David Gauke: Covid-19. Conservative MPs should fear for their seats if they push for a Sweden-style policy – just as deaths are rising

10 Oct

David Gauke is a former Justice Secretary, and was an independent candidate in South-West Hertfordshire at the recent general election.

Conservative MPs are restless. There is widespread disappointment with the Prime Minister, it is reported, with senior members of the 1922 Committee not just rebelling, but leading rebellions.

There are two sets of concerns about Boris Johnson. The first is that he is displaying insufficient grip, that he is a bumbling, incompetent figure unsuited to the role of Prime Minister at a time such as this.

The second is that his strategy on Covid-19 is wrong, and that he should be pursuing one that is based on living with the virus and allowing the economy to grow.

It would be fair to say that I am not a natural cheerleader for the Prime Minister but, on this occasion, I have limited sympathy for these MPs.

First, when it comes to competence, what exactly did they expect? I had plenty of discussions with my then colleagues about the attributes of the leadership candidates last summer. I do not recall anyone making the case that Boris Johnson would have a mastery of detail, or a command of the administrative challenges with which any Prime Minister has to deal.

They knew his limitations and were content to foist him upon the British people as their head of Government (a decision with which the British people were sufficiently content to give the Conservatives a big majority). I happen to think that Tory MPs and members should value competence in their leaders, but it is a bit late for that now. If competence was essential, there were always better options.

On the second complaint – that his Covid-19 strategy is too restrictive – there is a much stronger case to be made that this is not the Prime Minister for whom many voted. I touched on this in my last column on this site and it is true to say that he has not approached the Coronavirus with his characteristic carefree joie de vivre. But let us put ourselves in Johnson’s shoes.

He was widely criticised for locking down too late in March, with the consequence that, for a time, the UK was an outlier in terms of excess deaths. He is being advised that we are heading for a second wave of hospitalisations and deaths. The majority of scientists in this field, including his Chief Medical Officer, Chief Scientific Officer and SAGE, are calling for tighter restrictions. The devolved administrations are also going in that direction, and England taking a radically different position would put a strain on the union.

Yes, deaths remain low but they are rising. Let us not forget that on 23 March there were 48 Covid-19 deaths. Eighteen days later, 940 people died from it in the UK on a single day. An exact repetition is unlikely – treatment has resulted in lower mortality rates and cases are now disproportionately amongst the young – but, in all likelihood, we are going to see a substantial rise in deaths in the next few weeks.

It is true to say that the existing restrictions – let alone the new ones that will be announced shortly – severely diminish many people’s quality of life. It is very far from being cost-free. And there are alternative strategies put forward by a small number of reputable scientists. Serious people are making the case for the ‘Swedish approach’ and, for what it is worth, although very sceptical about this being the right answer, I happen to think that the Swedes got it right on schools.

However, I really do have to question their political sense of those Conservative MPs calling for the adoption of the Swedish approach,  The polling shows that further restrictions are popular – and that is before the death-rate starts to climb.

It might be callous to think about such matters in crude party political terms, but it is part of the job of a Party leader to calculate the implications of any policy. It is pretty obvious that the Prime Minister will have reached the conclusion that maintaining a relatively light-touch regime would leave him and the Conservative Party extremely vulnerable. The recent collapse in polling support for Donald Trump – especially amongst the elderly – should be a warning.

Just imagine the situation if, in a month’s time, deaths are running at several hundred a day after the Government had announced that, contrary to the advice of its scientists, it had decided to pursue a strategy of relaxing restrictions for England at the very point at which every other comparable country (and, indeed, every other nation in the UK) had tightened them.

It is hard to see how any Government, if it could survive, would come back from an approach that would be so spectacularly unpopular. Of course, the Prime Minister is not going to adopt such a strategy. And, on this point, I think that he will quickly see off his critics.

I can hear the counter-argument. “Lock down restrictions might be popular but they are economically disastrous. It is causing enormous damage to business which will soon feed through into people’s livelihoods. Conservatives should be prepared to take the tough decisions necessary to ensure we create wealth – even if unpopular. Without that wealth creation, everyone will suffer.”

By and large, I am usually sympathetic to arguments that put the economy first. Creating wealth is a pre-requisite to raising living standards (especially for the poor) and delivering high quality public services. And sometimes you have to take unpopular decisions – getting the public finances on a sound footing whilst maintaining a competitive business tax system, for example – in order to deliver that economic growth.

