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.

What could give the Government a sense of purpose – and chances to achieve? Making Gove Deputy Prime Minister.

18 Sep

Boris Johnson has a majority of 80, the Conservatives are still above 40 per cent in the polls, there is no leadership challenge pending, and there are still over four years to go until the next election.

But the Tory press this week is behaving as though none of that applies.  It hasn’t given up on the possibility of the Prime Minister winning in 2024.  However, it seems close to abandoning hope of him achieving anything substantial before then.

The joint catalyst of this development has been the Government’s adventures with international law, to which many voters are indifferent.  And its handling of the Coronavirus, to which they are not.  The common theme is that the country is all at sea, and that the captain has no sense of direction – or grip.

It may be that the media, some Tory MPs and Party donors are getting everything out of proportion.  The hysterical anti-Johnson hyperbole from the Remainer residue certainly muddies the waters.  To give an example almost at random, one prominent pro-Remain journalist once implied that Johnson’s Covid illness was faked.

None the less, ConservativeHome thinks that the critics have a point – and then some – for two solid reasons.  The first is all to do with the unique circumstances of last December’s election.  Johnson was elected to Get Brexit Done and spend a lot of money: at least, that’s what the hostage-free Tory manifesto suggested.

He has delivered Brexit as most voters see it (even if there is no trade deal), and his spending plans have been absorbed by the Coronavirus crisis, along with nearly everything else.  “Levelling up” is on hold.  So is the economy.  The manifesto had no programme for public service reform in any event.

If it had, the virus would make its delivery all but impossible. Covid means all hands to the pump, unless the Prime Minister is prepared to let the disease which put him in intensive care let rip.  That isn’t going to happen.  Global Britain may not either, at least if one means by it a coherent approach to China, Russia and radical Islamism.

The second reason is all bound up with Johnson himself.  We endorsed him last summer as “not the Prime Minister we deserve, but the Prime Minister we need right now”.  By which we meant that his character, gifts and personality are best shaped for campaigning rather than government.

Just before he made up his mind to declare for Brexit, he told friends that he was “veering all over the place like a shopping trolley”.  That captures the essence of how he works when trying to deliver many ends, as one must in office, rather than single one, as is the case in elections.

A shopping trolley can’t move on its own.  It needs someone to direct it.  That person is thought by those demented Remainers to be Dominic Cummings.  Certainly, parts of the Government’s programme are Cummings-driven: upending the civil service, challenging judicial power, overhauling procurement, “investing in science”.

But Cummings’ hands are only some of those on the trolley.  His old Parliamentary supporters, Simon Case, colleagues from his London mayoralty days, Carrie Symonds: all these and others push and pull at Johnson, who has no enduring ideology of his own to steer by, and can be as indecisive in private as he is bombastic in public.

We don’t mean to suggest that the Prime Minister has no beliefs.  He does, and his experience in City Hall has shaped them.  He wants to build more houses (good for him), invest in infrastructure, spend money on policing – and he has liberal instincts on immigration, as Government policy confirms.

But these are not so much convictions as impulses.  This is not the man to throw himself into the culture wars, as his response to the Black Lives Matter eruption confirms.  Rather, he is Lord Stanley, pitching in to the Bosworths of the conflict only when they’ve already been decided.  So it was with Churchill’s statue and the Proms.

The big point is that his response to Covid-19 is in deep trouble.  Success would see test and track taking the strain this winter.  Instead, regional lockdowns have already kicked in, and it’s only September.  The Government wants life at work to be as close to the old normal as possible, but life at home to be a new normal – under compulsion.

Hence marshalls, curfews and the rule of six.  Last spring, voters swung behind the Prime Minister as they’ve sometimes swung behind others when wars break out.  Now, there is war-weariness.  The winter is shaping up ominously and the Parliamentary Party is skittish.

At this stage in editorials, the usual course is to reiterate advice.  Appoint better Cabinet Ministers – not just people who voted for you.  Find an Andrew Mackay-type figure to take the backbench temperature.  Get a single, strong Party Chairman.

We add: forget trying to carry out, in current cirumstances, a spending review that looks more than a year ahead.  Concentrate on sorting testing, keeping schools open – and saving the Union; concede that turning the civil service upside-down will have to wait; prepare for a pro-EU Biden presidency.  But there is a fundamental problem.

