able to export their goods to the UK at above prevailing world prices behind the shield of the Common External Tariff.

Given this apparently strong economic incentive for the EU to push the UK into the backstop Protocol and keep it there, the adequacy of the legal arrangements has to be assessed on the assumption that the EU may use all the levers that are legally open to them (and without needing to engage in bad faith) either to push the UK into the Protocol, or to force the UK in lieu into an agreement which is similarly beneficial to the EU and as detrimental to the UK as the Protocol. Unless the UK has a legally secure route out of the deadlock problem, its negotiating position will be fatally undermined.

Finally, it is far from clear that the UK would escape from the backstop Protocol even by concluding a replacement long term trade agreement with the EU. Assuming that such an agreement would have a conventional termination clause of say 12 months’ notice, we see nothing that prevents the EU from requiring that the UK agree that the Protocol or something like it should come back into effect in the event of the long term relationship agreement being terminated. Therefore if the Protocol is once agreed without a legally enforceable exit route for the UK, there is a very high risk that it will become a permanent liability of the UK.

5. Binding nature of the Protocol under international law

A number of suggestions have been in circulation that the UK might be able to escape from the Protocol in the future despite the lock-in problem identified in the Attorney-General’s advice. These suggestions are (1) that the UK could leave the Protocol in the future “because one Parliament cannot bind its successor”, (2) that the UK could simply breach and repudiate the Protocol and take the consequences, and (3) the UK might be able to escape from the Protocol because of various arguments arising under the Vienna Convention on the Law of Treaties (VCLT).

We note that none of these points appears in the Attorney-General’s letter of advice, which concludes that the only way out of the Protocol is political – i.e. ultimately by agreeing terms which are acceptable to the EU. We infer that the Attorney and the Government’s other legal advisers did not (rightly in our view) regard any of these points as providing a secure or credible route of escape from the backstop, in the face of the EU’s refusal to agree terms within the treaty which would give the UK that right.

(1) “One Parliament cannot bind its successor”

This suggestion is based on a misunderstanding of the relationship between domestic law and international law. The doctrine that one Parliament cannot bind its successor is a principle of the UK’s internal constitutional law. As a matter of internal law, an Act passed by one Parliament cannot prevent the next Parliament from repealing it.

However this doctrine has no application to international law obligations under treaties. Under international law, States are bound by treaties which they conclude regardless of changes of government or legislature. Even if there is a revolution and the whole constitution is overthrown, the State continues to be bound by treaties validly concluded by the previous regime.

Although the backstop Protocol is very unusual or probably unique in treaties of this kind in having no conventional termination clause, if it is concluded under the authority of the present Parliament it will continue to bind the UK under future Parliaments.

(2) “Just breach the Protocol and face the consequences”

The second suggestion simply to breach the treaty faces severe problems and should be regarded as unrealistic in view of the legal, constitutional and practical problems that would arise. The UK
has a good reputation for adherence to treaty obligations. That reputation is important for our credibility, particularly in entering into new trade agreements, and it would be gravely damaged by repudiating a lawful treaty. In addition, a treaty breach could give rise to retaliatory action by the EU which would be rendered lawful by a UK treaty breach.

Title III of Part 8 of the WA empowers an arbitration panel to rule whether a party has breached the WA and, if so, what reparation is due. Unlike more limited international dispute settlement procedures seen in other treaties, it gives an arbitration panel on-going oversight of its rulings, including the power to levy lump sums or penalty payments if the UK failed to comply with a ruling (Art.178(1)), and it would give the other party (the EU if the UK were to repudiate the Protocol) the right to suspend the observance of its own obligations—that is to say, effectively to offset the injury by means of self-help (Art.178(2)).

The exercise of a perfectly lawful right to terminate the EU treaties under Art.50 has engendered great opposition. A proposal to repudiate a legally binding treaty in breach of international law would be likely to generate opposition which is even greater, and those who think that such a course of action is a credible option need to consider how realistic is it that they would overcome such opposition.

The difficulties of breaching the Protocol at the international level are increased by Art.4 of the WA, which requires that the provisions of the WA (including the Protocol) and of EU law which are applied to the UK under the WA must be given “direct effect” and must have supremacy over conflicting UK law. It requires in terms that UK courts must have the power “to disapply inconsistent or incompatible domestic provisions”.

The Bill which implements the WA will, in order to implement Art.4, have to contain clauses which produce the same effect as subsections 2(1) and 2(4) of the European Communities Act 1972. It has been well known from the Factortame case onwards that those provisions empower and require UK domestic courts to disapply even Acts of Parliament if they are incompatible with EU law.

In addition, preliminary references to the ECJ will continue across the board under the WA in respect of the transition period and will continue indefinitely in respect of Northern Ireland under the backstop Protocol. Therefore those who contemplate a treaty breach as a way out the Protocol need to factor in a likely scenario in which any legislation purporting to authorise such a breach would be challenged in the courts and possibly referred to the ECJ for a binding ruling, as well as or in the alternative to being submitted to an arbitration panel under Part 8 of the WA. Both the ECJ and the arbitration panel have similar powers to order reparation and lump sums or penalty payments for breach of their rulings. Payment of such sums would be a legal obligation under international law.

(3) Vienna Convention* arguments

Art.60(3)(b) VCLT recognises the right of one party to a bilateral treaty to terminate or suspend its operation if there is a breach by the other party of a provision of the treaty which is a repudiation of the treaty or a “violation of a provision essential to the accomplishment of the object or purpose of the treaty”. It has been suggested that if a replacement agreement for the backstop Protocol cannot be negotiated in a reasonable period, then that would be evidence of a breach by the EU of its obligation to use best endeavours in good faith to negotiate such an agreement.

This argument faces a number of severe problems. First, it would not be enough for the UK to assert that there was such a breach – the UK would have to persuade an arbitration panel to make a finding that there was a breach by the EU, or risk a finding by the panel that the UK was in breach if the UK chose to act unilaterally. In coming to its decision, that panel would be obliged under Art.274 of the WA to refer any questions of EU law to the ECJ for decision and would be bound by the ECJ’s ruling. So, for example, if the EU were to say that alternative arrangements suggested by the UK were unsuitable because they would conflict with EU law or were not compatible with EU single market rules, it would be the ECJ rather than the independent panel which would be the effective decision maker. As we explain below, the obligation of good faith itself could be seen to be a matter of EU law whose meaning requires to be determined by the ECJ.

(The VCLT is probably, as a strictly formal matter, inapplicable to the WA, which is an agreement between the UK and the EU, a non-State entity. However, the VCLT is generally regarded as codifying pre-existing customary international law and hence the same result is likely whether or not the VCLT as such applies.)

Secondly, the obligation to negotiate in good faith rests not just on the EU, but on the EU and UK together. If negotiations break down, it cannot be assumed that one party, the EU, is the one at fault. It could equally be the fault of the UK. An obligation to negotiate in good faith is not the same as an obligation to reach an agreement, and does not require the negotiating party to set aside its own fundamental interests in order to do so. Most likely, if an agreement is not reached, it would be classed as a case where, as contemplated by the Attorney-General in paragraph 13 of his letter of 13 November 2018, “parties, pursuing their best endeavours in good faith, are simply unable to agree a superseding agreement within a reasonable time, or indeed at all”.

Thirdly, the argument that a State or international body has not acted in good faith is inherently a difficult one, “which would require clear and convincing evidence of improper motive and wilful intransigence” (again quoting the Attorney-General at paragraph 29).

A second argument is that the UK has an implied right of withdrawal from the backstop Protocol under Art.56(1)(b) VCLT. This Article however only applies to a treaty which “contains no provision regarding its termination” and does not provide for withdrawal. However, Art.20 of the backstop Protocol could be said to contain an express provision for its termination via the bilateral review mechanism (which gives the EU a veto), and the EU would certainly argue that Art.54 VCLT rather than Art.56 applies to it. Under Art.54, withdrawal may take place only with the consent of the parties, or in accordance with the provisions of the treaty – in this case, via the review mechanism. The EU would also argue that in any event the backstop Protocol is not an instrument which by its nature implies a right of denunciation or withdrawal, in view of their understanding of its relevance to the Irish border and the Belfast Agreement. So the argument that Art.56 VCLT is applicable cannot, in the face of the EU’s likely counter arguments, provide to Parliament any assurance that this could provide a unilateral route out of the backstop.