But there are a couple of problems with this argument. First, if the virus takes hold, it will not matter whether pubs have to close at 10pm, 11pm or 12pm. People will not want to go to the pub or restaurant, cinema, shop or office. Most of the economic damage caused by a virus is driven by people voluntarily changing their behaviour.

Second, if Conservative MPs are worried about the economy and business-damaging policies that will damage the UK’s capacity to create wealth, some of them might want to have a think about what they have been doing for the past four or more years in terms of our relationship with the European Union. They might also consider that, when it comes to the long term health of the UK economy, ensuring that the UK has a sensible deal in place before the end of the transitional period would be a better focus for their energies.

The three testing days for Johnson coming up in the Commons. (Or two and a half at least.)

28 Sep
  • Today, there is a general debate on Covid-19.  That will give the Government’s backbench critics who want a Sweden-style approach a chance to make their case.  It will be well worth watching to see how many put it; how strongly; and how many Tory backbenchers make the counter-case for lockdowns, which polling suggests have strong public support.
  • Tomorrow comes the remaining stages of the UK Internal Market Bill – and so also the revolt against it headed by Theresa May.  The Government’s concession of an eventual Commons vote on any safeguarding measures that might be argued to break international law, in the event of No Deal on trade, has won round such discontented MPs as Geoffrey Cox, Damian Green and Bob Neil.  We will see tomorrow evening how many others vote against the Government or more likely abstain on Third Reading.
  • Wednesday sees the second reading of the Non-Domestic Rating (Lists) (No.2) Bill.  The main bone of contention is likely to be the permission it would grant for two-storey extensions to homes and tower blocks to go ahead without planning permission.  That’s unlikely to provoke a mass backbench revolt.  But the debate will be worth watching to see how many backbenchers pile in to criticise the coming planning reforms that will bring about more housebuilding in shire Tory seats.
  • Finally, there is the renewal of the Coronavirus Act’s temporary provisions – and the Brady amendment seeking more Parliamentary control.  It’s not clear as we write whether or not the Speaker will select it for debate.  The Government appears to be holding back any concessions, in case it isn’t chosen after all.

David Gauke: Johnson’s Covid policy – and why it’s opening up a rift between him and his traditional Tory supporters

26 Sep

David Gauke is a former Justice Secretary, and was an independent candidate in South-West Hertfordshire at last year’s general election.

For an amendment of no legal force that may not even be called, Graham Brady’s proposal that there should approve in advance any Covid-19 restrictions is of real significance.

On the face of it, it is an amendment that is more about process than substance – the extent to which Parliament, rather than just the executive, has a say on future restrictions. But in reality, it also exposes the divide between the position of the Government – and the Prime Minister in particular – and many of his Parliamentary colleagues on how far we should go in attempting to stop the spread of the virus. For the first time in many years, Boris Johnson’s position puts him at odds with the instincts of many on the right of the Conservative Party. What is more, his position appears to put him at odds with his own instincts.

The Coronavirus crisis has been immensely difficult for the Prime Minister. In part, that has been due to his own ill-health that took him out of action at the peak of the virus, and from which he has made a slow and painful recovery (although, from what I hear, he is now physically in good shape).

t has also been a crisis that has exposed his longstanding inability to grasp detail. A Prime Minister was needed to get Whitehall focused on the virus in February, identify and prioritise testing and tracing and spot that the Department for Education was heading for a fall with its approach to exam results. On all these issues, he appears to have been absent.

However, I suspect that the most challenging aspect of recent months for Johnson is that he has felt compelled to do things that alien to his normal approach to life. By restricting the freedoms of his fellow citizens, he is not acting like the great admirer of Mayor of Amity Island, the foe of the doomsters and gloomsters, the critic of pettifogging bureaucrats, the ‘freedom-loving, twinkly-eyed, Rabelaisian character’ for whom Toby Young – and many others – voted.

Why has this happened? His own experience of the virus may be a factor, but one can only conclude that he has been convinced that there is a real risk that, without further action, the virus will spread more widely – including to the vulnerable, and that this will result in very large numbers of deaths. Given the widely-held view that we locked down too late in March, this would not just be a health disaster but a political one as well.

His libertarian critics argue that these measures are panicked and unnecessary. There is anger over the projections of a weekly doubling of cases (a much worse trajectory than France and Spain have followed). Some point to Sweden or Brazil – countries that have been hit hard, but now have falling or stable levels of infection – to argue that herd immunity comes quicker than we previously thought, perhaps because of T cell immunity.