Johnson just isn’t the man to exercise self-discipline outside an election campaign.  This is integral to what makes him so interesting: As Sasha Swire puts it, he has a “greatness of soul…and best of all a wonderful comic vision of the human condition. He is not like any politician I have ever encountered before, and I have met many.”

He will carry on boostering about moonshots, world-beating systems and (James Forsyth writes this morning) hydrogen.  It’s a form of manic defence.  A David Cameron would think tactically; a Margaret Thatcher strategically.  But the Prime Minister doesn’t think so much as intuit.  And will carry on doing so because that’s how he is.

Perhaps memory can reach where advice can’t.  Johnson has worked at his best when he lurches noisily forwards and someone follows quietly behind, carrying a dustpan and brush: Simon Milton in London (then Eddie Lister), Stuart Reid at the Spectator.  To put it more neutrally, he performs and someone else administers.

The safe, secure choice to do this now would be Oliver Dowden.  The one that would cause a sensation, explode a mass of leadership speculation and conspiracy theory, and drag up horrible memories of commitment and betrayal would be the psycho-dramatic appointment of Michael Gove.

The media’s field day could last for the rest of this Parliament.  But in the meantime, Gove would get on with what he does better than any Minister other than perhaps Rishi Sunak: strategic thinking – and messaging – government with a purpose, and zeal for reform.

The planned New Year reshuffle would be the right time for the change, though we admit that it almost certainly won’t happen.  All the same, the Government’s shaping up to be in its own bleak midwinter by then.  Sure, the next election is there to be won.  And never underestimate Johnson’s strange bond with a big slice of the British people.

But getting the state’s creaking machinery up to responding to Covid, let alone achieving much before 2024, depends on him doing what all of us find it hardest to do: changing what he does; almost who he is.

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.

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.

Iain Dale: Why have Buckland and Braverman signed up to breaking international law?

11 Sep

Iain Dale presents the evening show on LBC Radio and the For the Many podcast with Jacqui Smith.

Few people believe in Brexit more than I do, but I also believe in the rule of law. Quite how a democratic government can brazenly admit that it intends to break the law, albeit in a “strictly limited and specific” way, is quite beyond me.

The Supreme Court must be licking its lips in anticipation. Perhaps that’s part of the reason the new Bill is being introduced. I’d like to think that no one in Downing Street would wish to deliberately foment yet another clash between the Executive and the Judiciary, but anything is possible.

Rather than introduce this squalid Bill, it would have been far better to say that in the event that the EU doesn’t meet its pledge in the Political Declaration – to come to a Free Trade Agreement – then the Withdrawal Agreement ceases to apply.

At least this would have had some logic to it, even if it would still be incendiary. Countries often withdraw from Treaties – the EU did this themselves with Switzerland not too long ago, when they object to how the Swiss had voted to limit EU migration into the country.

But to introduce this new Bill without even using the mechanisms for discussion set out in the Withdrawal Agreement is an audacious move to say the least. Those, like John Major, who predict that this will affect trust in Britain into the future and make trade agreements less likely, certainly have a point. It’s hard to argue about the logic of that position.

It may be that I’m wrong. It may be that these hardball tactics with the EU will result in them rushing to an agreement. I hope they do, but I have more doubts about that than I did a week ago. Michel Barnier was on the ropes, but this move will have given him a renewed spring in his step.

What puzzles me is how Suella Braverman and Robert Buckland signed off on this. Perhaps we will find out in the Sunday Times, where I hope Tim Shipman has one of his long reads about how this came about. Because I, for one, am totally perplexed and somewhat horrified.

– – – – – – – – – –

I just knew it. On Wednesday, when the Prime Minister announced the new Coronavirus restrictions, I predicted to a colleague that one of the big beast political journos would ask a question purely designed to get themselves a headline, and sure enough the task fell to Robert Peston to ask the Prime Minister if he was effectively cancelling Christmas.

I expected it to be a headline in The Sun yesterday but even The Times sunk to the depths too. This is what political reporting has come to. Slow handclap.

– – – – – – – – –  –

One thing the Coronavirus crisis has made us all realise is that we are no longer a United Kingdom. The other constituent parts of the country seem to have revelled in doing things differently to the Westminster government.

In some cases, this has been entirely justified, but much of the time it has been gratuitous. Given that all four nations make their policies from the same data, sometimes one is left scratching one’s barnet at the different decision that are arrived at.