Thirdly, suggestions have been made that it might be possible for the UK to escape from the backstop in the event of a negotiating deadlock because that would be a “fundamental change of circumstances” under Art.62 VCLT. However, for Art.62 to apply, the change of circumstances has to be “not foreseen by the parties” when the treaty is concluded, and plainly the deadlock problem has been foreseen. Further, it is doubtful that the deadlock problem is a “change of circumstances” at all, since these are normally taken to be changes of circumstances external to the treaty and not just matters which arise from the operation of the agreed treaty terms. Moreover, the EU might well say that the Protocol is an agreement relevant to an international boundary such that, as reflected in Art.62(2)(a) VCLT, the UK may not invoke fundamental change of circumstances as a ground for termination or withdrawal.

In conclusion, none of the Vienna Convention arguments provide a robust or probably even credible alternative to securing changes to the treaty which would secure the UK’s right to escape from the Protocol.

6. Constitutional impact of the Protocol within Northern Ireland

The December 2017 Joint Report of the negotiators included the following paragraph, which complemented the preceding para 49 on alignment of customs and single market rules:

“50. In the absence of agreed solutions, as set out in the previous paragraph, the United Kingdom will ensure that no new regulatory barriers develop between Northern Ireland and the rest of the United Kingdom, unless, consistent with the 1998 Agreement, the Northern Ireland Executive and Assembly agree that distinct arrangements are appropriate for Northern Ireland. In all circumstances, the United Kingdom will continue to ensure the same unfettered access for Northern Ireland’s businesses to the whole of the United Kingdom internal market.”

Under the backstop Protocol, regulatory barriers will be created between Great Britain and Northern Ireland in important respects. Although GB’s external tariffs will be aligned with EU tariffs and there should no tariffs on goods passing between GB and NI, GB and NI will be under different regimes for customs administrative purposes and this means (as pointed out in the Attorney-General’s letter at para 7), customs declarations will be required for goods passing from GB to NI.

Furthermore, the rules of the EU single market on goods and related areas will continue to apply within Northern Ireland. This means the goods from GB which do not comply with EU single market rules, as they stand now or as they are altered by the EU in future, will be prohibited from entering NI and administrative controls will be needed to enforce these restrictions.

We note that if the WA is concluded, both the above restrictions will be imposed by the UK Act of Parliament which implements the WA without the consent of the Northern Ireland Executive or Assembly, either now or in the future.

In addition, the Protocol applies a huge range of EU single market regulations and directives to Northern Ireland which are listed out over 68 pages in Annex 5 (the 68 pages are the list of the titles of these rules, not the rules themselves). These rules are applied to Northern Ireland (but not Great Britain) by Arts.6(2) and 10 of the Protocol.

Broadly speaking these are all the rules of the single market relating to the placing of goods on the market and the processes and procedures they must undergo before being placed on the market, and rules relating to movement of goods (such as rules on live animal exports), but also include connected matters such as EU legislation on intellectual property (Annex 5, para 45), and an eclectic collection of additional legislation such as, for example, Council Regulation (EC) No 2182/2004 of 6 December 2004 concerning medals and tokens similar to euro coins (para 47).

In addition, the EU’s legislation relating to VAT and excise duties will continue to apply in Northern Ireland but not in the rest of the UK (Art.9 and Annex 6). This means for example that Northern Ireland would be restricted from introducing a lower VAT rate to encourage tourism, even if such a rate were brought in elsewhere in the UK.

Under the Protocol, the single market and tax rules must apply in Northern Ireland very much in the same way as EU law now applies in the UK as a Member State. As explained above, Art.4 of the WA requires the UK to legislate to make these provisions of EU law supreme over UK law (including Acts of Parliament) in UK courts. The supervisory powers of the EU Commission and other institutions and the jurisdiction of the ECJ (both in direct actions and in preliminary references) will continue to apply in Northern Ireland, just as if it were still part of an EU Member State: see Protocol Art.14(4).

These provisions mean that the UK Supreme Court will plainly not be supreme when it comes to dealing with these areas of law within Northern Ireland. It will be required to refer any issues of EU law to the ECJ and will be bound by the ECJ’s ruling.

And the Protocol obliges the UK to apply all these legal rules not as they stand today but as they are amended or replaced from time to time by the EU (Art.15(3)). The same applies as regards judgments of the ECJ: the UK will be bound by future judgments of the ECJ when interpreting these EU rules, as well as by judgments given before we leave (Art.15(4)).

These provisions mean that the people of Northern Ireland will be subjected to binding changes in the laws which apply to them, with no possibility of democratic consent either via the Westminster Parliament or via the Northern Ireland Assembly. This imposition of laws on Northern Ireland without the consent of the people of Northern Ireland either to the laws themselves or to the process by which they will be imposed on Northern Ireland represents a clear breach of the principle of consent enshrined in the Belfast Agreement.

Where the EU introduces a new directive or regulation in one of the fields where EU laws apply within NI, the EU will notify the Joint Committee under Art.15(5) of the Protocol. The Joint Committee can then take a decision to add the new piece of legislation to the Protocol and it will then take effect within Northern Ireland.

In theory, the UK could veto the adoption of the new act because decisions of the Joint Committee have to be taken by consensus of both the UK and EU representatives. However, if this is done, the EU then becomes entitled to “take appropriate remedial measures”. This is very similar to the mechanism which applies to the EEA states under the EEA Agreement, and the threat of “remedial measures” by the EU has in practice induced the EEA States to adopt all new EU legislative acts: after a period of resistance, Norway was compelled to abandon its opposition to the Postal Services Directive in 2014.

So, although there is a theoretical right for new EU laws not to apply within Northern Ireland under the Protocol, in practice both Northern Ireland and potentially the UK as a whole would be subject to the threat of retaliatory action by the EU.

An important aspect of our consideration of the proposals to be negotiated with the EU is how far they go to remedy the non-compliance with paragraph 50 of the December 2017 Joint Report and the breaches of the principles of democratic consent under the Protocol. It seems to us that the documents negotiated on 11 March 2019 do nothing to address the issue of the need for democratic consent of the people of Northern Ireland to the EU laws that will apply to them under the Protocol.

Our assessment of the 11 March 2019 documents

On 11th March the Government published a “Political Agreement” with the EU comprising three new documents additional to the draft Withdrawal Agreement and Political Declaration of 26 November 2018: (a) a joint instrument relating to the draft Withdrawal Agreement; (b) a unilateral declaration by the UK in relation to the operation of the Northern Ireland Protocol; and (c) a joint statement supplementing the Political Declaration.

Each is claimed to be intended to provide greater legal certainty that the UK is not bound permanently by the Northern Ireland backstop, nor trapped in a customs union with the EU. None of these documents seeks to address any other concerns with the Withdrawal Agreement and Political Declaration.

Basic problem with the New Documents

We consider that the New Documents are largely focussed on dealing with the wrong alleged problem, which is that of the EU employing ‘bad faith’ in order to trap the UK in the backstop. In seeking to address this alleged problem, the New Documents entirely fail to deal with the real problem, which is that of the UK being indefinitely trapped in the backstop because the EU acting in good faith – or at least not in a way which can credibly be proved to amount to bad faith – fails to offer terms which are acceptable to the UK and the negotiations then break down.

This problem – “good faith deadlock” – is the real risk both in our own view as set out in section 5(3) above and is also the risk identified in the Attorney-General’s letter of 13 November 2018. His letter of 12 March 2019 reaffirms the existence of that same risk in his concluding paragraph 19:

“19. However, the legal risk remains unchanged that if through no such demonstrable failure of either party, but simply because of intractable differences, that situation does arise, the United Kingdom would have, at least while the fundamental circumstances remained the same, no internationally lawful means of exiting the Protocol’s arrangements, save by agreement.”

Again as we point out in section 5(3) above, the EU is entitled to use the negotiating leverage available to it to advance its own interests without that being in bad faith or in breach of best endeavours. The criteria for a review under Art.20 of the Protocol on superseding the backstop are extremely broad and vague, being that any replacement arrangements must “address the unique circumstances on the island of Ireland, maintain the necessary conditions for continued North-South cooperation, avoid a hard border and protect the 1998 Agreement in all its dimensions.” (Art.1(3) of Protocol).

These criteria involve wide questions of political judgement, quite apart from and on top of operational judgements of, for example, whether or not proposed replacement customs procedures would be effective in safeguarding the EU single market from entry of non-conforming or non-tariff bearing goods. This means that a refusal by the EU to agree replacing the backstop could be based on wide grounds involving subjective judgement which it would be quite impossible to demonstrate were being advanced by the EU in bad faith.

The New Documents do not even address this real problem. Instead, they seek to divert attention from that problem by elaborately purporting to strengthen a potential “bad faith” argument.