Maybe these critics are right; I certainly hope that they are. There are reputable scientists who are making the case, and we all want to believe those that are telling us that it is all going to be alright. But there are also reputable scientists who are making the opposite case, who are arguing that we should be tightening up further and faster (a view, incidentally, that has a lot of public support).

This is where the job of Prime Minister is a difficult and lonely one. I think we all know where Johnson would stand on this issue if he were still a Daily Telegraph columnist. We can also take a good guess as to his approach if someone else was Prime Minister, and he was an ambitious backbencher with a desire to free the ball from the back of the scrum.

But he is not a columnist nor a backbencher but the person who has t person who has to make the decision. And unlike some decisions that a Prime Minister might make, if he gets it wrong the consequences will be both enormous and very quickly apparent to all.

So when faced with advice that the virus was now spreading strongly and that, without intervention, deaths would soon rise substantially, Johnson acted in much the same way as any recent Prime Minister would have done. Maybe his libertarian instincts softened some of the new restrictions, but essentially he has made a decision to be risk averse; to be conventional.

This is not the first time during the pandemic that he has reached that conclusion. But it has also been obvious that this sits uneasily with him. He does not like restricting people’s liberties (not a bad quality, by and large) and he likes to tell people good news. He has promised we would have this licked by July and then by Christmas. He has urged us back to our offices when it was predictable (indeed, predicted  that he would soon have to reverse that advice. Even on Tuesday, he seemed to consider it a matter of national pride that we, as a great freedom-loving people, have not been following the rules. The old Johnsom instinct is hard to suppress.

The consequence of this internal conflict is inconsistency and muddled messages. His natural supporters – those who value freedom and independence from the State and are most sceptical about the advice of experts – are in revolt. This has manifested itself in signatures for the Brady amendment. There are signatories from across the Conservative Party spectrum, but they notably include big Brexiteer beasts such as David Davis, Iain Duncan Smith, Steve Baker and Bernard Jenkin. These could be dangerous opponents.

Of course, Covid is not the only issue where the Prime Minister is going to have to make a big choice in the next few weeks. Does he make the necessary concessions in order to conclude a Free Trade Agreement with the EU before the end of the transition period? Yesterday, James Forsyth suggested that a deal was close and that the UK might take a more flexible approach to the negotiations, choosing to fight some battles in the future (‘you have to make it through the short term to get to the long term’ says James, using language that will sound very familiar to anyone who served in Cabinet with Michael Gove in 2018-19).

The piece suggests that the Prime Minister is ‘totally focused on Covid’. But he will soon have to make a choice. On the one hand, he will be receiving advice from officials that the adverse consequences of No Deal are very significant, especially for a fragile economy. On the other hand, his instincts presumably tell him that this is all over-stated gloomsterism.

The Prime Minister knows that the instinct to take a risk, to chance it, to tell the experts to go to hell, is very strong both within himself and amongst many of his Parliamentary colleagues. He is already defying those instincts on one issue. If he is to take the necessary steps to get a Brexit deal (and I hope he does), he is going to have to defy those instincts on a second issue, too. Given that he is already in danger of losing his hold over his traditional allies, it is not obvious that he will.

Bill Cash: We would be within our rights to override the Withdrawal Agreement. And in any event, the EU itself is a law-breaker.

21 Sep

Sir William Cash is Chair of the European Scrutiny Committee, and is MP for Stone.

Disraeli, the inspiration of One Nation, predicted in 1838 that “the continent will not suffer England to be the workshop of the world”. He wrote Sybil – or A Tale of Two Nations, mirroring much today. Our manifesto in the general election to level up the more deprived areas in Britain demonstrates why the whole United Kingdom must be freely competitive in global trading – guaranteeing our jobs and businesses (and given Covid).

The EU pursues a cardinal principle: that we must not benefit from Brexit. Its origins lie deep in the supranationality of the EU treaties themselves and, originally, of the Commission and the European Coal and Steel Community. In Sheffield, I witnessed the destruction of our steel and coal industries, thanks to the unfair and discriminatory EU state aid regime.

Recent misconceptions have been generated in Parliament and outside regarding our compliance with international law. This comes in many shapes and sizes, and is often 60 per cent politics, 40 per cent law. The Internal Market Bill provides that the Government may need to override Withdrawal Agreement provisions derived from bad early negotiations.

