“The backstop is anti-democratic.” Johnson’s letter about it to Tusk. Full Text.

Dear Donald,

United Kingdom’s exit from the European Union

The date of the United Kingdom’s (UK) exit from the European Union (EU), 31 October, is fast approaching. I very much hope that we will be leaving with a deal. You have my personal commitment that this Government will work with energy and determination to achieve an agreement. That is our highest priority.

With that in mind, I wanted to set out our position on some key aspects of our approach, and in particular on the so-called “backstop” in the Protocol on Ireland/Northern Ireland in the Withdrawal Agreement. Before I do so, let me make three wider points.

First, Ireland is the UK’s closest neighbour, with whom we will continue to share uniquely deep ties, a land border, the Common Travel Area, and much else besides. We remain, as we have always been, committed to working with Ireland on the peace process, and to furthering Northern Ireland’s security and prosperity. We recognise the unique challenges the outcome of the referendum poses for Ireland, and want to find solutions to the border which work for all.

Second, and flowing from the first, I want to re-emphasis the commitment of this Government to peace in Northern Ireland. The Belfast (Good Friday) Agreement, as well as being an agreement between the UK and Ireland, is a historic agreement between two traditions in Northern Ireland, and we are unconditionally committed to the spirit and letter of our obligations under it in all circumstances – whether there is a deal with the EU or not.

Third, and for the avoidance of any doubt, the UK remains committed to maintaining the Common Travel Area, to upholding the rights of the people of Northern Ireland, to ongoing North-South cooperation, and to retaining the benefits of the Single Electricity Market.

The changes we seek relate primarily to the backstop. The problems with the backstop run much deeper than the simple political reality that it has three times been rejected by the House of Commons. The truth is that it is simply unviable, for these three reasons.

First, it is anti-democratic and inconsistent with the sovereignty of the UK as a state.

The backstop locks the UK, potentially indefinitely, into an international treaty which will bind us into a customs union and which applies large areas of single market legislation in Northern Ireland. It places a substantial regulatory border, rooted in that treaty, between Northern Ireland and Great Britain. The treaty provides no sovereign means of exiting unilaterally and affords the people of Northern Ireland no influence over the legislation which applies to them.

That is why the backstop is anti-democratic.

Second, it is inconsistent with the UK’s desired final destination for a sustainable long-term relationship with the EU.

When the UK leaves the EU and after any transition period, we will leave the single market and the customs union. Although we will remain committed to world-class environment, product and labour standards, the laws and regulations to deliver them will potentially diverge from those of the EU. That is the point of our exit and our ability to enable this is central to our future democracy.

The backstop is inconsistent with this ambition. By requiring continued membership of the customs union and applying many single market rules in Northern Ireland, it presents the whole of the UK with the choice of remaining in a customs union and aligned with those rules, or of seeing Northern Ireland gradually detached from the UK economy across a very broad ranges of areas. Both of those outcomes are unacceptable to the British Government.

Accordingly, as I said in Parliament on 25 July, we cannot continue to endorse the specific commitment, in paragraph 49 of the December 2017 Joint Report, to ‘full alignment’ with wide areas of the single market and the customs union. That cannot be the basis for the future relationship and it is not a basis for the sound governance of Northern Ireland.

Third, it has become increasingly clear that the backstop risks weakening the delicate balance embodied in the Belfast (Good Friday) Agreement. The historic compromise in Northern Ireland is based upon a carefully negotiated balance between both traditions in Northern Ireland, grounded in agreement, consent, and respect for minority rights. While I appreciate the laudable intentions with which the backstop was designed, by removing control of such large areas of the commercial and economic life of Northern Ireland to an external body over which the people of Northern Ireland have no democratic control, this balance risks being undermined.

The Belfast (Good Friday) Agreement neither depends upon nor requires a particular customs or regulatory regime.

The broader commitments in the Agreement, including to parity of esteem, partnership, democracy and to peaceful means of resolving differences, can be be met if we explore solutions other than the backstop.

Next Steps

For these three reasons the backstop cannot form part of an agreed Withdrawal Agreement. That is a fact we must both acknowledge. I believe the task before us is to strive to find other solutions, and I believe an agreement is possible.

We must, first, ensure there is no return to a hard border. One of the many dividends of peace in Northern Ireland and the vast reduction of the security threat is the disappearance of a visible border. This is something to be celebrated and preserved. This Government will not put in place infrastructure, checks, or controls at the border between Northern Ireland and Ireland. We would be happy to accept a legally binding commitment to this effect and hope that the EU would do likewise.

We must also respect the aim to find “flexible and creative” solutions to the unique circumstances on the island of Ireland. That means that alternative ways of managing the customs and regulatory differences contingent on Brexit must be explored. The reality is that there are already two separate legal, political, economic and monetary jurisdictions on the island of Ireland. This system is already administered without contention and with an open border.

The UK and the EU have already agreed that “alternative arrangements” can be part of the solution. Accordingly:

– I propose that the backstop should be replaced with a commitment to put in place such arrangements as far as possible before the end of the transition period, as part of the future relationship.

– I also recognise that there will need to be a degree of confidence about what would happen if these arrangements were not all fully in place at the end of that period. We are ready to look constructively and flexibly at whatcommitment might help, consistent of course with the principles set out in this letter.

Time is very short. But the UK is ready to move quickly, and given the degree of common ground already, I hope that the EU will be ready to do likewise. I am equally confident that our Parliament would be able to act rapidly if we were able to reach a satisfactory agreement which did not contain the “backstop”: indeed it has already demonstrated that there is a majority for an agreement on these lines.

I believe that a solution on the lines we are proposing will be more stable, more long lasting, and more consistent with the overarching framework of the Belfast (Good Friday) Agreement which has been decisive for peace in Northern Ireland. I hope that the EU can work energetically in this direction and for my part I am determined to do so.

I am copying this letter to the President of the European Commission and members of the European Council.

Yours ever,

Boris

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Cutting Air Passenger Duty can give us the flying start to our post Brexit future

If there is one tax cut that would show in totemic fashion that post Brexit Britain is truly ‘Open for Business’, it would be to cut Air Passenger Duty (APD). Since its introduction in 1994 by then Chancellor Ken Clarke, APD has increased by 680% for long haul flights and 160% for short haul at the same time that flight costs overall have fallen by 30% as a result of increased competition
amongst airlines. This has left the UK with the highest aviation taxes in Europe and the developed world, more than double Germany, the next highest in Europe.
 
We are competing in a global market for businesses and investors.  As Brexit approaches the new Chancellor must look with urgency at the impact that APD has on creating a truly global Britain. Put simply, APD is not working. It places an unnecessary cost on passengers and prevents a large number of routes from being economically viable, particularly in our regional economies. 
 
Aviation is crucial to our Brexit future beyond the EU. It is perverse that we are taxing planes and routes ‘out of the sky’ that we need to connect us to future trade opportunities.  Research conducted for Airlines UK last year showed that APD prevented a significant number of routes from being financially viable. APD is causing the UK to miss out on new routes like Bristol to Dubai;
Edinburgh to Delhi; and Birmingham to Tel Aviv. 
 