Legal Status and Effect of the New Documents

(a) Joint instrument relating to the draft Withdrawal Agreement (the “Joint Instrument”)

Purpose and Extent of Joint Instrument

This instrument is a joint document which is intended to interpret the WA and Protocol. It is possible for parties to treaties to enter into supplemental documents which interpret treaties in particular by providing a clearer meaning for treaty provisions which are vague or unclear. However, such interpretative instruments cannot alter or contradict the underlying treaty, or create new substantive provisions . The document explains its interpretative purpose in the last paragraph on page 1 which concludes that “it has legal force and a binding character.” However, it is vital to appreciate that this phrase is preceded by the words “To this effect”, which refer back to the interpretative nature of the document.

Accordingly, it has limited binding character, only to the extent of interpreting and not changing or contradicting the WA or Protocol. The statement made in the Prime Minister’s letter to Members of Parliament of 12 March 2018 (“The Choice Today”) that “We have secured legally binding changes, with comparable legal weight to the Withdrawal Agreement” is manifestly incorrect in two regards. First, neither this instrument nor the other New Documents produce “legally binding changes” to the WA or Protocol; secondly, an interpretative instrument is clearly not “of comparable weight” to the treaty which it interprets.

Provisions of the Joint Instrument

Para 4 records that the parties “consider that, for example, a systematic refusal to take into consideration adverse proposals or interests, would be incompatible with their obligations” of good faith to replace the Protocol. This merely reiterates the position under international law and was fully taken into account in the AG’s advice of 13 November 2018 when he concluded that it was very unlikely that the EU would put itself in breach of its good faith obligations. We consider this point further in the next section.

Para 7 records an agreement to establish a negotiating track “for replacing the customs and regulatory alignment in goods elements of the Protocol with alternative
arrangements”. This does not expand the UK’s rights beyond the existing Political Declaration, which states that such alternative arrangements will be “considered”. This means that the EU can quite lawfully and in good faith “consider” such arrangements and find them wanting. It does not even contain an “in principle” acceptance of such alternative arrangements by the EU. Once we had ratified the WA and Protocol, the legal position would be that the UK would be entirely dependent on the goodwill of the EU to approve any such arrangements and their refusal to approve them would in practice be likely to be unchallengeable by any legal process. It should also be noted from the footnote that such arrangements would not replace Articles 11 onwards of the Protocol, which include State aid control by the Commission (Art.12).

None of the other provisions of the Joint Instrument in our view produces any material change in the impact of the WA or the Protocol. It largely consists of selectively reiterating points which are within the text or are obvious from the text, rather than resolving any ambiguities.

(b) Unilateral declaration by the UK in relation to the operation of the Northern Ireland Protocol (the “Unilateral Declaration”)

Role and Application of Unilateral Declaration (“UD”)

We consider this “Unilateral Declaration” to be entirely worthless. There are, putting it at the lowest, considerable doubts as to whether and when a unilateral statement by one party to a treaty can affect its meaning if that statement is not acknowledged or adopted by the other treaty party: it could be regarded as just “the UK talking to itself”. But even assuming in its favour that this document could in principle produce some legal effect, analysis of its content shows that it does nothing but reiterate the existing position under the WA.

The second paragraph states that “the objective of the Withdrawal Agreement is not to establish a permanent relationship”, but notably precedes that with the words “subject to Article 1(4) of the Protocol”. Article 1(4) of the Protocol contains the following last sentence: “The provisions of this Protocol shall apply unless and until they are superseded, in whole or in part, by a subsequent agreement.” This paragraph of the UD therefore simply re-iterates what is already in Art.1(4) of the Protocol but in a misleading way in which the last sentence, which formed the bedrock of the Attorney General’s advice, is omitted but is replaced with a reference which produces the same legal effect as if that sentence had been starkly re-iterated in the text of the UD. We cannot understand what diplomatic purpose is served by this paragraph, and must regrettably conclude that it has been couched in a way which will mislead an unwary reader.

The third paragraph of the UD purports to record the UK government’s understanding of the position if it is not possible for the parties to conclude an agreement which replaces  the Protocol in whole or in part, “due to a breach of Article 5 by the Union”. Article 5 WA is the obligation of good faith. Therefore this paragraph is limited to circumstances where the EU has acted in bad faith, and has no application to the far more likely circumstance in which the parties simply cannot reach agreement and the UK is locked in indefinitely. As regards the “bad faith” scenario, the paragraph then merely reiterates the remedies available to the UK in such circumstances without expanding them. As we have already pointed out, the UK would need to establish bad faith in front of an arbitral tribunal, which would be a Herculean task rendered more difficult and longer by the probable need for a reference by the arbitrators of points of EU law to the ECJ under Art.174 of the WA. It is strongly arguable that the meaning of “good faith” and “best endeavours” are points of EU law in the context of the WA and Protocol, in which case the ECJ would need to rule on the extent to which those concepts under EU law might differ from their meaning under international law. Even if the UK were successful in establishing bad faith, remedies under the WA disputes process would be limited to partial and “proportionate” suspension of parts of the treaty obligations, and would not amount to an exit from the backstop Protocol. We expand on this point below.

We can see no legal or diplomatic purpose that is served by the inclusion of this Unilateral Declaration. Regrettably we conclude that it has been generated for home consumption and its purpose is to obscure rather than elucidate the true position under the WA and Protocol.

(c) Joint statement supplementing the Political Declaration (the “Joint Statement”)

The Joint Statement is a non-binding statement of intent in connection with the non-
binding Political Declaration.

Possible Registration with UN

It has been suggested that the Joint Statement be registered with the United Nations. The implication appears to be that such a registration will establish that the Joint Statement is a legal binding instrument and not a mere political declaration. Article 102(1) of the UN Charter provides that “[e]very treaty and every international agreement entered into by any Member of the United Nations… shall as soon as possible be registered with the Secretariat and published by it.” However, neither an omission to register an instrument nor the fulfilment of the registration requirement is conclusive as to the character of the instrument as legally binding or otherwise. To determine the character of an instrument, one must refer to its terms. It is the terms, not the formalities of registration (or their
omission), that matter. This point is reflected in international practice, for example in the 1994 judgment of the International Court of Justice in Qatar v. Bahrain, ICJ Rep. 1994 at pp. 121-22 (paras. 27-29); and in UK practice under the Budapest Memorandum concerning Ukraine in 2014.

Ability to Withdraw from the Northern Ireland Backstop

Meaning of Best Endeavours

In the Joint Instrument the parties seek to clarify the meaning of “best endeavours” in their obligation to conclude, by 31 December 2020, an agreement which supersedes the Protocol in whole or part. As noted above, it is unclear whether the term “best endeavours” is already or may become a matter of Union law whose meaning would be determined under the Withdrawal Agreement by the ECJ. If it were so, the effect of the clarifications in the Joint Instrument would need to be seen in that context. Whilst they may be given some form of effect by the ECJ that effect could, in the experience of the UK with that court, be highly uncertain and may not be in accordance with the expectations of a UK reader.

The comfort sought to be provided by the Joint Instrument takes examples often at extremes, which are unlikely to be applicable. For instance, it says “a systematic refusal to take into consideration adverse proposals or interests, would be incompatible with their obligations under Article 2(1) of the Protocol [“best endeavours” to conclude an agreement superseding the Protocol in whole or part] and Article 5 of the Withdrawal Agreement [obligations of “good faith” and to take appropriate steps to fulfil the agreement, without prejudice to the (uncertain) application of Union law.]” (Para 4, Joint Instrument). It is almost inconceivable that the UK would be able to demonstrate a systematic refusal to take into consideration adverse interests incompatible with the parties’ best endeavours obligations, with all the uncertainties that concept imports.

The extreme improbability of an arbitral finding of a breach of good faith is well illustrated by the International Court of Justice case Whaling in the Antarctic (Australia v. Japan). Japan was permitted by the Whaling Convention to hunt whales for “scientific purposes” (Art. VIII), but was hunting them and selling the meat at a fish market. The ICJ would not hold Japan to be acting in bad faith.

There are statements made about the swift commencement of negotiations (para 5), speedy work (para 6), a negotiating track (para 7), a high level conference (para 8) and extraordinary high level conferences (para 9). None of these have much legal import, as paragraph 8 indicates when it states that the UK may request an extension of the transitional period.

The interpretation of “best endeavours” has received little attention from the ECJ, rendering it an uncertain concept that is open to all manner of interpretation.

Protection of UK Territorial Integrity

The Joint Instrument notes it intends to protect the territorial integrity of the UK (para 2), but the provisions of the Protocol entail significant encroachments on UK territorial integrity, with a commercial border across the Irish Sea.

The Protocol covers numerous areas, including the rights of individuals, a single travel area, a single customs territory, technical assessments, registrations,  certificates, approvals and so on, VAT and excise, agriculture and the environment, single electricity market and state aid. The provisions on state aid, for instance, significantly hamper UK competitiveness. They are to be given a dynamic meaning determined from time to time by the ECJ, and state aid is to be controlled either directly by the European Commission (Northern Ireland) or indirectly (Great Britain).