There are dozens of documented overrides of international treaties worldwide by democratic countries without penalty. According to the German Federal Constitutional Court in 2015, international law leaves it to each state to give precedence to national law.

There are numerous statutory precedents in the UK, such as the Finance Act 2013, relating to anti-abuse tax powers, and whether UK prisoners could vote in elections. As the Attorney General stated in her published legal position, Parliament’s capacity to override international agreements was unanimously approved by the Supreme Court in the Miller case, and through clear “notwithstanding” provisions in Section 38 of the European Union Withdrawal Agreement Act 2020.

Lord Diplock ruled in 1968 in a Post Office case that Government “has a sovereign right, which the court cannot question, to change its policy, even if this involves breaking an international convention to which it is a party and which has come into force so recently as fifteen days before”. Laying a Bill is not a breach of international law. and is privileged. If a treaty is entered into on the reasonable assumption that a state of affairs would exist which does not transpire, the treaty is voidable.

The Withdrawal Agreement was written on the basis of recognising our sovereignty – which has not happened. This UK Internal Market Bill is a necessary insurance policy preventing us from subjection to EU jurisdiction, and ensures the necessary competitiveness upon which the jobs and businesses of every voter in every constituency depends, with our own state aid rules.

The EU itself frequently violates international law, as demonstrated by its own fishing policies in the waters of occupied Western Sahara.

Likewise, the EU’s penchant for instructing member states to defy Security Council rulings. So, too, sending migrants back to North Africa and Turkey. In 2010, the EU broke the Lisbon Treaty. Christine Lagarde admitted that “we violated all the rules” over the Greek and Irish bailouts. The EU is now unilaterally changing the bilateral Channel Tunnel Treaty without our being able to prevent it. The EU has demanded jurisdiction over crucial aspects of UK sovereignty, despite our lawful exit, as a precondition to concessions on trade. It has threatened to use WTO’s “most favored nation” principle against the UK – contrary to state practice, core principles of world trade and requirements to negotiate “in good faith”.

Look, too, at the track record of EU Member States. Germany blatantly breached international law when, during the EMS in the 1970s, it released the Bundesbank from the duty to intervene against the dollar. The then Chancellor, Helmut Schmidt, stated: “we breached applicable international treaty law, the IMF treaty, in multiple ways. We have neither complied with all the rules, the procedural rules of the treaty, nor have we complied with the substantive provisions.”

Angela Merkel suspended the Dublin Regulation unilaterally in August 2015, letting into Germany up to 600,000 Syrians. In 2020, Germany’s highest court ruled on the European Central Bank’s public sector purchase programme, subordinating EU law to German law. The EU took no action.

The undemocratic European Commission threatens to take legal action against the UK for what is not even an established breach of international law. They dare to tell our democratic sovereign Parliament to abandon essential proposals in this Bill. What a nerve.

Curfews will accelerate the decline of the nightlife industry

18 Sep

Over the last week or so, as cases of Coronavirus have begun to rise, a horrible word keeps coming up in the news and elsewhere. That is: “curfew(s)”.

Already this term has become a reality for Bolton, and today in parts of Lancashire and Merseyside, where pubs, bars and restaurants are only allowed to open for takeaways until further notice – and must shut altogether between 10pm and 5am.

Newspapers have teased the nation with the prospect of even more closures. Indeed, Wednesday’s Evening Standard headline was “London curfew alert to prevent a new wave”, as this is apparently under consideration to “short-circuit” the virus. 

Worse still, the public seems fine with it. One YouGov poll indicated that 69 per cent of Brits would support a 9pm (which no one has even suggested as a time!) curfew on pubs and bars.

While one sympathises with the Government – which has to make enormously difficult decisions and whose first priority is to protect people from Coronavirus – the latest curfew measures will only convince some businesses of how little Britain values its nightlife industry, which will suffer even more under the new rules.

Although there were some positive developments during Covid-19 – al fresco dining being a fantastic one – nightlife has been under strain for many years, with businesses increasingly stifled by regulatory measures (such as the Late Night Levy and Public Space Protection Orders, which I have written about before for ConservativeHome).

There’s also overzealous councils. In London, one Soho bar owner recently told me he cannot open his roof terrace – a fantastic space that would attract lots of business – because of one resident who complains about the noise (who knows why they live in Soho). “Councils always side with residents”, he told me.