No wonder many people think there’s a lack of clear messaging from government. You’d think the four health ministers could have a Zoom call and agree a way forward, wouldn’t you? And if they can’t then explain why one part of the country is acting differently to another. Perish the thought.

– – – – – – – – –  –

Today is the nineteenth anniversary of the event which helped shaped the world we live in now. It was the day when Islamist terrorists seized control of a series of plans on the eastern seaboard of the United States, and caused the death of more than 3,000 people.

The date is stained into history as 9-11. Next year’s 20th anniversary will be a more significant one in many ways, as America and the world continue to try to come to terms with what happened, and the consequences we are still living through now.

It’s not an exaggeration to claim that most of the terror attacks we have experienced in this country, and many around the world, would not have happened without 9-11. It’s a sobering thought

Iain Dale: Why have Buckland and Braverman signed up to breaking international law?

11 Sep

Iain Dale presents the evening show on LBC Radio and the For the Many podcast with Jacqui Smith.

Few people believe in Brexit more than I do, but I also believe in the rule of law. Quite how a democratic government can brazenly admit that it intends to break the law, albeit in a “strictly limited and specific” way, is quite beyond me.

The Supreme Court must be licking its lips in anticipation. Perhaps that’s part of the reason the new Bill is being introduced. I’d like to think that no one in Downing Street would wish to deliberately foment yet another clash between the Executive and the Judiciary, but anything is possible.

Rather than introduce this squalid Bill, it would have been far better to say that in the event that the EU doesn’t meet its pledge in the Political Declaration – to come to a Free Trade Agreement – then the Withdrawal Agreement ceases to apply.

At least this would have had some logic to it, even if it would still be incendiary. Countries often withdraw from Treaties – the EU did this themselves with Switzerland not too long ago, when they object to how the Swiss had voted to limit EU migration into the country.

But to introduce this new Bill without even using the mechanisms for discussion set out in the Withdrawal Agreement is an audacious move to say the least. Those, like John Major, who predict that this will affect trust in Britain into the future and make trade agreements less likely, certainly have a point. It’s hard to argue about the logic of that position.

It may be that I’m wrong. It may be that these hardball tactics with the EU will result in them rushing to an agreement. I hope they do, but I have more doubts about that than I did a week ago. Michel Barnier was on the ropes, but this move will have given him a renewed spring in his step.

What puzzles me is how Suella Braverman and Robert Buckland signed off on this. Perhaps we will find out in the Sunday Times, where I hope Tim Shipman has one of his long reads about how this came about. Because I, for one, am totally perplexed and somewhat horrified.

– – – – – – – – – –

I just knew it. On Wednesday, when the Prime Minister announced the new Coronavirus restrictions, I predicted to a colleague that one of the big beast political journos would ask a question purely designed to get themselves a headline, and sure enough the task fell to Robert Peston to ask the Prime Minister if he was effectively cancelling Christmas.

I expected it to be a headline in The Sun yesterday but even The Times sunk to the depths too. This is what political reporting has come to. Slow handclap.

– – – – – – – – –  –

One thing the Coronavirus crisis has made us all realise is that we are no longer a United Kingdom. The other constituent parts of the country seem to have revelled in doing things differently to the Westminster government.

In some cases, this has been entirely justified, but much of the time it has been gratuitous. Given that all four nations make their policies from the same data, sometimes one is left scratching one’s barnet at the different decision that are arrived at.

No wonder many people think there’s a lack of clear messaging from government. You’d think the four health ministers could have a Zoom call and agree a way forward, wouldn’t you? And if they can’t then explain why one part of the country is acting differently to another. Perish the thought.

– – – – – – – – –  –

Today is the nineteenth anniversary of the event which helped shaped the world we live in now. It was the day when Islamist terrorists seized control of a series of plans on the eastern seaboard of the United States, and caused the death of more than 3,000 people.

The date is stained into history as 9-11. Next year’s 20th anniversary will be a more significant one in many ways, as America and the world continue to try to come to terms with what happened, and the consequences we are still living through now.

It’s not an exaggeration to claim that most of the terror attacks we have experienced in this country, and many around the world, would not have happened without 9-11. It’s a sobering thought

Bernard Jenkin: If necessary, we must pass legislation that will nullify the direct effect and direct applicability of EU laws

11 Sep

Bernard Jenkin MP is Chair of the Liaison Committee, and of the ERG Steering Group. He is MP for Harwich and North Essex.