This means the Withdrawal Agreement package comprises a semi-permanent trade agreement, with many concessions already having been made in favour of the EU. Similarly, the EU’s much prized provisions on geographic indicators apply until such time as a free trade agreement is entered into between the UK and EU. Until that time this key point of leverage is conceded to the EU.

The Joint Instrument seeks to provide some comfort that the Protocol cannot be applied indefinitely (para 12). However, this comfort is limited. The assertion is that the good faith etc obligations under Article 5 of the Withdrawal Agreement and the best endeavours obligation under Article 2(1) of the Protocol should be interpreted such that it would be “inconsistent with their obligations” if either party acts “with the objective of applying the Protocol indefinitely”. It is wholly implausible that evidence would come available that the EU would “act” with such a demonstrable objective. If disputed the matter goes to the dispute resolution mechanisms, but as above it is quite possible that the determining law would be said to be Union law and reference is made as to its application to the ECJ. It is also to be noted that the dispute resolution mechanics are to be slowed down by a process of prior consultations with the Joint Committee (para 13). It is only when the arbitration panel makes a ruling and there is “persistent failure by a party to comply” with that ruling, “and thus persistent failure by that party to return to compliance with its obligations under the Withdrawal Agreement” that remedies – and only temporary remedies at that – are to be provided. Ultimately after this process, the UK would have the right to enact a “unilateral, proportionate suspension of its obligations under the Withdrawal Agreement” other than the provisions on the rights of former EU citizens “unless and until the [EU] has taken the necessary measures to comply with the ruling of the arbitration panel.” Such a step may expose the UK to damages claims from commercial parties under international arbitration.

The Unilateral Declaration seeks to add weight to the conclusion that the Withdrawal Agreement as a whole will not be indefinite. However, as set out above, this is a document refers to but does not set out Article 1(4) of the Protocol, which states that “the provisions of this Protocol shall apply unless and until they are superseded, in whole or in part, by a subsequent agreement.” The Unilateral Declaration therefore has no impact in respect of the principal matter at hand, that is
the permanency of application of the Protocol for Northern Ireland.

The Unilateral Declaration then seeks to record the UK’s understanding of the best endeavours obligation in Article 2(1) of the Protocol – if it is “not possible” for the parties to conclude an agreement superseding the Protocol in whole or in part. If but only if that situation was brought about by bad faith on the part of the EU, the UK states its belief that it can instigate measures “that could ultimately lead to disapplication of obligations under the Protocol, in accordance with” Part 6 Title III of the Withdrawal Agreement or Article 20 of the Protocol. However:

  • The subsequent agreement could only replace the Protocol in part and still satisfy Art.2
  • There is no time period for the disapplication
  • The UK only states that “obligations” under the Protocol will be disapplied – not all obligations, appearing to affirm that some of the Protocol could endure indefinitely
  • The UK reaffirms (unnecessarily, if the whole Protocol were to fall away) its new obligations to the EU, entered into pursuant to the Withdrawal Agreement, to “uphold its obligations under the 1998 Agreement in all its dimensions and under all circumstances and to avoid a hard border on the island or Ireland”. The 1998 Agreement is therefore then buttressed, for ever, by obligations to the EU, potentially including obligations to persons across the UK, EU and beyond pursuant to Article 4 of the Withdrawal Agreement. This is inappropriate as the scope of the obligations under the 1998 Agreement are relevant only to the UK and the Republic of Ireland.
  • When the declaration states that Article 1(4) of the Protocol makes clear a permanent relationship under the Protocol is not the parties’ intention, whilst that is true for the first sentence of Article 1(4), as already discussed it is far from true for the third sentence of that same Article. This states “[t]he provisions of this Protocol shall apply unless and until they are superseded, in whole or in part, by subsequent agreement.” Quite apart from the fact that such an inconsistency illustrates the dangerous paucity of drafting of the Withdrawal Agreement, such that the UK is not in a position to be certain what it has agreed to, the Attorney General himself placed weight on this provision in determining that the backstop was permanent in his letter to the Prime Minister of 13 November 2018.

The drafting of this supposed clarification hardly gives confidence as to the conviction as to the outcome ostensibly desired.

Political Declaration

The Joint Statement seeks to reassert the link between the Withdrawal Agreement and the Political Declaration (para 2). It states a shared ambition to have a future relationship in place by the end of the transition period (para 3). Notably, it does not indicate what that future relationship might be. Many in the UK regard it as a free trade agreement with collaboration on security and other such matters. However, there are aspects of the Political Declaration which are seriously damaging for future UK interests and where therefore an enhanced linkage between the WA and the PD would damage UK interests. Particular points of concern are:

Para 23 on tariffs. This is incompatible with the future conclusion of a conventional Canada-style Free Trade Agreement between the UK and the EU, because of its reference to a single customs territory and to the absence of origin controls. The EU could use this paragraph as a lever to deny the UK the right to negotiate an FTA to replace the backstop.

Para 124 on disputes and enforcement. This states that the long term agreement should contain arrangements for disputes and enforcement based on the WA; hence the role of the ECJ in Art.174 of the WA would become a permanent feature of the future relationship between the UK and the EU. Because the UK has sold the pass on this issue in the PD, the EU could insist on the UK having to succumb to this perpetual ECJ jurisdiction as part of the price of being let out of the Protocol. Indeed, the EU would undoubtedly argue that the UK is in breach of its own “best endeavours in good faith” obligation if it fails to submit to such a clause.

Para 75 on fishing. This states that the parties “should establish a new fisheries agreement on, inter alia, access to waters and quota shares.” The EU could insist on the UK succumbing to what is in substance the continuation of the Common Fisheries Policy, failing which the EU would be entitled to refuse to let the UK out of the backstop Protocol.

The remainder of the Joint Statement is a statement of warm intent, which is not justiciable or binding. Most notably this includes the self-described commitment to work “at speed” on a subsequent agreement that establishes by 31 December 2020 alternative arrangements to the Northern Ireland backstop. Various further aspirations as to how this work will proceed are then set out in paragraph 6, but these are just that – and non-binding.

Annex: Summary of Key Sovereignty Issues with the Withdrawal Agreement and Political Declaration

Legal Status

The Agreement, once entered into, cannot be exited except by subsequent agreement with the EU. Although Parliament cannot bind itself within the UK’s territory, the UK can bind itself internationally by Treaty, ceding governance to the Treaty’s provisions and those empowered to interpret and apply them – in many instances the ECJ.

Payment

The Agreement provides for an uncapped and uncertain payment liability for the UK to contribute to EU liabilities, determined ultimately by the ECJ.

Citizens Rights

Ex-EU citizens in the UK continue to have EU rights, interpreted by the ECJ. These may diverge from the UK’s future choices of entitlements for all UK citizens, which would create two classes of UK citizens.

The Agreement gives numerous direct entitlements to citizens, corporates and others across the EU, which they can claim under the wording of the Agreement, as interpreted by the ECJ through the EU doctrine of direct effect (in Article 4). The precise extent and content of this commitment is extremely unclear and is in the hands of the ECJ. It overrides any conflicting UK legislation and is to be implemented directly into UK law and enforced by UK administrative bodies and Courts.

Transitional Period

There is a transitional period, extendable until an unspecified date, under which the EU’s laws apply but without governance rights for the UK. There is no provision adjusting eg State aid provisions so as clearly to allow the UK to protect its service industries from a potential no-deal outcome after that period. By contrast, some member states appear already to believe they can protect their industries from such a no deal outcome.

The Backstop

The Agreement provides for a rudimentary trade deal on goods, leaving Northern Ireland in elements of the single market and customs union unless agreed otherwise, and applying some of these provisions to mainland Great Britain. There is no binding trade deal on the services sector, which represents 80% of the economy.

Unless a replacement trade deal is agreed:

  1. The Northern Ireland single market and customs union laws in goods, with partial application to mainland Great Britain, will apply indefinitely. Certain checks will be required across the Irish Sea, eg customs declarations for GB goods going to NI. Goods that do not meet EU requirements cannot enter NI. NI will be economically part of the EU’s single market in goods.
  2. EU State aid law will apply in the UK, as interpreted by the ECJ from time to time and administered directly (for NI) or indirectly (for GB) by the European Commission. This already governs UK tax policy and could prevent deregulation. It could be expanded further by the ECJ.
  3. Existing EU laws on social and environmental policy will apply, regardless of any changes in circumstances or subsequent political wishes.
  4. The EU’s much-prized protections on geographical indicators – ie product descriptions for EU goods such as champagne etc – continue to apply.