(Furthermore, he suggested that some residents actively want to drive nightclubs out, as it brings up the price of their properties. But that’s a story for another day).

Big names in the sector have already made urgent statements about the threat they face due to Covid-19 measures. Sister Bliss, a musician from the band Faithless, recently warned that UK nightclubs had been “left to rot in a corner”, and 1,500 artists signed an open letter calling for more support.

While a £1.57 billion Culture Recovery Fund has been unveiled by the Government, there has been uncertainty about where the money will go. But given the way clubs have been ignored over the years, I would be surprised if they saw much of it. It’s just not an industry that sparks much of a concerned response from policymakers, which is a shame – as it has massive economic potential.

It even has ramifications, believe it or not, for Brexit. What hope does the country have of being “Global Britain” if it’s boring for young people to go out in? They will head to other parts of Europe, such as Barcelona and Berlin, where the party is getting started at the same time British pubs are closing. That’s why it’s so extraordinary to have curfews – as there already seem to be de facto ones in place.

Of course, recent rises in cases are troubling, and the Government no doubt sees targeting nightlife as the main way to stop Covid-19 spreading, particularly through young people. But I fear this will push the sector over the edge, with huge job losses and business closures coming soon, not least because of the uncertainty created by reopening and closing the economy repeatedly. These new rules should make us seriously question – what will there eventually be to return to?

Both Johnson and the rebels want a compromise on the UK Internal Market Bill – so it looks as though we’ll get one

16 Sep

As we reported yesterday, Boris Johnson told the Commons on Monday that, in the event of the so-called safeguard provisions that are contained in the UK Internal Market Bill being triggered, “Ministers would return to this House with a statutory instrument on which a vote…would be held”.

This was one of the five proposals made by Geoffrey Cox, but it doesn’t satisfy all those who are unhappy with the measures.

The statutory instrument would presumably be considered under the affirmative rather than the negative procedure but, even so, it would be debated after the provisions came into effect, not before – and proceedings would be relatively brief.

The clauses of the Bill that propose the provisions won’t be debated until next week, so much could change during the days ahead.  But as we write, a compromise is taking shape.

The backing-off from Brandon Lewis’ statement of last week by the Government has gathered pace, with Priti Patel denying yesterday that the measures would break the law at all.  Meanwhile, most of those who abstained on Monday are also in a mood for compromise.

Essentially, they agree with Cox that the UK should be able to implement “temporary and proportionate measures” to protect “the fundamental interests of the UK” if necessary.

These would arguably be lawful; certainly not indisputably unlawful. An agreement between Johnson and the rebels would bring a double gain for the Government.  First, it would reduce opposition to the Bill, thus sending the Lords a clear signal that they shouldn’t hold it up.  Second, it would also send one to the Courts about the will of Parliament.

So it looks as though we are roughly in the territory suggested by this site on Monday – if not Government acceptance of Bob Neill’s amendment, then its support for something very like it.

Daniel Hannan: Voters tend to get some things wrong, but the big things right. So it is with the Internal Market Bill.

16 Sep

Daniel Hannan is a writer and columnist. He was a Conservative MEP from 1999 to 2020, and is now President of the Initiative for Free Trade.

As usual, the public has reacted to Westminster’s hysterics with an amused shrug. Lawyers and diplomats, pundits and politicians, are in a frenzied rage about the Government’s announcement that it might violate the Withdrawal Agreement. In some cases, the rage is confected; but in most, it is genuine.

The country as a whole, though, takes an altogether more relaxed view. Where politicians get bogged down in detail, voters tend to see things impressionistically. They sense – correctly – that international law is protean and often disputed.

Countries are forever being charged with infracting this or that treaty. The EU, for example, is in breach of several trade agreements, ranging from its groundless bans on overseas agricultural produce to its illicit Airbus subsidies. It also frequently violates its own treaties, sometimes on issues of enormous consequence. The eurozone bailouts, for example, were patently illegal, not just in the sense that they had no basis in the European treaties, but in the sense that they were expressly prohibited. No one in Brussels tried to claim otherwise. Rather, they pleaded raison d’état.

So when British voters see Eurocrats fainting like so many affronted Victorian matrons, they just don’t buy it. They know that Brussels has negotiated in a bellicose spirit from the start. They sense the difference in tone between Michel Barnier and negotiators from, say, Australia or Japan, who are uncomplicatedly keen on maximising mutual gains.