The Bill to regularise the trade of goods and services within the UK is part of taking back control from what is still regulated by the EU, while we are in transition to full independence. The UK Internal Market Bill was published yesterday.  All it does is to legislate for the uncontroversial principle that all goods produced in any part of the UK should be treated equally.

However, it also sets out to protect this principle from potentially damaging interference from the EU, and makes provision for the UK to insist on the right of UK self-government and an end to the application of EU laws in the UK.

The Northern Ireland Protocol (NIP) provides that Northern Ireland would remain subject to the EU’s customs laws and procedures and large parts of its internal market laws, under threat of enforcement by the EU Commission and the Court of Justice of the EU (ECJ). The EU’s rules on state aid would also continue to apply.

This clause could be interpreted widely, allowing the EU to impose their state aid regime on any UK policy which they consider impacts, in any way, on goods which are traded between Northern Ireland and the EU.

This applies not only to Northern Ireland, but also to goods originating from GB. The economy of NI is integrated with the rest of the UK, so there is nothing to prevent this clause being interpreted by the EU and its Court to continue imposing EU policy on large areas of the economy of the whole UK – a country that has formally left the bloc.  For example, if Westminster provided state aid to a manufacturer or farmer in England, which shipped some of its goods to Northern Ireland, then the EU could declare that support to be illegal.

The Protocol requires that customs and regulatory barriers would be imposed down the Irish Sea between Great Britain and Northern Ireland – a damaging division (as well as lots of red tape) between what are two parts of the same country.  This is at odds with the Agreement, which states that the UK should constitute “a single customs territory”.

UK-mainland based businesses trading in goods with Northern Ireland would have to pay tariffs at the EU Common External Tariff rate, if the EU considers them to be “at risk” of travelling on to the EU.  The EU alone could decide what constitutes an adequate customs check between Great Britain and Northern Ireland, what might be an illegal state aid, or what goods might be “at risk” of travelling on to the EU.

Why should the EU have a monopoly of wisdom over what this Agreement means?  These are not sustainable terms for the long-term relationship between a sovereign state like the UK, and the EU.

The only legitimate pretext for the Protocol to exist at all is to sustain the Northern Ireland Peace Process and the open frontier between the North and South.  It is reasonable for the EU to insist that this open border should not be used as an open back door to the EU for non-compliant goods or the evasion of EU tariffs.  However, if the UK can protect the Peace Process, to keep the border free of checks, while protecting the EU internal market, how can the EU justify their right to enforce their laws on the UK?

The UK Internal Market Bill seeks to address this, and this has reignited old feuds about Brexit. Specifically, it provides powers for ministers to ask Parliament to override any EU ruling, if the EU unreasonably seeks to impose these unnecessary provisions on the UK against our will.

If we end the year without a new trade agreement to supersede the Withdrawal Agreement, Brexit will not be “done”, because we would remain bound to the EU by the Withdrawal Agreement.  The UK signed the Withdrawal Agreement making clear that it should be superseded by a trade deal similar to the EU-Canada FTA.  The EU’s insistence that the Court of Justice of the European Union should continue to have direct jurisdiction over parts of the law of the United Kingdom should be seen for what it is: an inability to move on.

It is part of a an unreasonable pattern of EU behaviour.  The former UK diplomat to the EU, later John Major’s Press Secretary before becoming Tony Blair’s Ambassador in Washington, Christopher Meyer tweeted: “Article 184 of the Withdrawal Agreement commits the parties to negotiate on the future relationship ‘in good faith and in full respect of their respective legal orders’. It’s more than arguable the EU is already in breach on state aids and fish. ‘Trust’ works in both directions.”

Who in their right mind can consider that the Withdrawal Agreement offers any prospect of stability in the long term?  Agreeing to continued ECJ jurisdiction with direct applicability and direct effect could not in any way be considered as taking back control of our laws – the promise made both by Vote Leave and by the 2019 Conservative manifesto.  This would tear open the referendum divisions all over again.

Eurosceptics like me only voted for the Withdrawal Agreement to help the nation out of a paralysing political crisis. We made clear that it remains only the best of a bad job. We were assured that it was just a starting point for negotiations; that it would be superseded by a full FTA and, if needs be, could be repudiated.