When my colleagues and I press ministers on this, they will often respond that passenger numbers have increased over the last few years so ‘what’s the problem’. Whilst this is true, it masks the real problem. In trade, ‘connectivity is king’. We lag behind our European neighbours in connectivity terms, with Germany having considerably more direct connectivity to China, Japan, South Korea and Brazil than the UK. This connectivity problem is also exacerbated by our regional airports losing routes, with Edinburgh Airport losing its valuable routes to the USA when Norwegian Airlines pulled the routes citing sky high APD as a key factor.
 
Over the last year, I have met with, and had representations from, airlines from across the world. The clear message from them is that APD is holding back our ability to connect our airports across the UK to the nations that we will need to be connected to for our global trading future.  One international airline made clear to me that they want to add more connections into the UK but are
prevented from doing so by the additional cost of APD to their cost base.
 
The Government’s approach to Air Passenger Duty is motivated by one factor – cash.  Air Passenger Duty brings in over £3 billion each year to the Treasury.  But this approach is simplistic and self-defeating, with research showing that more tax revenue would be raised from other taxes than would be lost from its abolition. It is estimated that there would be a net £570 million in extra tax
receipts in the first fiscal year following abolition, and positive benefits through to 2022 that could add up to as much as £2 billion in additional tax receipts.
 
Aviation is a key driver of economic growth. Take for example the Emirates route from Newcastle to Dubai, which has helped grow trade between North East England and Australasia from £150 million in 2007 to over £360 million for 2015.  Our post Brexit future needs more of these routes and APD is acting as block on airlines adding the routes that we desperately need.
 
APD is an out dated, exorbitant and perverse tax that is preventing us from having the connectivity that we need in a truly global Britain.  The Chancellor has the opportunity to end this and give us the flying start to our post Brexit future by cutting APD by at least 50 per cent, I urge him to do so.

The post Cutting Air Passenger Duty can give us the flying start to our post Brexit future appeared first on BrexitCentral.

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I’m a GNU. How do you do?

Let’s start by returning to the Fixed Terms Parliament Act.  Under its terms, a general election will not automatically follow if Boris Johnson’s Government is defeated in a vote of no confidence,   Instead, there will be a 14 days window in which to form a new administration.  If during these a putative one emerges, it will be subject to a vote of confidence.  Only if that fails will an election take place.

Now let’s look at the current Commons in that light.

It is by no means certain that the Prime Minister would lose a no confidence vote as matters stand.  This is because his opponents cannot be sure that enough Conservative backbenchers and opposition MPs would combine to force him out.  ConservativeHome will look more closely at the numbers later this week.

But if he did, the odds of him then losing a second Commons vote are longer.  To understand why, imagine the following.  Johnson loses a no confidence vote.  The Queen permits him to have a go at forming another government within the 14 day window.  Johnson’s defeat in the vote of confidence that follows would bring about an election, under the terms of the Fixed Terms Act, as described above.  Some MPs willing to oppose Johnson in the original vote of no confidence might therefore be willing to support him in the vote of confidence.  Why?  Because they don’t want to face the voters in a general election.

Of course, the Queen might not allow Johnson to have another go.  But that possibility makes our point in a different way.  The only other plausible Prime Ministerial candidate is Jeremy Corbyn.  And some MPs willing to oppose Johnson in that original vote of no confidence would be unlikely to support Corbyn in a vote of confidence.

In short, they might be willing to turn Johnson out, but not to put Corbyn in.  Again, this site will probe the numbers in detail later this week.

And Corbyn is the only other feasible Prime Ministerial candidate.  Take the talk of Ken Clarke or Harriet Harman as Prime Minister with not so much a pinch as a spoonful of salt.  The J.Alfred Prufrock MPs of the Tory benches aren’t going to back Harman.  And their Labour equivalents won’t support Clarke.  And since Conservative and Labour MPs together form a large majority in the Commons, either outcome lies at the very edge of possibility.

The so-called Government of National Unity or GNU – actually, a Government of National Disunity, since it would exclude all those who want Brexit now – looks like a wildebeest, in the manner of its namesake in the old Flanders and Swann song.  I’m a GNU.  How do you do?

For all these reasons, a no confidence vote will surely be a weapon of the last rather than the first resort for the Prime Minister’s opponents.  They would get a better return by seeking to pass a Bill compelling him to seek a further extension, aided and abetted by the Speaker.  Could anti-No Deal MPs draw up a legally watertight text?  Would Johnson seek an election if such a Bill looked likely to pass?  Would the Commons grant him one?  We may be about to find out.

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Richard Short: Don’t fall for the scare stories. Chlorinated chicken would be good for you. It’s time to tuck in.

Richard Short is the Deputy Director of Conservative Workers and Trade Unionists, and was Parliamentary Candidate for Warrington North in 2015.

So you think chlorinated food is going to ruin your health? If you have been to a restaurant and eaten the salad, then it’s too late, I’m afraid.

For EU Food safety rules demand that salads must be disinfected: this almost always means using chlorine and, trust me, even the highest-end restaurants do it. Quite right, too: it’s safe, very effective and it’s cheap. So if the EU is so demanding of our salads, why such a flap about giving the same treatment to chicken?

Chlorinated chicken has become the symbol of everything bad about trade with the United States – or indeed, any other country that treats chicken in this way, the reasons for which are many and varied. The anti-chlorine narrative is centred around food safety, with some commentators claiming the chlorine itself is harmful, which is simply untrue.

A more intelligent argument is that US welfare and abattoir standards for poultry are less strict, allowing higher density flocks which in turn, it is argued, leads to spread of pathogenic bacteria such as salmonella. The EU banned the use of chlorine in 1997, preferring a ‘farm to fork” approach to improve food safety. This approach places regulations on husbandry, feedstuffs, abattoir hygiene and food production – with more and more regulation creeping in over the years.

The US places its reliance on voluntary industry standards for husbandry, but has equally strict regulations for abattoirs. And it has food business standards which eclipse those of the EU – as anyone who has been in cross hairs of a United States Public Health Inspector will testify.

So who is doing better by the consumer? The clear winner is the United States – and we only need to look at the infection rate from one food poisoning bug to understand why. The most common worldwide pathogen present in chicken is the campylobacter bacteria. It exists in, on and around chicken and, while it causes the chicken no harm, it is the single highest cause of bacterial gastro-enteritis in the EU.

In the UK alone there has been a steady 50-60,000 cases annually reported. In the entire United States, by comparison, there were just over 6000 cases reported. In both countries, there are many unreported cases but, as both jurisdictions have well established and highly advanced public surveillance, the officially reported cases are an equivalent benchmark.

The EU’s intransigence on not allowing the chlorination of chicken is economically significant. Not only does it create an impasse in any trade negotiations with the US but, closer to home, it has a direct cost to the British economy in working days lost due to illness, with the associated costs to the NHS and social care.

The narrative of the Brexit debate has led to the chlorination of chicken becoming the antithesis of food safety. The irony is that, as well as the positive impact on food safety, the EU itself has publicly declared there are no food safety grounds to ban the process.

Yet it has been barred since the late twentieth century and, in doing so, the EU has banned the production of a safe, cheap source of meat for EU consumers. The sooner we start using chlorine, the faster we will see infection rates fall – and the sooner we’ll see hard pressed consumers more able to buy high quality, good value protein.