There is no enforceable requirement for the EU to agree a reasonable trade deal replacing these provisions.

Who Decides What The Agreement Means?

The ECJ is deferred to in interpreting many aspects of the Withdrawal Agreement, directly or indirectly.

The drafting is extremely unclear in many areas, leading to uncertainty and unpredictability as to what the UK is agreeing to, and allowing for significant ECJ discretion. This is inconsistent with normal Treaty practice where an independent arbitral body holds the parties to their word.

The ECJ is a politicised court which interprets and makes law according to perceived EU purpose underpinning the provisions. Its judgments can be highly unpredictable. For instance it interpreted the original “free movement of workers” as free movement of all people. It has also marginalised agreed legal text, introduced in 1993 partly at the behest of the UK, intended to devolve decision-making back to the member states from the EU (through the doctrine of
“subsidiarity”).

The 75 Conservative MPs who opposed the Prime Minister’s deal

Mostly ERG-aligned Leavers – but roughly ten former Remainers, a core of whom now back a second referendum.

The ERG has roughly 80 supporters.  Despite some defections around the edges, this looks at first glance like a pretty unified ERG vote – since some of the 39 Conservative “defectors” are not associated with the group.

But please note that at least eleven of the rebels were Remainers, not Leavers: Guto Bebb, Damian Collins, Charlie Elphicke, Michael Fallon, Justine Greening, Dominic Grieve, Sam Gyimah, Jo Johnson, Phillip Lee, Grant Shapps and Shailesh Vara.  Bebb, Collins, Greening, Grieve, Gyimah and Johnson Lee are Second Referendum supporters.

We have used Mark Harper’s photo for this piece because the former Chief Whip is an important centre-right bellweather.  He set out his reasoning earlier today.

  • Adam Afriyie
  • Lucy Allan
  • Richard Bacon
  • Steve Baker
  • John Baron
  • Guto Bebb
  • Crispin Blunt
  • Peter Bone
  • Suella Braverman
  • Andrew Bridgen

 

  • Conor Burns
  • William Cash
  • Rehman Chishti
  • Christopher Chope
  • Simon Clarke
  • Damian Collins
  • Robert Courts
  • Richard Drax
  • James Duddridge
  • Iain Duncan Smith

 

  • Charlie Elphicke
  • Michael Fabricant
  • Sir Michael Fallon
  • Mark Francois
  • Marcus Fysh
  • James Gray
  • Chris Green
  • Justine Greening
  • Dominic Grieve
  • Sam Gyimah

 

  • Mark Harper
  • Gordon Henderson
  • Philip Hollobone
  • Adam Holloway
  • Eddie Hughes
  • Ranil Jayawardena
  • Bernard Jenkin
  • Andrea Jenkyns
  • Boris Johnson
  • Gareth Johnson

 

  • Jo Johnson
  • David Jones
  • Daniel Kawczynski
  • Pauline Latham
  • Phillip Lee
  • Andrew Lewer
  • Julian Lewis
  • Ian Liddell-Grainger
  • Julia Lopez
  • Jonathan Lord

 

  • Craig Mackinlay
  • Anne Main
  • Esther McVey
  • Anne Marie Morris
  • Sheryll Murray
  • Priti Patel
  • Owen Paterson
  • Tom Pursglove
  • Dominic Raab
  • John Redwood

 

  • Jacob Rees-Mogg
  • Laurence Robertson
  • Andrew Rosindell
  • Lee Rowley
  • Grant Shapps
  • Henry Smith
  • Royston Smith
  • Bob Stewart
  • Ross Thomson
  • Michael Tomlinson

 

  • Craig Tracey
  • Anne-Marie Trevelyan
  • Shailesh Vara
  • Theresa Villiers
  • John Whittingdale

– – –

 

And it’s a thumbs-down for the revised deal from Cash, Raab and the committee of eight lawyers. No surprises there.

Which presumably means, since Dodds is one of the eight, that the DUP takes the same view.

We wrote of the eight-person panel when news of it was first announced that it had three striking features.  First, at least two of its members, Bill Cash and Martin Howe, are hostile to the Brexit deal on grounds wider than the backstop.  Second, that it is primarily a panel of politicians, not lawyers.  And, third, that the DUP appeared to be bound to it, since Nigel Dodds is a member.

The panel has duly decided that ‘yesterday’s documents considered individually and collectively do not deliver “legally binding changes” to the WA or to the Protocol” and that “in the light of our own legal analysis and others we do not recommend accepting the Government’s motion today”.  No surprises there.

So Dodds and therefore the DUP are apparently bound into the panel’s view.  Since a slice of Conservative MPs will take their lead, rightly or wrongly, from the Northern Ireland party, the revised deal will presumably fail to pass later today.  It’s worth noting too that the panel contains a future Conservative leadership contender: Dominic Raab.

“Making those dreams come true: that should be our calling as Conservatives.” Raab’s speech to Onward – full text

“People need the opportunity to benefit from their ability, their determination, and their hard-work.”

On Monday 11 March, Rt Hon Dominic Raab MP gave a speech for Onward on Unleashing the Great British Underdog: A vision for the Opportunity Society.

Good morning. I’d like to thank Havas Media for hosting us, and Will Tanner and the team at Onward for the vision, ideas and optimism they are bringing to our political debate.

Isn’t it great to be talking about something other than Brexit?

When I was appointed Brexit Secretary, some of you might’ve thought it was my dream job. I get that.
But that’s not my dream subject.

Brexit’s a big deal, and it dominates debate. But I got into politics to talk about something else. It’s something I feel very strongly about. And that’s what I want to talk you about today.

It’s hard get it down to a soundbite. You can say: ‘social mobility’ but that doesn’t really capture the full meaning, emotionally…morally … of encouraging and supporting young people to rise up, realise their potential, and fulfil their dreams.

I got into politics because I love this country, and I want every child… every child… to get their chance to make the best of their potential, and to be a success in life.

My father was a refugee to Britain. He arrived aged 6 with no English… but he made the best of his abilities and became a food marketing manager at M&S. There he met a clothes buyer, my Mum. They married and had my sister and me. This country gave my father a second chance. Maybe, that’s why he was one of the proudest Brits I knew.

Sadly, he died when I was 12. Just before he passed away, he did something that changed my life.

We lived near a great grammar school, Dr Challoners in Amersham, and I applied to go there.

There were three 12+ tests. I passed two … but on the day of the third, my sister was in a bad car crash that put her in hospital for several months. I went to school that day, and I sat the exam anyway. But I was thinking about my sister. I did so badly in the test that it brought my average down and I didn’t get in.

When my Dad found out what had happened, he appealed. He asked the school to take the average from the first two papers, and the appeal was successful.

Now, thankfully, my sister recovered. Sadly, just a month before my first day at Dr Challoners, my Dad passed away. But I can still remember… how proud he was that I was getting ready to go to school there.

His effort was worth it. That school changed his son’s life. I could not have had a better education, and not just in academic terms. The whole ethos of the school prepared the kids to fulfil their potential – and not just in work but in life.”

Building a Fairer Society

“I guess it’s natural that my family history has coloured my outlook, and my politics. My Dad was Jewish, Mum raised us Church of England and I married a Catholic.

I never expected that we’d still see the kind of racism my Dad suffered in twenty-first century Britain, that we’re now seeing in the anti-semitism plaguing the Labour party under Jeremy Corbyn’s leadership. And I know there are many Labour MPs who are as disgusted as I am about that.

The first principle of a fair society is that is doesn’t discriminate on grounds of race, religion, gender or sexuality. That’s essential, but it’s not enough.

I want to see all our kids, everywhere, have the chance that my Dad had, that I had, to make a success of themselves – based on their abilities and hard-graft.

My experience taught me that no one-off meritocratic process will ever be perfect, so we need to build layer upon layer of opportunity, I’m talking about a ‘second chance society’, for those who miss out on their shot, whether that’s because of bad luck, a bad day, or they just happen to blossom later in life. We’ve got to make sure that our young people get a genuine opportunity to fulfil their potential.

But that’s not what’s happening in Britain today. Think about this: social mobility has actually declined in this country since the Second World War. And it’s not getting any better. It is one of the few things the Left and Right agree on in British politics … albeit with different explanations for the problem and what we should do about it.

We know the socialist or egalitarian answer, which is equality of outcome rather than equality of opportunity. But I don’t think that’s right.

People need the opportunity to benefit from their ability, their determination, and their hard-work.

If you make policies designed to deliver a society with equality of outcome… for every individual, regardless of how much they put in, it would drain our economic competitiveness, because you take away incentives for people to strive. And that kills aspiration.