Where Labour and a handful of Tories see a violation of international law, most voters see the people who have always backed Brussels doing so once again. No doubt John Major and Tony Blair think of themselves as distinguished elder statesmen cautioning their country against error; but I’m prepared to bet that most people’s reaction will be, “Well, they would say that, wouldn’t they?”

For what it’s worth, I think most of the Bill’s opponents have decent motives. Some, no doubt, are driven by personal rancour, or by a reflexive opposition to anything the Prime Minister does. Some are still sore about Brexit. But many have genuine worries about international law.

I happen to think they are wrong. First, the Bill itself doesn’t violate any laws: it merely creates an emergency mechanism by which the most damaging aspects of the Northern Ireland Protocol can be prevented. Second, the bits that Brussels dislikes would come into effect only if, despite all its promises, the EU failed to agree a trade deal. Third, even if it came to that, there is a strong argument that not taking preventative action would constitute a worse legal breach than taking it – in other words, that suspending some aspects of the Protocol would be a lesser infraction than violating the principle, affirmed both in the Belfast Agreement and in the Protocol itself, that Northern Ireland’s status cannot change without its consent.

This last point barely featured in the debates, but it strikes me as elemental. If there is a clash between legal obligations – if, that is, we can only apply aspects of the Protocol by breaking other laws, such as Article VI of the 1801 Act of Union – then we should give  priority to our domestic constitutional order. This is not some Powellite assertion of British exceptionalism. It is a widely-shared principle upheld by, among others, the EU.

For example, in its 2008 ruling on the Kadi case (involving a Saudi businessman whose assets had been frozen), the European Court of Justice reiterated its doctrine that “a treaty can never enjoy primacy over provisions (including protection of fundamental human rights) that form part of the constitutional foundations of the Union.” That is, of course, precisely the argument that the Attorney General has made in a UK context.

To be clear, I am not suggesting that lots of people have pondered ECJ precedent and concluded that the EU is applying a double standard. Rather, in a shrewd and largely instinctive way, people have sussed that Britain faces an ill-disposed and hypocritical negotiating partner which is making unreasonable demands.

That, ultimately, is why Boris Johnson will get his Bill. It’s not just that he is right to have acted as he has (though he is). It’s that the country is with him. The Internal Market Bill has lined up everyone against the Government – except the general population. That split – radical lawyers, Europhile politicians, unelected peers and woke actors versus everyone else – is one with which Tory strategists are comfortable.

This is emphatically not an argument for always following public opinion. Apart from anything else, we are a fickle species. We demand the strictest possible lockdown, complete with curfews, and then complain about the downturn. We ask for increases in public spending, but we will react with fury when the money runs out. The last thing we want, when confronted with the consequences of our own choices, is to be reminded of what we asked for. Gavin Williamson could no more say “but you all told me to close the schools” Tony Blair could say “but you all supported the Iraq invasion when it was launched”. As Dryden put it, “Crowds err not, though to both extremes they run”.

Governing by opinion poll fails in its own terms. But, over the cycle, people generally get the big calls right. Not always; but more often than the elites. Brexit was a case in point. So is the Internal Market Bill.

James Frayne: Do voters care about breaking international law, and if so, how much?

15 Sep

James Frayne is Director of Public First and author of Meet the People, a guide to moving public opinion.

How much of an electoral risk is the Government taking by threatening to break international law? There hasn’t, to my knowledge, been much published polling on the issue and I haven’t seen any qual either. I’m not sure how revealing any opinion research would be at this point, anyway. Not only is the issue highly complex, but the Government hasn’t communicated a settled position on its intentions – and, in turn, the issue has not been played out properly in the media or in Parliament.

The public have only seen complex snippets. It’s therefore extremely unlikely the Government’s threat to break international law will have had much of an impact on public opinion at all so far. This isn’t to say the issue isn’t important or won’t have an impact in time. But it’s much more useful to consider how opinion might change and what might change it. How might we anticipate this change? Six questions come to mind.

Will this just split down Leave-Remain lines? As we know from the 2019 election, most people are bored to death by never-ending negotiations to leave. As we also know, almost everything on the Brexit process splits down Leave-Remain lines. There’s almost no crossover, where Leavers take the side of Remainers on an issue and vice versa. The well has been poisoned; you just have to take the occasional peek at Twitter and see otherwise normal people spewing bile at each other over Brexit.