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Iain Dale: Don’t mention the war, please. Why Johnson was wrong to suggest Hammond and company are collaborators.

Iain Dale presents the evening show on LBC Radio, and is the author of the forthcoming book ‘Why can’t we all just get along’.

Last week at the Edinburgh Festival, John McDonnell told me that Labour would insist on Jeremy Corbyn leading any interim government of national unity, following any successful vote of no confidence in Boris Johnson’s administration.

I told him that this idea was delusional, since the Labour leader wouldn’t be able to command a majority in Parliament in such circumstance.  Yesterday, Corbyn confirmed that this is exactly his intention.  But since there are plenty even of his own MPs who don’t have confidence in him, one wonders how he thinks he could persuade those of other parties to row in behind him.

Jo Swinson has made it clear she wouldn’t. Anna Soubry is p**sed off that she wasn’t even cc’d on his letter. I have never thought a national unity government is a runner, and I think it’s even less likely now. Jeremy Corbyn really believes that defeating No Deal is the be all and end all, he wouldn’t be taking such an uncompromising stance. I wonder if his public aversion to it is as deep as he is making out.

– – – – – – – – – –

Corbyn says that he will call a Vote of Confidence when he thinks he can win it. Well, obviously.  But his rhetoric at the moment leads me to believe that he’s in danger of boxing himself in. The more he talks about it, the more pressure there will be on him to deliver it. And if he doesn’t, he’ll be painted as ‘frit’.

– – – – – – – – – –

The defection of Sarah Wollaston to the Liberal Democrats was among the least surprising news of the week. She will surely not be the last of the original Independent Group of MPs to travel that particular journey. I’d have thought there will be at least a couple more before their conference takes place.

And then, of course, there could well be one or two defections directly from the Conservative benches. Guto Bebb and Phillip Lee are the candidates most often mentioned. Both seem to be going through a bit of public agonising. I suspect if either of them, or indeed anyone else does the dirty deed, it will be at a moment of maximum impact. August is probably not that time.

– – – – – – – – – –

The Prime Minister was unwise to use the word ‘collaboration’ on his Facebook Live session earlier this week. He was rightly complaining that the actions and words of some Conservative MPs – and he clearly had Philip Hammond in mind – were persuading the EU to stick by its guns while they wait and see what havoc Parliament can wreak when it returns in early September.

His sentiment was right – but you can’t go throwing around words which have World War Two connotations and effectively accuse some of your Parliamentary colleagues of being quislings (another word with the same suggestion).

To so so debases the debate. I don’t know if it was a deliberate use of the word, or whether it just slipped out. If the latter, fine; but if it was a deliberate attempt to feed into the ‘People v Parliament’ narrative, well, there are better ways of doing it.

– – – – – – – – – –

On Monday, I returned from my two weeks appearing on the Edinburgh Fringe. In 24 shows, I interviewed Sir Nicholas Soames, Brandon Lewis and Eric Pickles (together), and Johnny Mercer, among many others. We’re releasing all the interviews on a new podcast, Iain Dale All Talk, which you can now subscribe to on whichever platform you get your podcasts from.

– – – – – – – – – –

Today is the first day of my first and only holiday of the year. It will last ten days and I intend to spend it in Norfolk doing precisely nothing. Apart from play golf. And binge-watch box sets. And write next week’s ConHome Diary, of course.

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James Arnell: The conventional wisdom about a trade deal with America is wrong. Trump will want a fair one. Here’s why.

James Arnell is a partner at Charterhouse. He writes in a personal capacity.

I disagree with most commentators who believe that the UK will get a raw deal in any US-UK trade negotiations after Brexit.

I do not underestimate the fickleness of Trump, nor the Irish-American lobby in Congress. I recognise the overwhelming weight of the US relative to the UK.  I know that the US looks after its interests and does no one any favours.

But I don’t think any of that will stop us agreeing a decent trade deal. I believe that the US has major strategic interests in a trade deal with the UK, and that it will decide not to use all the undeniable leverage it has to strike the toughest possible terms.  It will want to strike a fair deal.

The US is in “America First” mode.  Contrary to what most people seem to believe, I believe that means Trump, and the American people, wish to see a global trading system which it sees as fair from its perspective.  There are many senior American business people who believe that the renegotiation of NAFTA was long overdue, and who are throughly fed up with the uneven playing field between the US and China.

Yes, they worry about the effects of the US-China trade war on the US economy, but many of them believe that some fights just have to be had.  There is more patriotism in American business and much more business support for Trump’s China line than the media presents.

The opportunity to strike a trade deal with a long-term ally like the UK is timely.  Agreeing an even-handed trade deal sends a strong message: this is about fairness, not American economic bullying.  I am optimistic that the US, across the political spectrum, will support a fair deal with the UK, because I think that it has a very strong interest in sending that message.

And that is not all.

 

A thriving UK, in a comprehensive free trade relationship with the US, right on the periphery of the EU, will put massive pressure on it.  Other EU countries, fed up with the federal agenda of the EU, will look at the UK and wonder whether they too might be better free and able to strike their own trade relationships.  This threat to the EU will be eyed by the US as great leverage to force the EU into what the US would see as a fair trade deal.  They will want the UK to succeed in its deal with the US.  They won’t want to screw us – because that would make it far too easy for the EU to keep its trade barriers up.

The US’ leverage is greater if any UK-US trade deal is designed to be as close as possible to something the EU could, should and, ultimately, would accept.  There is no leverage in agreeing a deal which does not work for the UK and which certainly would not work for the EU, and the smart money in the US will know it.

Aside from its desire to show an openness to trade with partners who do not play the US for fools, and its desire to pressurise the EU, the US will also welcome a committed ally in the global struggle for a new trade order, binding the three big blocs (US, China, Europe) into a more open, more level world trade regime or, at least, binding the rest of the world into a trading system around an unreformed China.  That is the best chance of America remaining “First”.

At present, we are in the phase of pulling down the old system, which the US sees as rotten and against its own interests.  We should not confuse that with isolationism.  My firm belief is that the US will relish the opportunity to show the world what its new order should look like, by agreeing a sensible deal with the UK.

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A UK-US trade deal. Never mind the economics (at least for a moment). Feel the politics.

“While trade deals have taken on an important political and symbolic value in the context of Brexit,” Dominic Walsh of Open Europe wrote recently on this site, “their economic benefits are typically smaller and slower to materialise than many realise.” This is the place to start when considering a possible UK-US agreement on trade.  Boris Johnson’s enthusiasm for one is as much political as economic: a successful deal would show Britain, as it moves a bit further from the EU, also moving a bit closer to America.

Such a rebalancing is a strategic consequence of Brexit, at least in the eyes of many backers of leaving the EU.  Future trade deals were a Vote Leave EU referendum priority – though it may be significant that the United States was not one of the headline countries named.  Perhaps the reason was a wariness of anti-American sentiment among a section of the voting public.  None the less, the prospect of a trade agreement with the United States was mooted during the 2016 campaign: hence Barack Obama’s line, written for him by Team Cameron, of Britain being “at the back of the queue” for such a deal.