So we’ve got a two-part challenge: one – we need to build a fairer society that strengthens the enterprise economy, rather than weakens it.

And two, we’ve got to make our country fairer… by expanding opportunity, not suffocating it as many on the Left would have us do.”

Build on what we got right – the Gove reforms

“But let’s just take a moment to recognise what we’ve been getting right.

The Gove revolution with its focus on phonics, numeracy and literacy, academic rigour, and greater freedom for head-teachers to pioneer new ways of running schools has been a huge success.

I know from my own experience, with two boys 4 and 6, how important phonics is. I’ve read to both boys every morning since they were six weeks old. And I’ve loved watching how phonics equipped them to feed their own curiosity, from the sun and stars to stories like the Gruffalo.

For us as parents too, we get a precious opportunity to bond with our kids, away from tablets and tv screens.

Because of Michael Gove’s reforms, we’ve seen literacy standards rise by 40% since 2012, when we introduced phonics. More broadly, we have 1.9 million more children in schools deemed good or outstanding.

Now, I’m not saying academic scores are the only thing that matter. Far from it. We need to be looking at our children in a much more rounded way. And that includes appreciating the value of sport, music, drama and art in building up self-confidence and self-esteem … particularly for young people from tough neighbourhoods, or difficult family circumstances.

I remember when my Dad died, I went up the hill to grammar school in Amersham, and down the hill on my BMX down to Slough Karate Club. I trained there for 20 years, made 3rd Dan, won two British Southern Region titles, and spent a year on the British squad.

Looking back, I understand it was about much more than the sport. There were strong role models, a cracking camaraderie, and an ethos of respect.

After the earthquake my family had been through, it certainly helped restore my confidence, and that hugely benefited my attitude to school and life.

There are lots of talented kids out there for whom sport and other non-academic pursuits are the catalyst to the self-belief they need … to turn the flicker of ambition into the flame of success.

At the same time, I know that some of the Conservative school reforms have been unpopular with teachers.
One concern I’m sympathetic to… is the charge of constant revolution. We need to allow the changes in curriculum, the introduction of the EBACC, and the new reforms to Ofsted inspections… to bed down, and give our teachers time, and the space to implement them.

If there’s one change I’d like to see, having sat on the Education Select Committee between 2013 and 2014, it’s to pay teachers more… for teaching in our tougher schools. That would make it an important part of career progression for the best in the profession. And think about it: what better way to give children from the hardest backgrounds exposure to the very best teachers?

What’s vital…is to allow these reforms the time and space to drive up standards across the board. Let’s not forget that improving standards of learning …across the whole state education system is the most important building block for improving social mobility.”

Widen Choice, Unleash the Aspirational Underdog

“But what we also know from Free Schools and Academies is that… one size doesn’t fit all.

We need to challenge our own assumptions and keep looking for new ways to set up ladders of opportunity for the bright kid of modest means.

Of course, you all know…everyone in this room with children knows… each one is different, unique, and they’re all the more precious for it. They have different aptitudes and passions.

One of the risks I’m conscious of… and try to guard against, as a Dad, is limiting my children’s horizons by my own experiences. I certainly don’t hanker for them to become politicians.

But, there’s a broader social challenge here. We’ve created a culture in this country that prizes academic attainment above all else, funnelling more and more young people through university regardless of the benefits or the costs.

And, anyway, when did we make it a condition of being a success in life that you had to go to university? Neither of my parents did, but I always admired the success they made of their lives. There’s an in-built snobbery that we have acquired in this country … and it is holding our young people back.

We need more ladders of opportunity for the bright, but not necessarily bookish kids who want to reach their full potential.

Let me give you an example: Tony Blair introduced Young Apprenticeships for 14 to 16 year olds, but they started to be phased out under Gordon Brown and then the Coalition. I think that was a mistake. 14 to 16 is the age when truancy rates spike, and if you lose those children from the classroom, it’s hard to get them back.

Young Apprenticeships were hugely successful. The kids who’d been falling behind the most, before they joined the scheme, gained the most from it. Instead of shutting down vocational opportunities, let’s revive Young Apprenticeships, at least as a choice, for this age group.

But, we can’t stop there. If we’re serious about offering our children a credible vocational alternative that leads to a good job, then we need to see it through consistently, and that means beyond school.

We should build on T Levels, by expanding and promoting degree apprenticeships, like the flagship one offered by Jaguar Land Rover partnered with Warwick University.

Degree Apprenticeships allow young people to combine working with acquiring a vocational degree, but without the fifty-thousand pounds of debt the average student racks up after a normal degree.

That’s one great scheme… but how can we stick rocket boosters under Degree Apprenticeships, to scale them up and expand access?

To start with, Degree Apprenticeships should be given greater access to the Apprenticeship Levy. They should be mandated as a top priority for the Institute for Apprenticeships. And they should be fully integrated as part of the UCAS application process for every young person. That would give them the same status as normal degrees, and offer a genuine high-quality technical alternative for the next generation of school leavers.

Let’s offer young people a choice with all of the opportunity university has to offer … but none of the debt.

That’s just one area ripe for reform. There are plenty of other areas where we must smash through the glass ceilings holding our children back.

I remember my first day as a trainee at Linklaters, the law firm. A partner said to me: ‘You can forget all that stuff you studied, it won’t help you in the real world. Your training starts now’.

I got a terrific training there, and I understood what he meant. I just couldn’t help thinking it was a hell of a waste of money … not to mention 5 years studying.
With tuition fees at their level today, that’s no joke for aspiring young lawyers.

So, since 2010, I’ve been championing non-graduate routes to becoming a solicitor. And they’ve flourished. Now we need to expand those non-graduate routes into other professions which are starting to catch on, like accountancy.

Likewise, we need to encourage young people, who’ve got some entrepreneurial spirit, to think about setting up a business. A few years back, I was involved in a review by the Royal Society of Arts into attitudes to setting up a business. It found that many parents and teachers didn’t take the idea seriously… they treated it like a gap year before university. That’s such a shame, when you think of the self-made entrepreneurs this country has turned out, from Alan Sugar to Tony Pidgley in my constituency.

We can’t lose that. We’ve got to rekindle that buccaneering entrepreneurial spirit for the next generation. And there are some brilliant initiatives out there. Take ‘Entrepreneur First’. Started by Angel Investors, it takes talented students, but there aren’t any formal academic requirements. They spend the first 6 months developing business ideas with mentoring and networking. Then, they spend the second 6 months turning their bright idea into a start-up business, with Entrepreneur First providing office space, living costs and seed capital.

It’s a terrific scheme. Let’s scale it up, so the next generation of budding entrepreneurs get their chance to start their own business from scratch.

The government could boost Entrepreneur First by allowing participants to take out the maintenance loan element of the student loan for the year, to promote access for poorer young people.

Next, we should consider increasing income tax relief for investors through the Enterprise Investment Scheme from 30% to 50% to attract more entrepreneurs to back it with their time and know-how.

The beauty of Entrepreneur First is that it boosts the enterprise economy and the opportunity society.

Let’s encourage our young people to find that great idea. To believe they can turn it into a great business. To believe there’s no limit to what they can achieve.”

Widen Access to some of the Best Schools

“And, finally, what about our brilliant independent school sector? Rather than bashing or abolishing, as some on the Left argue for, I want to open it up so more kids from poorer backgrounds actually benefit.

I’ve been arguing since 2012 that the government should adopt the Sutton Trust’s Open Access scheme.

At no extra cost to the taxpayer, that initiative would open up 90 leading independent schools to entry on meritocratic basis, with means-tested fee support.

When Open Access was piloted at Belvedere School in Liverpool, 70% of pupils received fee support, and a third were eligible for free school meals.

Ultimately, I’d love to see the Sutton Trust scheme as a first step to opening up all independent schools on a means-tested and meritocratic basis.

Of course, the Labour party will scream elitism. But many of the Labour frontbench benefited from a grammar school or private school, or sent their kids to one.

We shouldn’t let the Labour party’s hypocrisy stop us from expanding opportunities, giving those of modest means their chance to go to some of the best schools.

Just think what it would mean for the children growing up in the urban sink estate… or the rural backwater, to get the opportunity to go to schools their parents never dreamed they could attend.

Creating those opportunities, making those dreams come true: that should be our calling as Conservatives.”

Conclusion

“So, as I said to you at the start, I was lucky enough to get my shot in life. But today… too many young people don’t get theirs.

I want to see a radical program of Conservative reform … that’s the political passion I was talking about. We’ve got to break through the glass ceilings, raise more ladders of opportunity for every child, everywhere.

I want us to build an opportunity society… that empowers the aspirational underdog… to reach his or her full potential, however they started out in life.