ConservativeHome has taken an unusual position here: it’s associated with Leave but has encouraged MPs to vote against the Government. How common will ConservativeHome’s position be? This is the crucial question. Until significant numbers of Leavers (particularly Conservative Leavers) come out and join ConservativeHome, it seems most likely that Leavers will tacitly back the Government. Public opinion would shift if more Leavers follow the Editor’s advice.

Will this just look like Brexit chaos? The entire Brexit negotiation process has been a massive fiasco. From the morning after the referendum, government on this has been a shambles. One of the reasons so many people wanted to ‘get Brexit done’ was because they wanted the chaos to go away. I wonder therefore whether many will just write this off as being just another cock-up. Government opponents will need to explain why this is a special case. At present, they haven’t yet been able to do this effectively, although the arrival of more senior Conservative politicians into the fray might change things somewhat.

Can the public ever be made to care about international law? International law is complex, of course. But my sense is that it can’t be simplified in the way those hostile to the Government’s threat are seeking to do. People like Blair and Major are talking about how Britain’s moral standing will be adversely affected and so on. While a reasonable point, there are two reasons this won’t work.

Firstly, because, Brexit partisans aside, and rightly or wrongly, most people still consider Britain to be a moral actor in the world; this alone won’t undermine that. Secondly, more importantly, because many believe other countries break international law all the time. That said, opinion would surely change if and when the public are confronted with the prospect of another country unilaterally changing a treaty they had agreed with us. (It’s also worth adding the straight reality that Tony Blair is hardly the best advocate for international law.)

What is the reputation of the law more generally? My very strong sense is that the English public have also lost respect for ‘the law’ more generally. They believe  the law no longer reflects natural justice and, that word again, fairness. Respect for the law has been slowly eroding for many years now, but it has been eroding very quickly in recent years. Increasingly, people have not only heard stories about pathetically weak sentencing, but they’ve also heard, in their eyes, perfectly reasonable Government policy decisions being unpicked by the courts.

The Establishment Left has claimed this shift in opinion amounts to a swing against an independent judiciary and the beginnings of a march towards a more political legal system. It’s nothing so thought-through; rather, people think the law no longer reflects right and wrong and therefore the accusation levelled at Britain – as being a law breaker – simply doesn’t have the same power that it once might have done

What do the public think about the EU’s behaviour during negotiations? It would be an exaggeration to say the mass of the public have followed Brexit negotiations closely. But, to the extent they have, my sense is that they think the EU has behaved with hostility towards Britain.

Varadkar, Barnier and Juncker seemed to revel in Britain’s difficulties during negotiations. The pro-EU British media liked to praise these politicians for this, on the basis they were teaching about the reality of its new position. But it was always going to be pointlessly destructive because it stored up English resentment that, when the time came, the Government would be able to tap into – as it now might well do.

Will the public cut slack to the Government over Northern Ireland? It’s important to consider the merits of the Government’s stated case – or, rather, what the public will think of these merits.

At one level, the Government has a very strong argument: it’s perfectly reasonable to argue Northern Ireland, as much part of the UK as England, should not be treated differently. The problem, of course, is that the Government initially said it should be treated differently and that it had secured a winning agreement.

Will the public rally behind Northern Ireland if the Government makes a case that the agreement is having unintended consequences, or will they think Northern Ireland isn’t worth the bother? There’s no question that unionist sentiment has faded in recent times; not because of a surge in English nationalism, but because of a sense that Scotland, particularly, wants to go its own way. The UK doesn’t seem the country it did even 10 years ago. Will English Leavers think the Government should therefore dig in in the way it seems to be planning?

What does all this mean? My sense is that, on current trajectory, the Government’s opponents will not be able to make this an issue the public care about (Covid obviously towers above everything at the moment) in time. The only way this will change is if Conservative Leavers are mobilised en masse – and if perceived historical allies start to question this behaviour too, mostly from the US, but also Canada and Australia. As it stands, it’s mostly been anti-Brexit voices who have made the running on this issue, which, as I note above, makes it look like just another day in BrexitLand.

The changes that Cox wants from the Government to the UK Internal Market Bill

15 Sep

ConservativeHome understands that the former Attorney-General, who expressed his reservations about the Bill yesterday in the Times, will support it were the Government to make five concessions.