The obstacles to one are formidable.  For while the Prime Minister is bound to view it through the lens of politics, Donald Trump is more likely to do through that of economics – though the one admittedly tends to blur into the other.  America’s approach to such matters as food safety and animal welfare, environmental protection and intellectual property rights is different from ours in any event.  Never mind the red herring of chlorinated chickens – so to speak – or autopilot claims from Corbynistas about NHS selloffs. The real action is elsewhere.  The United States has long had a protectionist streak, and is resistant to opening up its financial services markets, for example.

The conventional view is that Trump is the biggest America Firster of all; that he would drive a hard bargain, that he has the muscle to do so – and that he wouldn’t be in control of an agreement anyway.  Congress could block one if it wished, and might well do so in the event of No Deal, since the Irish-American lobby is as well-entrenched as ever.  It has been a headache for British governments over Ireland-linked matters before: remember the McBride principles.  A different take is that politics may win out in the end, because both Trump and Congress will want a UK trade deal in order to put economic and political pressure on the EU: we will publish more about that later this week.

John Bolton, Trump’s National Security Adviser, is visiting Britain.  He said yesterday that the UK will be “first in line” for a trade agreement post-Brexit – a deliberate counter to Obama’s line.  Bolton will be dangling the prospect as an inducement.  He will want Johnson to take a more resistant line to Huawei than Theresa May did, and for the UK to move closer to America’s position on Iran.  But the possibility of early sector deals – or at least the exclusion of Britain from new pro-protection moves – seems to be real enough.  As with the NHS, policing, immigration and stop and search, so with trade.  Johnson wants progress towards a quick win as a possible election looms.

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Dominic Walsh: What would No Deal mean for trade beyond the EU?

Dominic Walsh is a policy analyst for Open Europe.

At present, the UK and the EU are on course for a No Deal Brexit. Yesterday morning, EU negotiators said there was no basis for any “meaningful discussions” about a potential deal. Meanwhile, in Westminster, it is far from clear that Parliament will be able to stop No Deal, which remains the legal default on October 31.

There has rightly been a lot of focus on what No Deal would mean for the UK’s trade with the EU. However, No Deal also has significant implications for the UK’s trade with the rest of the world – bringing both threats (some trade deals the UK enjoys through the EU will be lost and haven’t been replaced), and potential opportunities (the UK will be able to exercise an independent trade policy from day one).

The UK will set its own tariffs on all imports

In the immediate event of a No Deal exit, the UK’s ability to unilaterally set its own tariff regime on imports is likely to be a more significant plank of UK trade policy than trade deals. The Government’s current approach, which removes tariffs on 87 per cent of goods imports to the UK, has advantages and disadvantages, but correctly errs towards the interests of the UK consumer, while protecting some sensitive producers such as in the farming sector. At present, this regime is only due to last for a year – with uncertainty over what comes next.

The Government has several options for the long-term and, as ever with Brexit, there are trade-offs to confront. Continuing with a liberal approach to tariffs could have benefits for consumers and would increase competition in the UK economy.

However, there is an argument that unilateral liberalisation undermines the UK’s leverage with potential trade partners (who may think there is little point in doing a deal if they are already getting zero-tariff access for free). Raising tariffs, on the other hand, could restore some of this leverage, but at the cost of increasing trade barriers and imposing a regressive tax on consumers. The Government will need to decide swiftly after No Deal which approach is the best way forward.

Preserving EU trade deals 

As an EU member, the UK benefits from around 40 trade deals the EU has negotiated with around 70 third countries. The importance of these deals to the UK economy varies considerably. While trade with these 70 countries makes up approximately 15 per cent of the UK’s total trade, two thirds of this is with just six countries – Canada, South Korea, Japan, Turkey, Switzerland, and Norway. Many of the other countries covered by EU agreements make up less than 0.05 per cent of UK trade. When it comes to rolling over trade deals, quality beats quantity.

Under Liam Fox, the Department of International Trade made better progress in “rolling over” existing EU agreements than some have given it credit, though significant gaps remain. Of the six major partners above, it has secured continuity agreements with Switzerland, Norway, and South Korea.

However, Japan has refused to roll over its existing deal with the EU, as it thinks it can get better terms through a bespoke bilateral deal. The UK’s current trading arrangements with Turkey rely on the latter’s customs union with the EU, and therefore cannot be preserved in a No Deal context. And negotiations with Canada have stalled because the UK’s low No Deal tariffs give competitor countries without a trade deal the same levels of access as Canada (known as “preference erosion”).

In addition, the “rollovers” that the UK has secured do not all provide full trade continuity. For example, the deals with Norway, Iceland and Switzerland provide for tariff-free trade in goods, but do not cover services or regulatory alignment in product standards.

The consequences of failing to preserve EU trade deals in a No Deal will affect exporters more than importers, thanks to the UK’s relatively liberal No Deal tariff regime. For example, businesses exporting cheese to Canada face eye-watering tariffs of 245 per cent, whereas Canadian pearls and precious stones (73 per cent of UK imports from Canada) would continue to enter the UK tariff-free.

New avenues for global trade

Whatever the outcome of Brexit, it makes sense for the UK to diversify its trade beyond the EU. Brexiteers are right to point out that the EU’s portion of the UK’s trade has already been gradually declining for the last 20 years; the question is how best to harness this. A No Deal outcome would be likely to accelerate this trend, and open up the UK to non-EU trade much more quickly.

However, a sharp change will not be an easy or painless transition for sectors highly integrated into EU supply chains. Geography still matters to many traders – particularly those involved in perishable or time-sensitive goods, such as fresh food.

Both Boris Johnson and Liz Truss are committed to pursuing new trade deals after Brexit. However, expectations of dozens of ‘quick wins’ in a No Deal scenario should be tempered. Some countries may adopt the “wait and see” strategy adopted by Canada and Japan – partly due to the ongoing lack of certainty over the UK’s future trading relationship with the EU, and partly because it is unclear that any deal negotiated by the UK would be ratified by this Parliament.

Just like the EU, potential trading partners have their own interests which will not always be aligned with those of the UK. The primary example is the US, which Truss has said she wants to deliver “as soon as possible.”

Yet there are a number of obstacles to a UK-US trade deal, which will take time to overcome – such as food standards (think chlorinated chicken), drug procurement, and digital services. There are also political obstacles to ratification on both sides. In the Commons, a deal with Trump’s US would be just as controversial as a deal with the EU, while the Democrat-controlled Congress cannot be relied upon either.

While trade deals have taken on an important political and symbolic value in the context of Brexit, their economic benefits are typically smaller and slower to materialise than many realise. As Fox found on the job, there are many ways to promote UK trade interests other than trade deals, such as exploiting soft power assets and prioritising services trade (where the UK is a world leader).

The trade debate in the UK is still beset by simplistic soundbites. While this might be expected after 40 years of outsourcing trade policy to Brussels, the UK needs to grapple with the realities of global trade quickly in order to make a success of Brexit.

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Lord Ashcroft: My new Scotland poll. Yes to Independence takes the lead.

Lord Ashcroft KCMG PC is an international businessman, philanthropist, author and pollster. For more information about his work, visit www.lordashcroft.com and www.lordashcroftpolls.com.