This reassurance is buttressed by Section 38 of the Withdrawal Agreement Act. This makes clear that “the Parliament of the United Kingdom is sovereign” and so can repeal any “directly applicable or directly effective EU law”.  The House of Lords voted for that with hardly a squeak of protest.  The EU Parliament ratified the Withdrawal Agreement in full knowledge our Parliament had put this clause into the Bill.  The Prime Minister and our 2019 manifesto both made clear we will “take back control of our laws”, but it is becoming clear the EU may still not accept this and perhaps never intended it.

The UK should first try to re-negotiate the Agreement, but if the EU continues to be unreasonable, the Government is right to develop options.

The first is to enact domestic legislation that will nullify the direct effect and direct applicability of the EU laws.  The UK Internal Market Bill provides for this possibility.  If the EU still insists on applying the terms of the Withdrawal Agreement beyond what is reasonable, then the Parliament must be ready to use these powers. I hope it is not necessary, but if it is the only way to achieve UK prosperity and the kind of sovereign independence which is the democratic right of any nation recognised under the UN Charter, then so be it. And most other nations would respect us for that.

I was a bit surprised when the Northern Ireland Secretary so boldly announced that the Bill “does break international law”. This may be good tough talk, but it does not engender respect.  (Who told him to say that?)  His exact words are not even factually correct.  The key clauses themselves create no breach with EU law.  Even if the Government legislates to “disapply[ing] or modify[ing] the effect” of EU law, the Government may well be able to argue, while contrary to EU law, it is justified and therefore not a breach of international law.

What might be construed as a minor breach of some highly technical provisions of an international agreement does not mean a breach of “the law”, as it is understood under our constitution.  “The law” is the law passed by Parliament.  International law is a mixture of politics, diplomacy and the texts of agreements.  Trade agreements in particular are frequently disputed and dishonoured by illegal protectionism or punitive tariffs without justification.

The EU is a past-master at this.  Such agreements are not enforceable by our own courts in our own law unless Parliament says it should be so.  No self-respecting sovereign state would allow a foreign power the sole right to determine how to interpret and to enforce a bilateral treaty. Parliament has the inalienable right to enact laws to defend our national interests.

Bernard Jenkin: If necessary, we must pass legislation that will nullify the direct effect and direct applicability of EU laws

11 Sep

Bernard Jenkin MP is Chair of the Liaison Committee, and of the ERG Steering Group. He is MP for Harwich and North Essex.

The Bill to regularise the trade of goods and services within the UK is part of taking back control from what is still regulated by the EU, while we are in transition to full independence. The UK Internal Market Bill was published yesterday.  All it does is to legislate for the uncontroversial principle that all goods produced in any part of the UK should be treated equally.

However, it also sets out to protect this principle from potentially damaging interference from the EU, and makes provision for the UK to insist on the right of UK self-government and an end to the application of EU laws in the UK.

The Northern Ireland Protocol (NIP) provides that Northern Ireland would remain subject to the EU’s customs laws and procedures and large parts of its internal market laws, under threat of enforcement by the EU Commission and the Court of Justice of the EU (ECJ). The EU’s rules on state aid would also continue to apply.

This clause could be interpreted widely, allowing the EU to impose their state aid regime on any UK policy which they consider impacts, in any way, on goods which are traded between Northern Ireland and the EU.

This applies not only to Northern Ireland, but also to goods originating from GB. The economy of NI is integrated with the rest of the UK, so there is nothing to prevent this clause being interpreted by the EU and its Court to continue imposing EU policy on large areas of the economy of the whole UK – a country that has formally left the bloc.  For example, if Westminster provided state aid to a manufacturer or farmer in England, which shipped some of its goods to Northern Ireland, then the EU could declare that support to be illegal.

The Protocol requires that customs and regulatory barriers would be imposed down the Irish Sea between Great Britain and Northern Ireland – a damaging division (as well as lots of red tape) between what are two parts of the same country.  This is at odds with the Agreement, which states that the UK should constitute “a single customs territory”.

UK-mainland based businesses trading in goods with Northern Ireland would have to pay tariffs at the EU Common External Tariff rate, if the EU considers them to be “at risk” of travelling on to the EU.  The EU alone could decide what constitutes an adequate customs check between Great Britain and Northern Ireland, what might be an illegal state aid, or what goods might be “at risk” of travelling on to the EU.

Why should the EU have a monopoly of wisdom over what this Agreement means?  These are not sustainable terms for the long-term relationship between a sovereign state like the UK, and the EU.