These are concentrated on a guarantee to the Commons that the Government will not trigger the safeguarding measures save in the following circumstances.

  • A manifest breach by the EU of its duties with regard to good faith, best endeavours or both in the execution of the Withdrawal Agreement and the Northern Ireland Protocol.
  • If the arbitration panel set up under the terms of the Agreement rules that this has taken place.
  • Where pending a decision by the panel “it is urgent and necessary to take temporary and proportionate measures to the protect the fundamental interests of the UK”.
  • Under the safeguarding provisions of the Agreement itself (which both the UK and the EU are entitled to use).
  • After the Commons has voted to approve the implementation of the measures by passing a statutory instrument in the form of the affirmative resolution procedure.

In our view, two points arise from putting this list of proposals alongside the Bill as it stands.

  • First, the Government and most of its critics are now not that far apart.  Very few, if any, believe that no UK government should ever be in the position where it can be accused of breaking international law.  Most, like Cox, think that if necessary Ministers must sometimes take action that will lay them open to that charge (as in his third point above).  But they’re opposed to this Government declaring that the safeguarding measures would definitely break international law if applied when it’s not clear that these would.
  • Second, Boris Johnson appears to have conceded Cox’s last point by saying that “if the powers were ever needed, Ministers would return to this House with a statutory instrument on which a vote…would be held”.  That is consistent with the affirmative resolution procedure being used, as Cox wants.  However, a vote on a statutory instrument would only give the Commons the opportunity to bar the application of the measures retrospectively – not in advance.

So the Government is presently holding its line on not conceding such a vote.  But the safeguarding measures won’t be debated until next week.  And new compromise proposals or / and last-minute offers, sometimes made from the despatch box, have a way of emerging when controversial parts of Bills are being considered.

More broadly, the Government is distancing itself from Brandon Lewis’ claim in the Commons last week that the measures would breach international law if applied.  Though it has not disowned Lewis’ statement, Johnson suggested yesterday that the EU isn’t negotiating in good faith.

If so, that would make the legal position on any triggering of the safeguarding measures more complex.  But we repeat: they may never be implemented, since they won’t be in the event of these negotiations concluding with a deal, which is still possible – and arguably more likely than otherwise.

– – –

Playbook today lists 30 Conservative MPs who didn’t vote. The usual warning about absentions not necessarily being deliberate applies to the list below.  (So for example, Theresa May is abroad.)

  • Stuart Andrew
  • Crispin Blunt
  • Karen Bradley
  • Graham Brady
  • Rehman Chishti
  • Christopher Chope
  • Geoffrey Cox
  • Jackie Doyle-Price
  • Tobias Ellwood
  • Liam Fox
  • George Freeman
  • Richard Graham
  • Stephen Hammond
  • Oliver Heald
  • James Heappey
  • Damian Hinds
  • Simon Hoare
  • Sajid Javid
  • Edward Leigh
  • Jack Lopresti
  • Tim Loughton
  • Theresa May
  • Bob Neill
  • Owen Paterson
  • Julian Smith
  • Ben Spencer
  • John Stevenson
  • Gary Streeter
  • Charles Walker
  • Jeremy Wright

Gale and Percy oppose the UK Internal Market Bill’s Second Reading. Thirty-six Tory MPs don’t vote.

15 Sep

Only two Conservative votes against the Bill yesterday evening – Roger Gale and Andrew Percy.

A paltry number was to be expected, since most of those who oppose the safeguarding provisions, which the Government claims would break international law if applied, support the rest of the Bill.

Their aim therefore will be to amend those provisions during the committee stage of the Bill.

If they don’t succeed then, on paper, the Government would be close to losing Third Reading – were all those Tory MPs who didn’t back the Bill yesterday, plus all those who didn’t vote, then to oppose the Bill.

In practice, this almost certainly won’t happen, for three reasons.

First, not all those who didn’t vote will have abstained deliberately.  Some will have been ill, a few abroad, and so on.

Second, not all of those who did abstain deliberately will oppose the Bill at Third Reading if the amendments that they support fail.  Some will abstain, and some will end up supporting the Government, after all.

Finally, it appears from the Prime Minister’s speech during the debate yesterday that the main demand of the critics has been conceded in principle.

This is because suggested that all MPs will have the chance to debate and vote on the safeguarding provisions if they are ever brought into effect.  For further details, see our ToryDiary this morning.