In the wake of Boris Johnson’s visit to Edinburgh last week, I polled Scots to measure support for a second independence referendum and to gauge opinion on independence itself. I found a small majority in favour of a new vote – and the first lead for an independent Scotland for more than two years.

I found 47 per cent agreeing that there should be another referendum on Scottish independence within the next two years (Nicola Sturgeon has demanded a new vote by 2021), with 45 per cent disagreeing.

While more than nine in ten Conservatives oppose a referendum, a return to the polls is favoured by more than one third of 2017 Labour voters, more than half of EU Remain voters, and by more than one in five of those who voted No to independence in 2014.

Asked how they would vote in such a contest, 46 per cent said they would vote Yes to independence, and 43 per cent No. Excluding those who say they don’t know or wouldn’t vote, this amounts to a lead of 52 per cent to 48 per cent for an independent Scotland. This is the first lead for independence in a published poll since an Ipsos MORI survey in March 2017, and the biggest lead since a spate of polls in June 2016, shortly after the UK voted to leave the EU.

One third of Labour voters, a majority of EU Remain voters and 18 per cent of those who voted No to independence last time round said they would vote Yes. Again, more than nine in ten Tories said they would vote No, as did just over one in ten of those who backed independence in 2014. A majority of voters up to the age of 49 said they would vote Yes, including 62 per cent of those aged 18 to 24.

Overall, a majority of Scots thought that if a second referendum were to be held, the result this time would be an independent Scotland. Only three in ten – including just two thirds of Conservatives and fewer than half of 2014 No voters – thought Scotland would vote to remain part of the UK. A further 18 per cent said they didn’t know.

More than six in ten Scots – including 38 per cent of 2017 Conservatives and two thirds of Labour voters – said they think Brexit makes it more likely that Scotland will become independent in the foreseeable future. Indeed, more than half of 2014 No voters think this is the case, with 32 per cent of them saying it makes independence much more likely.

Just over half – including a majority of Labour voters, nearly one in five Tories and two thirds of EU remain voters – say Brexit strengthens the case for Scotland to become independent.

Nearly half (46 per cent) of all Scots agree with Sturgeon’s claim that a No Deal Brexit would be disastrous for Scotland, including half of Labour voters and nearly one in five Tories. A further three in ten (including most Conservatives) think the risks have been exaggerated but there would be some difficulties.

Asked what their preferred Brexit outcome would be, most 2017 Conservative voters backed Boris Johnson’s position that the UK should leave the EU on 31 October, with or without a deal – though one in five said they would be prepared to wait longer than October for a better deal, and nearly a quarter said they wanted to remain in the EU. Remaining is the most popular outcome, though favoured by only half of all Scots.

Scottish voters are closely divided as to whether – if it were not possible to do both – it would be more important for Scotland to remain part of the UK, or to remain in the EU. While 43 per cent would prioritise the Union, 45 per cent would prioritise the EU. While Conservatives and SNP voters were leaned heavily as one would expect, Labour voters were split: 46 per cent would choose the UK, 40 per cent would choose the EU, and 14 per cent say they don’t know.

More than half of Scots said there should be a second referendum on EU membership, including 69 per cent of SNP voters, more than half of Labour voters and one in five Conservatives. Should this take place, 67 per cent of those giving an opinion said they would vote to remain.

As for Boris Johnson’s first week as Prime Minister, while nearly half of Scots said they expected him to do badly, a quarter of those said he had done better than they had anticipated.

While only just over one third of 2017 Conservatives they expected him to do well and he had, a further one in four said they had had low expectations but been pleasantly surprised.

Compared to other politicians, Boris Johnson ranks relatively low among Scottish voters – though still above Nigel Farage, Jeremy Corbyn, and Scottish Labour leader Richard Leonard. He scores well below Ruth Davidson, both among Scots as a whole and, to a lesser degree, 2017 Conservatives.

Asked which of the two most likely candidate would make the better Prime Minister, 29 per vent of Scots named Johnson, 23 per cent said Corbyn, and nearly half said they didn’t know. Fewer than four in ten 2017 Labour voters said they thought Corbyn would make the best Prime Minister.

Despite this, when forced to choose, Scots said they would prefer a Labour government with Corbyn as Prime Minister to a Johnson-led Conservative government by 57 per cent to 43 per cent. A quarter of Labour voters said they would prefer the latter, as did the same proportion of SNP voters – perhaps calculating that this circumstance held out the best prospect of independence for Scotland.

3Those who voted SNP in 2017 are the most likely to say they will stick with their party in a new general election. They put their mean likelihood of turning out for the party at 88/100, compared to Conservatives’ 71/100 chance of voting Tory again; 2017 Labour voters put their chance of voting the same way in a new election at just 56/100. Some Tories were tempted by the Brexit Party (their mean likelihood of voting this way being 35/100), and some by the Lib Dems (26/100). The SNP, the Liberal Democrats and the Greens all held some appeal for Labour voters. In terms of overall mean likelihood to vote for the party, both Labour and the Tories ranked behind the SNP, the Lib Dems and the Greens, whose score was boosted by an average likelihood of 55/100 among 18-24 year-olds.

Full data tables for the survey are available at LordAshcroftPolls.com.

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Is Johnson aiming for a snap election?

Version one is that, as soon as Parliament returns in September, Boris Johnson will seek, and obtain, a general election.  He will thereby seize the initiative, commit again to leaving the EU by October 31, squeeze the Brexit Party’s vote, and exploit an opposition vote divided elsewhere, in England and Wales, between Labour and the Liberal Democrats.  Although the Conservatives will lose seats in London and Scotland these will perhaps be offset by gains in the Midlands and North.  The sum of this case is that the new Prime Minister must move early before Parliament proves him powerless, now that he has next to no working majority.

Version two is that Johnson hasn’t the credibility, under such a scenario, to squeeze the Brexit Party as much as he needs to.  Instead, he must prove his commitment to that October 31 date.  And he can only do that by going for it, deal or no deal.  Which he must do until or unless the Commons votes that it has no confidence in his Government, or the Philip Hammond/Oliver Letwin/Dominic Grieve/Yvette Cooper continuum, aided and abetted by the Speaker, finds a means of preventing Brexit by the end of October.  At which point, the Prime Minister seeks and obtains an election, as above, and tries to utilise the differences between his opponents.

Which version you believe may depend on, inter alia: how quickly CCHQ can get election-ready; whether you think voters would treat any poll as a referendum on Brexit (as in 2016) or a vote on wider domestic policy (as in the snap election of 2017); what the EU does next; what any Johnson manifesto might say – would it unambiguously commit to scrapping the Withdrawal Agreement? – and, above all, whether it would be too late for an election to stop Britain leaving the EU by October 31 in any event.  A poll by which date Brexit had already happened would obviously be different from one by which it had not – especially if squeezing Nigel Farage’s party is the name of the game.

The political story of this August, unexpected foreign affairs or other crises aside, will be about these alternatives – an election that Johnson either forces himself or is forced on him.  There will be a mass of conjecture and a shortage of facts.  This will be intensified by claims about what Dominic Cummings does and doesn’t think, and he is a man who likes to throw his opponents off balance.  So for what it’s worth, our advice is to stay cool, hang loose, enjoy the summer – and rule almost nothing out.  If you do the last, you may well be imitating Johnson and Cummings themselves, hunkered down as they will be with policy wonks and constitutional lawyers.