Opportunity. That should be our lodestar. And that should be the driving mission for the Conservatives in post-Brexit Britain.”

WATCH: Raab – “None of the challenges and problems we have now get any better if we extend”

The former Brexit Secretary doesn’t see how a deal rejected by record margins passes on the second try without substantial changes.

The Brexiteer group of eight: lawyers or politicians first?

Our answer is: the latter. And we would caution against presuming that they are predisposed to support a revised deal.

There are three curiousities about the group of eight pro-Brexit lawyers who will pass judgement on any revised deal.

First, while seven of them are Conservatives (of which six are MPs), one is a member of the DUP – Nigel Dodds.  The Tories have an common interest, as well as their party membership: they are all aligned to one degree or another with the ERG.  Meanwhile, Dodds is not only a DUP but the party’s deputy leader.  The ERG and the DUP have very good relations, but ultimately different interests.  And Dodds will have a responsibility to his party’s view if or when a revised deal is agreed.

Second, at least two of the group are opposed to the deal as it stands on wider grounds than the backstop.  Bill Cash has broad objections – for example, to Article 4 of the Withdrawal Agreement.  On its basis alone, he told the Commons recently, “one should not vote for the withdrawal agreement”.    Martin Howe’s take is similar.  David Jones is at the flintier end of the ERG spectrum.  With so much opposition to the deal in the group – and resistance that spreads wider than the backstop – how can it collectively approve any backstop revision?

Finally, Howe, who writes on this site today, has a long history of engagement with EU law.  (His chambers says that his practice “encompasses intellectual property and extends into wider fields of EU law and commercial and public law”.)  Cash has been immersed in EU law as an MP for over 30 years.  Raab had some engagement with EU law as a junior solicitor and is of course a former Brexit Secretary.  Now let us turn to the remaining five members of the group of eight.

  • Jones is a solicitor who was senior partner of a practice (David Jones & Company) based in North Wales.
  • Suella Braverman is a barrister who specialised in planning law.
  • Robert Courts’ chambers says that he has “a general common law practice, principally in the fields of criminal and personal especially Animal Welfare, Aviation, Police and Proceeds of Crime Law”.
  • Michael Tomlinson’s is a member of the same chambers, which advertises his work in “contract, landlord and tenant, personal injury, property and chancery, public law & regulatory law”.
  • Dodds worked as a barrister in Northern Ireland. (It may be worth noting that he “won the university scholarship, McMahan studentship and Winfield Prize for Law”.

In other words, perhaps two of the eight can claim to have serious engagement with constitutional law – Howe and Cash.  But the latter is primarily a politician.  As are the remaining six: Jones, for example, may not have been a senior lawyer but he was certainly a senior politician – at one time a member of that most senior political body of all, the Cabinet.

All in all, this group of eight is constituted to take what will primarily be a political rather than a legal decision.  The same is true of Geoffrey Cox – who his chambers describes as appearing “in the High Court in civil fraud and asset recovery, commercial, human rights, defamation, and judicial review actions”.

Tomlinson gave a skilful interview to yesterday’s Sunday Times in which he succeeded in not closing down any options.  But the combination of Howe’s, Cash’s and Jones’ presence in the group of eight, and the absence of any visible breakthrough in the negotiations, should caution one against presuming that it is predisposed to sign up to any revised deal that the Government brings back.  Especially in the light of claims today about the state of the negotiation.

Our survey. Next Tory leader – Johnson is top again. Here’s why he’s in pole position with minimum effort.

It is striking how little the former Foreign Secretary is doing to maintain his lead. Then again, he scarcely needs to stir – for the moment.

Last month, Boris Johnson led our Next Tory Leader question with 26 per cent of the vote.  This month, he is top with 24 per cent.  Dominic Raab was second with 12 per cent; now he is second with 13 per cent.  Michael Gove was third with nine per cent; this month, he is third with ten per cent.  The mass of potential candidates on single figures ratings continues.  These changes are footling.

It is striking how little the former Foreign Secretary is doing to maintain his lead.  This morning sees his weekly outing in the Daily Telegraph, in which he has pop at the apparently forthcoming Bloody Sunday prosecutions.  Most weeks, it rages against the Government over Brexit.

Otherwise, he is, by the standard of such a master of self-projection, withdrawn.  Although he is not absent from Brexit-related proceedings in the Commons – he quizzed the Prime Minister during her statement of February 12, for example – he is not at the forefront of them either, like say Yvette Cooper or Bill Cash.  For example, he didn’t participate in last week’s debate.

Nor does he appear on BBC Question Time or Any Questions.  Indeed, he doesn’t seem to like being on a panel, and expose himself to the scrutiny of other members, or the chairman, or the audience.  (Though he performed robustly in during the EU referendum TV debates.)  His preferred forum is the big set-piece speech, like that he delivered at last year’s Party Conference ConservativeHome fringe event.

So what is going on?  This site’s tentative answer is that the main obstacle to Johnson’s ambitions is not the voters.  Nor (clearly) is it Party members.  It is Conservative MPs, who may not forward his name to those members for the final stage of a leadership election.  Which is why his priority at present is wooing them.

In the meantime, activists’ confidence in the coherence of the Government is low, and this lowers the ratings of potential rivals.  So the former Foreign Secretary is able to sit it out, enjoying his regular double digit lead in this survey, with other polls also showing him in the lead.

The Daily Telegraph is many party members’ broadsheet of choice, so that weekly column is enough to remind them he’s still alive and kicking.  His main opponent is not hostile MPs or disillusioned Remain voters or Cabinet members.  It is the passing of time – and the prospect of someone else, someone new emerging who is less divisive, less scarred.

Eustice’s deep consistency. The ConservativeHome article that presaged his resignation.

The logic of his position was that the UK was leaving by March 29th. It hasn’t changed. The Government’s has. So he’s gone.

The flow of submissions to ConservativeHome critical of the Government’s Brexit policy is greater than that of those supportive.  This was perhaps especially so in the aftermath of the Chequers plan – which this site did not support.  So by way of balance we asked Downing Street for an article by a Government Minister backing the proposals.  There was a pause.  And then, towards the end of the month, a piece turned up by George Eustice.

Some articles by Government Ministers turn out to be boilerplate.  This was different.  The then Agriculture Minister had obviously written the piece himself rather than simply approved it.  It set out his background as a former UKIP candidate, his later support for fundamental negotiation as a Conservative, his parting of the ways with David Cameron, for whom he was once press spokesman, over the EU referendum vote.

At the heart of his argument for Chequers was the following: “Parliament has already passed into law the EU Withdrawal Act which will repeal the 1972 European Communities Act and end the supremacy of EU law in March next year. In the final analysis, we do not need permission from the EU to leave. The referendum result was a decision to leave, not a negotiation to leave. All that we are really negotiating at the moment are the terms of a future partnership, so the baseline for these negotiations is completely different.”

Now you may or may not agree with his view but, in the light of his resignation today, Eustice’s words take on a new significance.  His take hasn’t changed.  In his letter to Theresa May, he explains that the reason for his quitting is not her proposed deal, but a possible extension – and the Government’s connivance in it.  ” I fear that developments this week will lead to a sequence of events culminating in the EU dictating the terms of any extension requested and the final humiliation of our country,” he writes.

Eustice thus joins David Davis, Boris Johnson, Esther McVey, Dominic Raab, Guto Bebb, Suella Braverman, Sam Gyimah, Jo Johnson, Shailesh Vara, Conor Burns, Robert Courts, Chris Green, Ranil Jaywardena, Scott Mann, Will Quince and Ann-Marie Trevelyan in having resigned from the Government.  He thus becomes on our count the 17th person to do so, and is very much at the senior end, being a fully-fledged Minister of State.

All bar three of those who have quit tilt towards a harder rather than a softer Brexit: indeed, the exceptions, Bebb, Gyimah and Johnson all favour a second referendum.  Given the propensity of some pro-Remain and Soft Brexit Ministers to act otherwise, and publicly defy the policy of the Government to which they are formally committed, Eustice’s resignation is likely to tilt it in a pro-Soft Brexit and Remain direction.  He may not be the last pro-Brexit Minister to walk over the next few days.

For what it’s worth, he was also due to feature in one of this site’s planned but unpublished articles, provisionally titled “The Cabinet of people who know what they’re talking about”.  This is a way saying that he knows his Agriculture brief backwards and, were he not a white middle-aged married man, it is not at all impossible to have imagined him stepping up into the Environment Secretary job when Andrea Leadsom was reshuffled out of it.