The only legitimate pretext for the Protocol to exist at all is to sustain the Northern Ireland Peace Process and the open frontier between the North and South.  It is reasonable for the EU to insist that this open border should not be used as an open back door to the EU for non-compliant goods or the evasion of EU tariffs.  However, if the UK can protect the Peace Process, to keep the border free of checks, while protecting the EU internal market, how can the EU justify their right to enforce their laws on the UK?

The UK Internal Market Bill seeks to address this, and this has reignited old feuds about Brexit. Specifically, it provides powers for ministers to ask Parliament to override any EU ruling, if the EU unreasonably seeks to impose these unnecessary provisions on the UK against our will.

If we end the year without a new trade agreement to supersede the Withdrawal Agreement, Brexit will not be “done”, because we would remain bound to the EU by the Withdrawal Agreement.  The UK signed the Withdrawal Agreement making clear that it should be superseded by a trade deal similar to the EU-Canada FTA.  The EU’s insistence that the Court of Justice of the European Union should continue to have direct jurisdiction over parts of the law of the United Kingdom should be seen for what it is: an inability to move on.

It is part of a an unreasonable pattern of EU behaviour.  The former UK diplomat to the EU, later John Major’s Press Secretary before becoming Tony Blair’s Ambassador in Washington, Christopher Meyer tweeted: “Article 184 of the Withdrawal Agreement commits the parties to negotiate on the future relationship ‘in good faith and in full respect of their respective legal orders’. It’s more than arguable the EU is already in breach on state aids and fish. ‘Trust’ works in both directions.”

Who in their right mind can consider that the Withdrawal Agreement offers any prospect of stability in the long term?  Agreeing to continued ECJ jurisdiction with direct applicability and direct effect could not in any way be considered as taking back control of our laws – the promise made both by Vote Leave and by the 2019 Conservative manifesto.  This would tear open the referendum divisions all over again.

Eurosceptics like me only voted for the Withdrawal Agreement to help the nation out of a paralysing political crisis. We made clear that it remains only the best of a bad job. We were assured that it was just a starting point for negotiations; that it would be superseded by a full FTA and, if needs be, could be repudiated.

This reassurance is buttressed by Section 38 of the Withdrawal Agreement Act. This makes clear that “the Parliament of the United Kingdom is sovereign” and so can repeal any “directly applicable or directly effective EU law”.  The House of Lords voted for that with hardly a squeak of protest.  The EU Parliament ratified the Withdrawal Agreement in full knowledge our Parliament had put this clause into the Bill.  The Prime Minister and our 2019 manifesto both made clear we will “take back control of our laws”, but it is becoming clear the EU may still not accept this and perhaps never intended it.

The UK should first try to re-negotiate the Agreement, but if the EU continues to be unreasonable, the Government is right to develop options.

The first is to enact domestic legislation that will nullify the direct effect and direct applicability of the EU laws.  The UK Internal Market Bill provides for this possibility.  If the EU still insists on applying the terms of the Withdrawal Agreement beyond what is reasonable, then the Parliament must be ready to use these powers. I hope it is not necessary, but if it is the only way to achieve UK prosperity and the kind of sovereign independence which is the democratic right of any nation recognised under the UN Charter, then so be it. And most other nations would respect us for that.

I was a bit surprised when the Northern Ireland Secretary so boldly announced that the Bill “does break international law”. This may be good tough talk, but it does not engender respect.  (Who told him to say that?)  His exact words are not even factually correct.  The key clauses themselves create no breach with EU law.  Even if the Government legislates to “disapply[ing] or modify[ing] the effect” of EU law, the Government may well be able to argue, while contrary to EU law, it is justified and therefore not a breach of international law.

What might be construed as a minor breach of some highly technical provisions of an international agreement does not mean a breach of “the law”, as it is understood under our constitution.  “The law” is the law passed by Parliament.  International law is a mixture of politics, diplomacy and the texts of agreements.  Trade agreements in particular are frequently disputed and dishonoured by illegal protectionism or punitive tariffs without justification.

The EU is a past-master at this.  Such agreements are not enforceable by our own courts in our own law unless Parliament says it should be so.  No self-respecting sovereign state would allow a foreign power the sole right to determine how to interpret and to enforce a bilateral treaty. Parliament has the inalienable right to enact laws to defend our national interests.