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Kyle Murray: Putting Parliament in Its Place: The Pro-Brexit, Democratic Case for a Second Brexit Referendum

I am a Brexiteer. I am also a democrat (indeed for me the two are very much connected). In this post, I argue that despite mainstream protests to the contrary, democratic principle points to a strong case for a second Brexit referendum. The argument also gives some food for thought regarding the democratic credentials of the UK constitution, and its prizing of Parliamentary sovereignty.

Most Brexiteers strongly disagree with the idea of a second referendum. The case for a second referendum is often seen as a “Remainer’s” cause. This piece argues that these stances are misguided: a consistent and rigorous application of democratic principle alone leads to a compelling case for a second referendum. This need not be a Remain case – in fact, making that central to the argument fails to take democratic principle sufficiently seriously.

To make this case, I will first elaborate a conception of democratic legitimacy. This provides the positive case for a second referendum: it is the ideal expression of political equality and respect for the decision-making capacity of individuals. I will then consider the popular “democratic” argument against a second referendum, showing it to be contradictory, or at the least, to lead to democratically dubious results. As well as making the case for a second referendum, this argument has wider implications for UK democracy, which will be drawn out along the way.

The Democratic Case for a Referendum

On the account presented here, the key to democratic legitimacy is political equality: democracy treats each individual, their views, beliefs and value judgements, equally in the process of collective decision-making. Majority decision-making in particular does this by according each participant maximum decisional weight compatible with giving the same to others. Waldron praises this as treating each morally autonomous individual with “respect”.

A referendum, operating on a simple majority, reflects this respect in a direct and immediate way: participants vote on the outcome itself, and their votes are given maximal weight. On this basis, “going to the people” in a referendum – including on the future of Brexit – would be the ultimate expression of democratic value: the people themselves, and everyone equally, are given maximal power to determine the decisions under which they live.

The debate since the original Brexit referendum has revealed a number of very important choices about how we Brexit. Deciding between these involves a number of value-laden judgements and balancing exercises: May’s Deal vs No Deal; both of these options (and possibly others) vs Remain. These are important decisions on which people disagree and which, on democratic principle, individuals themselves should have an equal say.

That this is a question of balance shows why each of the above options must be on the ballot paper – individuals must be given maximum power to weigh up and decide upon the options before our country. Taking No Deal off the table, for example, only gives part of the equation and removes the ability of people to set their own relative priorities. Taking Remain off the ballot paper does the same. This is why a referendum purely on how we Brexit, but not, in addition, whether, would be unsatisfactorily incomplete. It might carry a fleeting appeal for the hardcore Brexiteer, but in terms of its democratic credentials, such a referendum would fall short.

While giving individuals a maximal say on the various options available strengthens the democratic case for a second referendum, I have carefully avoided referring to any alleged “change in conditions” since 2016, or the “need” to avoid a No Deal. Nor have I argued that we need a referendum to break the current parliamentary deadlock, or in order to make the case for Remain. These are popular arguments among those who do call for a second referendum, but they are not necessary to make the case.

They are also instrumental concerns, rather than democratic ones. The implication is that, were it not for these factors, the case for a second referendum would fall short. This fails to take core democratic principle sufficiently seriously: democratic participation is not something that needs to be earned or granted only where specific circumstances require it – it is, as Waldron often puts it, the “right of rights”.

Democratically Undemocratic? The Democratic Objection to a Second Referendum

In light of the democratic credentials of referendums, it is peculiar that the apparent mainstream position is that a further Brexit vote would be anti-democratic. In addition to prominent Brexiteers, this has long been the Government line, with Theresa May often reminding us that ‘we had the people’s vote’, and ‘the people voted to leave’.

In short, the argument is that we must “deliver” on the “will of the people” expressed in the 2016 referendum. Anything else would be undemocratic. As one commentator put it, a ‘second referendum would erode the very basis of democracy by suggesting that rule by the majority is an insufficient condition for democratic legitimacy’.

The premise of this argument – that the 2016 referendum result must be delivered – treats the referendum as a legitimacy-giving device. Indeed, it is apparently the ultimate form of political legitimacy, giving the 2016 result a sacrosanct status as something that categorically must be delivered by MPs.

On the grounds above, this premise is well placed. However, while the objection is right to attribute strong democratic legitimacy to the result of a direct majority vote, it falls into an immediate tension in limiting this to the 2016 referendum alone.

The problem is that if the referendum process does give the 2016 result supreme democratic legitimacy, why does it not do the same for any further referendum? The qualities, and therefore democratic value, of the process remain unchanged – it is still a majoritarian process giving maximum decisional weight to individuals directly over collective decisions. Yet, a second referendum is given a toxic status and becomes the antithesis of democracy.

Unless this question can be satisfactorily answered – from democratic principle itself – the case that a further referendum would be undemocratic appears straightforwardly self-defeating. It would treat the majoritarian referendum process both as a legitimacy-giving and legitimacy-robbing device.

The obvious difference, it might be replied, is that we have already had a referendum. Perhaps this affects the democratic legitimacy of a second. However, treating this as making the difference leads to some democratically dubious results.

Endowing only the first referendum with democratic force leads squarely into the problem of entrenchment: the “will of the people” at one point in time – 2016 – is held to bind the people at a future point in time. Effectively, the current “will of the people” is indefinitely sacrificed to the past on the altar of “democracy”.

This irony would not be lost on classical democratic theorists: the problem of inter-temporal entrenchment – or the “dead hand of the past” – can be traced back to Jefferson and Paine. Perhaps not enough time has passed for this to count as “inter-generational” entrenchment (or for the hands to literally be “dead”). Indeed, it is difficult precisely to draw the line showing when a new “generation” supposedly begins. But regardless, the point stands that the people at one point in time are bound by the past. This is a further reason why a referendum without Remain as an option would be unsatisfactory on democratic principle.

Thus, on the “democratic” objection to a further referendum, from 2016 onwards individuals are in effect rendered powerless on all matters Brexit. This is far from democratic, on the conception above, and indeed on the conception assumed by those who prize the “will of the people”.

Putting Parliament in Its Place

The undemocratic picture gets even worse once a side effect of denying a second referendum is factored in. While citizens are disempowered, the Government and Parliament are left in control. The power to approve (or not) the final Brexit deal is – following some intervention – left to MPs. We are where we are because they have repeatedly rejected that deal.

MPs have also to date rejected the idea of a further referendum. First, in the series of indicative votes, then in making clear that even the promise to offer a referendum on the deal – to confirm the actual views of their constituents – was not going to be enough to get it through.

The result is that those who argue against a further referendum on the deal, and, yes, on Brexit itself, are arguing to disempower the people on a number of important, inter-related questions, such as those stated above: the balance between the benefits and drawbacks of the Withdrawal Agreement as against the benefits and drawbacks of No Deal; the benefits and drawbacks of each of the above as against Remain.

These are important, value-laden judgments, on which many hold views. The irony is that those who reject a further referendum on the basis that we must respect the “will of the people” are in fact disempowering those people on these crucially important questions. They are all left to MPs.