There is sometimes more or less to a resignation than meets the eye but, when one looks back to Eustice’s article of last August, one can see a deep consistency in his decision to go.  His view hasn’t changed.  The Government’s approach has.  So he has decided to quit – even though, as irony would have it, it is possible to imagine a revised Brexit deal clearing the Commons before mid-March.  In which case there will be no extension and he will need not have gone.   Of the 16 previous resignations we can’t think of one more honourable.

Mark Francois: The voluntary party must now save us from ourselves

I welcome the suggestion that local Associations should follow the lead that the National Convention took last weekend.

Mark Francois is a former Defence Minister, and is MP for Rayleigh and Wickford.

Last weekend, the National Conservative Convention, sometimes described as the “Parliament” of the Voluntary Conservative Party, passed the following motion, by an emphatic majority of five to one.

“The National Convention supports the commitments the Prime Minister has made to the country to honour the European Union referendum result of 2016, that having triggered Article 50 we will leave the European Union on the 29 March 2019.

Another Referendum, a delay beyond the European elections, taking ‘no deal’ off the table or not leaving at all would betray the 2016 People’s Vote and damage democracy and our party for a generation.”

It is unusual for the National Convention to debate any substantive motion at all, so this was an event of significance for the Conservative Party as a whole.  Moreover, the voluntary party is arguably its heart and soul. If Conservative MPs are the Party’s “Officer Corps”, then the voluntary party, the Association Officers, councillors, activists and rank and file members are the Party’s “poor bloody infantry.”

They go out in all weathers, sometimes accompanied by their Conservative MP (where they have one) knocking on doors, delivering leaflets in the pouring rain, and engaging with the electorate, in good times and in bad. When the Party is doing well nationally, they tend to do well in local elections as well. When the reverse is true, they are the first to brutally cop it each first Thursday in May.

As an activist and councillor under John Major in the mid-1990s,  I well remember having doors slammed in my face, even in affluent areas. I also clearly recall hard-working, dedicated, local councillors being wiped out each May, simply because of the unpopularity of the party nationally.

In the 1993 County Council elections for instance, we lost every single county in the whole of England, save Buckinghamshire. A few more years of Conservative voters abstaining in their millions during the mid-90s led to our local government base being severely eroded. This was closely followed by one of the worst defeats in our Party’s entire history in 1997, which ushered in the Blair/Brown era. I believe we are now facing much the same fate this May if we carry on as we are.

The People versus the Establishment

However, the situation is even worse than that. The Government’s EU Policy is being dictated, at least day-to-day, by a small coterie of highly pro-EU inclined civil servants, led by the Prime Minister’s Chief Negotiator, Ollie Robbins, who have never really accepted the result of the 2016 referendum and who clearly believe that the British public, having made an obviously thick/bigoted/racist mistake, must now be saved, by their “betters”, from themselves.

Of course these civil servants care not a fig for the thousands of Conservative council candidates who could be wiped out in May; they are meant to be politically neutral after all. Amidst this burning desire effectively to keep Britain in the EU at all costs, they are aided and abetted by a number of senior cabinet Ministers, from Phillip Hammond through to Amber Rudd and a number of equally fanatical junior Ministers, who constantly threaten to resign (but never quite summon up the moral courage to actually do so), plus a relatively small number of ardent Europhile backbenchers, three of whom have recently moved on to pastures new.

Personally, I believe that the division in our country is now morphing, from “Leave” versus “Remain” to “The People” versus “The Establishment.” Put simply, the People voted to Leave and the Establishment, from the senior civil service and some traditional elements of the media, with many fellow travellers in the Commons and the Lords, now formally including the Labour Front bench as well, are doing absolutely everything in their power to stop them from leaving.

This is all despite the expressed wishes of 17.4 million UK citizens – the largest vote for any proposition in British history. The motion above is an expression of the growing anger of the rank and file at this trend but, as the sell-out continues and becomes ever more obvious, I believe that the public will grow increasingly angry too.

The collapse of collective responsibility within the Government

Meanwhile, in Parliament, the Government’s position is becoming increasingly shambolic. Pro-Remain Cabinet Ministers openly defy the Prime Minister – including ambushing her in Cabinet to rule out “No Deal” – and nothing happens. Supposedly Eurosceptic Cabinet Ministers, theoretically greater in number and several of them with future leadership ambitions, mumble disapprovingly into their coffee – but again nothing happens. Meanwhile, junior ministers write polemnical articles, openly opposing policies to which they are signed up as a consequence of the posts they hold – and yet again, absolutely nothing happens.

As everyone in the Commons now knows, any concept of collective responsibility has now completely broken down. Ministers of all ranks basically do whatever they like, without any fear of sanction from Number Ten whatsoever.

This reached truly farcical proportions yesterday, when Alberto Costa, a popular PPS, tabled a motion for yesterday’s European debate seeking to guarantee the future rights of EU citizens living in the UK. This was actually a statement of the Government’s existing policy, as demonstrated by Sajid Javid when he gave evidence to the Home Affairs Select Committee shortly before the debate itself.

However, Alberto was then unceremoniously sacked as a PPS for tabling an amendment , as a PPS, without permission – even though the Government effectively then adopted his amendment several hours later at the end of the debate without a division. This is, to use a technical Parliamentary term, stark-staring bonkers.  In short, A Government which cannot impose discipline on its senior Ministers who oppose Government policy, none the less sacks a popular PPS instead for backing Government policy.

I have been an MP for 18 years and I have never seen anything even remotely like this. It is one rule for Europhile Ministers and another for everyone else. Boris Johnson, David Davis, Dominic Raab, Esther McVey, Steve Baker, Suella Braverman, Shailesh Vara and a host of honourable PPSs all resigned, in accordance with constitutional convention, as they could no longer support the European policy of the Government. By stark contrast, Europhile Ministers now break ranks on a virtually daily basis, but no-one ever resigns – and no-one even attempts to discipline them either.

In the midst of this maelstrom sit the poor, dispirited Whips Office, staffed by dedicated colleagues and led by a fundamentally decent man, Julian Smith, who is desperately trying to somehow keep the show on the road, amidst a near impossible situation.

However, the whips clearly appreciate that, when collective responsibility has already blatantly disintegrated, it is practically impossible to discipline understandably anxious backbenchers, who see Ministers doing whatever the hell they like without any meaningful sanction whatsoever. Do as I say, not as I do, does not generally impress Conservative MPs (or anyone else either).

The Voluntary Party must now save the Day

This brings us back to the Voluntary Party motion, which opposes a second referendum, which would be highly divisive for the country as a whole and which now very clearly distinguishes us from Corbyn and Labour.

The motion also says that “No deal” must stay on the table – which only makes sense. It is the one thing the EU are really frightened of, so why should we throw away our best negotiating card – for nothing? What sensible businessman or woman entering a tough negotiation would ever do such a crazy thing? The National Convention motion offered no qualification about not leaving in the event of No Deal. Indeed, the Manifesto on which I,  and virtually every other Conservative candidate stood at the 2017 General Election, declared that “we continue to believe that no deal is better than a bad deal for the UK.”

I welcome the suggestion, advanced on this site and supported by Jacob Rees-Mogg and others, that local Conservative Associations should now follow the clear lead of their senior Voluntary Party colleagues by debating and passing the same motion, at their Annual General Meetings around the country, most of which will take place during the “AGM season” next month.

This would send a powerful signal to Downing Street and to CCHQ that the Voluntary Party is resolved – and can no longer be taken for granted. It is, after all, the necks of voluntary party members that will be on the block in May if this unforgivable shambles continues and so they should be allowed their say, from Hastings and Rye and Runnymede, right through to Portsmouth North and Bromsgrove.

Summary

In summary, collective responsibility has self-evidently broken down in Parliament and the Government is staggering from one daily crisis to the next. Yesterday’s events in the Commons made that undeniably apparent.

If we extend Article 50, and just kick the can down the road – yet again –  we are likely to see our local government candidates massively punished in the May local elections. Even leaving aside the so-called “Brexit Party” (with which I have absolutely no truck) this punishment will likely be administered by a mass abstention of Conservative voters, over 70 per cent of whom voted to Leave, but who are increasingly incensed by Conservative MPs, including Cabinet and junior ministers, blatantly doing all they can to try and stop us leaving the EU, despite the clear verdict of the 2016 Referendum.

So speaking purely for myself, and not for the ERG, I believe it is time for the rest of our local associations around the country to follow the clear lead of the National Conservative Convention and stand up and be counted before it is too late.  We have spent nearly three years waiting for Brexit. Now is the time for our party members, the poor bloody infantry, to ensure that we finally succeed in delivering it.

Finally, today, February 28, is also D-29.  If we hold our nerve as a Party then in under one month this country will be free. This is a great prize that 17.4 million of our fellow countrymen voted for – and is surely well worth fighting for.