It might be replied that Parliament is democratic – indeed, “but we’re a parliamentary democracy” has become something of a soundbite. However, while we do have a long history of Parliamentary democracy, this says nothing of its democratic credentials vis-à-vis referendums.

Put bluntly, in democratic terms there is no competition. Not only is a direct majoritarian vote the ideal reflection of respect for the decision-making capacity of individuals, it throws into sharp relief some problematic elements of representation.

Despite its reputation as pleasingly “democratic” – thereby providing the normative underpinning for the doctrine of parliamentary sovereignty – representation has a prima facie elitist character. This is due to the inequality in decisional influence at its heart. Taken back to basics, representation involves giving greater control – greater decisional weight – to a small group of people, while leaving the rest with, at best, only indirect influence.

This not only underlines the point about the democratic credentials of a second referendum, it leads to a wider point about UK democracy. We have a system where MPs have the sovereign authority to decide the questions which face our society, where direct democracy – giving individuals this power – is seen very much as a special occasion (and to some not a happy one) grantable only on the whim of Parliament.

We have a system where the news of the day is whether Parliament will let a Government force the country down a No Deal route, while repeatedly refusing to allow individuals themselves to take this decision. In such a system, democracy and its underlying values of political equality and respect for the decision-making capacities of individuals is far from achieved. Referendums, and particularly a direct power for citizens to initiate them (as in Switzerland, for example), are a way of tempering this imperfection inherent in representative democracy.

Conclusion

I have put forward a principled democratic case for a second referendum: it would give individuals maximal decision-making power on the future of Brexit, and the value-judgements implicated. “Democratic” arguments against such a vote, while common, are misguided, and arguably give rise to democratically dubious results.

This case turns up some food for thought regarding the state of UK democracy more generally, highlighting the disempowerment and elitism at the heart of its lingering attachment to a pure form of Parliamentary democracy, in which direct decision-making is seen as an occasional pathology.

Brexit was seen by many as a chance to reinvigorate our democracy. Indeed, the principal reason I supported Brexit in the first referendum – and still do – is that it was the more democratic option; a chance to enhance the future self-government of the UK, and to move power closer to its individual citizens. The argument in this blog has tried to take this sentiment seriously. Parliament has, with a little help from the courts, staked its claim in the process. But for a democrat it is not only the Government which needs putting in its place – it is Parliament too. The Brexit process itself seems a good place to start.

Many thanks to Robert Craig, Gavin Phillipson and Alison Young for, as ever, thorough and helpful comments on previous drafts.

Kyle Murray is a Teaching Fellow in Public Law and Human Rights and PhD Candidate at Durham Law School, Durham University.

(Suggested citation: K. Murray, ‘Putting Parliament in Its Place: The Pro-Brexit, Democratic Case for a Second Brexit Referendum’, U.K. Const. L. Blog (26th Jul. 2019) (available at https://ukconstitutionallaw.org/))

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Robert Craig: Judicial Review of Advice to Prorogue Parliament

In a recent Times article, Lord Pannick QC – leading Counsel in the Miller litigation – argues that if a Prime Minister were to advise HMQ to prorogue parliament to achieve a No Deal exit, an application could be made to the courts to determine the lawfulness of such advice. Sir John Major said on the Today programme on 10 July that he would personally bring a judicial review of any decision by the Prime Minister to advise prorogation.

After briefly considering issues of timing and justiciability, Lord Pannick makes three main arguments as to why, in his view, advice to prorogue parliament to achieve No Deal would be ruled unlawful by the courts. First, he claims that proroguing parliament would contradict parliamentary sovereignty. Secondly he claims the urgency of the situation would make prorogation unlawful. Thirdly, he argues that such advice would be ‘seeking to evade parliament because it has previously made clear its wish to prevent a no-deal Brexit’.

While Lord Pannick’s argument is characteristically attractively presented, there are some significant difficulties with it. Of course, it must be borne in mind that a brief 800 word article in a newspaper cannot do justice to the full argument.

Space precludes detailed consideration of issues of timing but suffice to say that Miller was incredibly expedited, including leapfrogging the Court of Appeal, but it still took six months.

A caveat on the potential use of prerogatives in the Brexit context

I have previously defended the theoretical possibility of the use of Royal Assent and Queen’s Consent in some extreme circumstances if there were unprecedented moves by a shadow executive undermining the procedures of the House of Commons. I have ultimately justified these responses because the remedy of a vote of no confidence remains available.

My view on prorogation is considerably more conflicted, precisely because any overtly political prorogation to avoid a vote of no confidence contradicts what I view as the central principle of the political constitution which is the doctrine of confidence. Parliament represents a dialectical relationship between the two balancing forces of executive and legislature, both of which we choose in our bifurcated vote at general elections. When we vote in the UK, we choose a local MP, but in reality we also vote on a manifesto and on a slate of those seeking executive office.

Justiciability

The most serious problem facing any potential litigation relates to justiciability. In his article, Lord Pannick lightly touches on case law relating to passports, ex gratia payments and other successful applications to the court for review of the exercise of prerogative power. Unfortunately, these examples fall on one side of a clear red line for the courts in terms of the kinds of prerogative that they are normally prepared even to consider.

In GCHQ, Lord Roskill famously listed a series of prerogatives that he held would remain outside the court’s purview even after the test set out by the court for judicial review transitioned from the source of the power to the subject matter of that power. Technically the list is obiter dicta, of course.

The Roskill list includes ‘the making of treaties, the defence of the realm, the prerogative of mercy, the grant of honours, the dissolution of Parliament and the appointment of ministers’ (p418). The prorogation of parliament falls squarely within the category of prerogatives set out in this list. This is particularly true in this case because Lord Roskill states that it is prerogatives ‘relating to’ any of the above list that are in this category – this obviously includes prorogation which is historically connected to dissolution.

It is also worth noting that in the later case of Everett, a ‘high policy’ test for the prerogatives on the list was instituted, and that test has never been doubted. Indeed, in Abbasi, Lord Phillips MR expressly endorsed the ‘high policy’ test in considering the actions of the government under the foreign affairs prerogative.

Lord Phillips also used the phrase ‘forbidden areas including decisions affecting foreign policy’ ([106]) which also underscores the unlikelihood of any judicial intervention in matters as controversial and politically explosive as a political decision to prorogue parliament to achieve a No Deal exit. It is perhaps also worth mentioning that, in this particular case, a decision to prorogue would have direct and dramatic effects on foreign policy.

It is suggested therefore that prorogation would therefore fall well within the ‘high policy’ test given the intense political controversy that would surround such an action. It is therefore extremely challenging to see how such advice could be justiciable on any orthodox reading of long established case law. This rule arguably rests, in large part, on a point blank refusal to be drawn into controversial political matters. This deeply wise judicial instinct is strongly to be commended.

Argument from Miller?

It might be thought that the justiciability argument must be tempered by the fact that in Miller itself, a high policy prerogative (treaty power) was considered to be justiciable – indeed the justiciability argument was not even raised at the Supreme Court stage having been resoundingly rejected by the High Court. This would be to miss a crucial distinction between Miller and a potential prorogation. The courts have never held that a prerogative is non-justiciable when it is used in a way that intersects with a statute. In those circumstances, a completely different test is applied.

If statute overlaps with the prerogative, it goes into abeyance. Where a statute does not overlap, the test is whether the exercise of the relevant prerogative would frustrate the intention of parliament in any Act (Miller [51]). In such situations, the court is not concerned in any way with whether the nature of the prerogative concerns ‘high policy’. This is for the simple reason that statute trumps prerogative and it is the duty of the courts to see that the will of parliament as expressed in statute prevails. That is why the justiciability of the treaty prerogative was not an issue in Miller, despite it being on Roskill’s list.

Parliamentary Sovereignty means the will of parliament as expressed in statute

It is trite law that the will of parliament can only be understood through Acts of Parliament as a matter of law. Mere motions will not suffice. If they had, the motion in the House of Commons in December 2016, calling for notification under Article 50 to be sent, would have disposed of the Miller litigation.

Lord Pannick’s appeal, therefore, to the generic idea of ‘parliamentary sovereignty’ must therefore be approached with some caution. Parliamentary sovereignty means nothing more, and nothing less, than that each and every Act of Parliament that is on the Parliamentary Roll is supreme over any other law or legal power. In other words, whatever the Crown-in-Parliament formally enacts is binding law, save that Parliament cannot bind its successors.

It follows that if Lord Pannick could identify a particular provision of a statute that would be frustrated then the objections based on justiciability would immediately dissipate. Unfortunately, it is difficult to identify any such statutory provision. Instead, the much more nebulous language of ‘evading parliament’ is deployed. This leaves his argument looking somewhat thin.

The problem is that isolating a sound legal argument from ’evading parliament’ is difficult, whatever the constitutional and political arguments. This is not least because there is no particular statute to which reference could be made. Evading political scrutiny and debate is not a legal argument.

It seems unlikely that the courts would declare something unlawful based on it frustrating a provision of a non-existent Act that the courts would be predicting parliament might pass at some unknown time in the future. That would be to extend the principle in Fire Brigades Union by some distance, to put it mildly.

Lord Pannick goes on to claim that one aspect of the claim would be that, in his view, parliament has ‘made clear its wish to prevent a no-deal Brexit’. This particular claim is hard to follow. Nowhere in EUNoWA, EUWA or elsewhere has parliament made clear in legislation that in the event of there being no deal agreed with the EU27, the government is legally required to take steps to prevent the UK exiting the EU on  that basis. It is true that a number of motions of the House of Commons have expressed that sentiment or similar but that is entirely another matter and, strictly speaking, irrelevant as a matter of law.

It could be argued that the silence in relevant statutes on any legal steps to be taken in the extensive legislation that has been passed since the referendum simply reflects the fact that few people expected that No Deal could actually happen. This is a reasonable stance. Nevertheless, it remains the case that the Article 50 process is in fact inexorable and (leaving aside revocation) remains outside the direct control of parliament, particularly if, say, the EU27 decided not to grant another extension.

It is also the case that there are no provisions altering the legal default outcome (for example by mandating a revocation) in the event that there is no agreement with the EU27 regarding the orderly withdrawal of the UK from the EU. The only possible exception might be the Cooper-Letwin Act which mandated the Prime Minister to seek an extension from the EU27 (I am grateful to Gavin Phillipson for suggesting this point in conversation).

It might be argued that this represents evidence that the will of parliament is that a delay is preferable to exiting without a deal. The problem with this argument is that Cooper-Letwin was very specific in terms of how and when it applied and its provisions are now spent. Really, the Act needed to have made further provision for the legal consequences in the event of No Deal. Attempting to read anything more into that Act seems implausible.

However alluring is the argument that the courts could step in, it is difficult to see how the exercise of the prerogative of prorogation in this case could be said to conflict with any particular provision of any statute.

Breaking new legal ground 

Given the strength of the judicial dicta against Lord Pannick’s position, it would require an innovative and bold approach by the judiciary for any case to succeed. The courts would have to construct a novel rule that the mere possibility of Parliament wishing to pass some future legislation means that a purely political prorogation would be unlawful. This possibility cannot be ruled out but it would drive a coach and horses through long standing case law on justiciability, with unknown future effects.

Political controversy

The idea of the courts ensuring that parliament can do its core job of considering Brexit throughout the Autumn is undeniably attractive. It is suggested, however, that the courts would be rightly reluctant to intervene in such an intensely controversial political question, especially without the protection of an existing Act of Parliament that intersects directly with the relevant prerogative. To do so would be to draw the judiciary into the centre of a political firestorm. However politically controversial a prorogation might be, judicial intervention would only make the situation worse. Two wrongs do not make a right.

In those circumstances, reliance must be placed on the relevant parties being persuaded that advising HMQ to prorogue would be deeply politically and constitutionally inappropriate, rather than illegal or ultra vires.

Conclusion

This post has sought to address the possibility of litigation to challenge the lawfulness of using the prorogation prerogative politically. The proposal suffers from serious flaws, not least lack of time. It has been argued that the use of the prerogative of prorogation is not justiciable as ‘high policy’ in a ‘forbidden area’.

It has also been suggested that the argument that parliamentary sovereignty would be frustrated by prorogation is flawed because there is no particular statutory provision that would be frustrated by prorogation.

Furthermore, it seems highly unlikely that the courts would be drawn into what remains, in a political constitution, a matter of purest politics that should be dealt with by elected politicians, when parliament reconvenes, or at the ballot box.

The author would like to thank Richard Ekins, Sir Stephen Laws QC, Gavin Phillipson, Meg Russell, Catherine Haddon, Tom Poole and Colm O’Cinneide for their helpful comments and suggestions. The usual disclaimer applies.

Robert Craig is an AHRC doctoral candidate and part time tutor in law at Durham Law School, Durham University and at LSE, Department of Law.

(Suggested citation: R. Craig, ‘Judicial Review of Advice to Prorogue Parliament’, U.K. Const. L. Blog (12th Jul. 2019) (available at https://ukconstitutionallaw.org/))

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Episode 46: Meanwhile in Belgium… becoming Belgian to stay European?

iFrame:

Michaela is joined by Djordje Sredanovic, Newton International Fellow at the University of Manchester. They talk about his recent research into the impact of Brexit on the experiences and orientations toward naturalisation in particular, the meaning and significance placed on this by British citizens living in Belgium. He describes how discussions over whether to apply for naturalisation are complex, at once pragmatic and caught up in deeper questions about Britishness, Europeanness, identity and belonging.

This episode is available to download here.

The post Episode 46: Meanwhile in Belgium… becoming Belgian to stay European? appeared first on Brexit Brits Abroad.

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Episode 45: Brexit, British People of Colour in the EU27 and Everyday Racism in Britain and Europe

This week, we’re bringing you something a bit different. Recorded at the recent British Sociological Association conference, Michaela and Chantelle present their recently published work on what Brexit means to British People of Colour living in the EU27. This shifts focus to their experiences of Brexit and how this is located in personal histories of institutional, structural, state and everyday racism. As they argue, placing these narratives centerstage deepens understandings of the relationship between Brexit and racism, permitting a view into how it is caught up in longer histories of racism in Britain but also in Europe.

This episode is available to download here.

The post Episode 45: Brexit, British People of Colour in the EU27 and Everyday Racism in Britain and Europe appeared first on Brexit Brits Abroad.

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