Letwin’s wildcat executive would reduce ministers to marionettes

The whole plan involves maintaining a public-facing theatre of constitutional normalcy which will only further impede scrutiny and accountability.

To listen to Oliver Letwin’s speech of Tuesday – which we have a video clip of, if you missed it – is to gaze a long, long way through the constitutional looking glass.

In it, he admits to what had previously only been hinted at: that if the House of Commons passes the bill known as ‘Cooper/Boles’, the legislature will fundamentally usurp the proper role of the Government in running the country.

As he puts it, the House of Commons will be the Cabinet. It would be, as he acknowledges, a situation almost certainly unique in the uniquely long history of Parliament as a representative institution. He asserts, perhaps sincerely but inevitably falsely, that this upheaval would be temporary.

Brexit has prompted a huge volume of writing about the constitution, and spurious allegations of ‘constitutional outrages’ are not hard to find. But the consequences of what Letwin and his confederates propose are truly mind-boggling.

Earlier this month, I wrote about the unwisdom of the ‘Meaningful Vote’ as a constitutional innovation. So much of the incoherence which critics of the Government claim are making the UK a laughing stock on the international stage are rooted in the fact that the Commons has deprived ministers of their normal powers to conduct foreign relations and conclude treaties.

Of course, the impact of the Meaningful Vote pales in comparison to what Letwin proposes to unleash. But they each have their roots in the same dogma: that it is right and good to expand the power of the House of Commons, regardless of the circumstances.

So let’s consider just some of the issues raised by the Cooper/Boles plan to “fundamentally realign the relationship between civil service, government and parliament”.

As Letwin admits, the plan will take more than one law to take effect. Once underway the establishment of what will effectively be a wildcat executive will require further legislation, introduced by backbenchers and imposed on the Cabinet. The more of this there is, the more fatuous suggestion that the consequences will be containable: both the precedent and perhaps much of the legislative architecture of the Letwin Ministry will remain in place, to be wielded against any future minority government.

Moreover, what becomes of the actual ministers? Are they expected simply to remain obligingly in office, rendered an extension of the civil service as they wield executive power at the behest of the government-once-removed? To remain politically accountable for the policies of a shadowy parallel executive?

And not just politically accountable: all the mechanisms our system has evolved for scrutinising executive decision-making will remain trained on Ministers of the Crown. It is they, and not the officers of the new order, who can be called before the House, field questions, and so on. Yet what is the point of quizzing the Prime Minister, or indeed any Secretary of State, on Britain’s Brexit policy if they are not directing it?

As Letwin acknowledges in his speech, the actual Government is accountable to Parliament. But if Parliament becomes the Cabinet, what steps up to take the role of Parliament? There is nothing, save perhaps the judges and political scrutiny is not their function.

That’s just a small portion of the questions thrown up by these proposals. Elsewhere Nikki da Costa, the parliamentary and procedural expert, has sketched out an entirely distinct, political problem with how the Cooper/Boles plan would severely degrade not only procedural scrutiny but political accountability to the electorate.

It’s all worth a read, however right at the end she hits on something particularly important.

There’s a reason that the measures Letwin is advancing have not been tried before, and it is not because this country has never before faced a serious crisis. It is that the House of Commons always has the power to dismiss a government in which it has lost confidence, and either install a new one or take the argument to the people. Even outside a formal vote of confidence individual MPs can resign the whip or even cross the floor, should they wish.

But doing so involves taking responsibility: for renouncing your party loyalty; for withdrawing your confidence in the Government; for taking your case to the country.

Cooper/Boles, by contrast,  involves deliberately maintaining a public-facing theatre of constitutional normalcy – of confidence in Her Majesty’s Government; of ministerial responsibility; of the party system; and so on – whilst wresting and then wielding power beneath it, far removed from all established mechanisms of scrutiny and accountability.

You cannot honourably claim to have confidence in the Government whilst usurping its power to direct policy on the single most crucial challenge facing the country. The Prime Minister would be within her rights to treat Cooper/Boles as a de facto confidence measure.

We should leave without a deal, declare our independence and let the EU then negotiate with us

A few honourable MPs aside, the Labour Party has now dumped its manifesto commitment on Brexit to respect the referendum result. It is now calling for Britain to stay in the EU’s customs union forever – which would effectively mean being locked into the EU forever while having no say at all over how it […]

The post We should leave without a deal, declare our independence and let the EU then negotiate with us appeared first on BrexitCentral.

A few honourable MPs aside, the Labour Party has now dumped its manifesto commitment on Brexit to respect the referendum result. It is now calling for Britain to stay in the EU’s customs union forever – which would effectively mean being locked into the EU forever while having no say at all over how it works.

Say what you like about Theresa May’s negotiating skills, her task would anyway have been nigh on impossible given the continual attempts at sabotage from politicians and others in Britain.

One example: when May went to Brussels last week, she was told by Donald Tusk that Jeremy Corbyn’s proposals for a permanent customs union represented “a promising way out” of the current impasse on Brexit.

Another form of sabotage is the constant exhortations from the establishment calling for the EU to give no ground to the Government.

Brexit is in danger. A clean Brexit is still the default position, leaving on 29th March to trade on WTO terms. Yet despite the defeat in parliament on 29th January of every binding amendment to block or delay Brexit – including Labour’s permanent customs union – Theresa May’s so-called Withdrawal Agreement is still on the table.

Even though MPs voted against it on 24th January, May still wants MPs to vote again on it, once again using No Deal as a threat not as an opportunity.

Her current deal with the EU is not a Withdrawal Agreement – it is a Remainer Agreement, in every clause on every one of its 585 pages. It is No Brexit. It would bind us forever into a United States of Europe.

It is meant to be permanent, inescapable. The Attorney General told the Cabinet that there was no legal escape route from the backstop Protocol and that it would “endure indefinitely”.

Her deal would give the EU tariff-free access to our market and control of our trade policy, force us to fund the EU’s defence programme, give EU fishing vessels free access to our waters, give the EU control of our farms, and allow free movement of labour through clauses about “mobility”.  In sum, it would bind us into the EU in perpetuity.

No surprise, then, that Jean-Claude Juncker, the President of the European Commission, boasted that the EU got “almost everything” it wanted with the deal.

MPs rejected May’s deal – almost the only thing they can agree on – then voted to tell her to go yet again to Brussels with her faithful lieutenant Oliver Robbins, to beg the EU to drop the Irish backstop.

But the EU will not give up the huge advantages they gain under the backstop. As Robbins observed, renegotiating the backstop with the EU is “for the birds”.

We do not need to beg the EU to change its position – that would be fruitless, as all experience from Harold Macmillan 50 years ago to David Cameron has proven. We do not need to beg the EU for a new deal, as Boris Johnson has suggested. We do not need to pay the EU £39 billion for the privilege of leaving, nor even the £20 billion that Johnson proposed.

We can and should just declare our policies on trade, fishing, the Irish border, immigration and everything else. We do not need to ask the EU’s permission. We declare our independence and then, if we wish, we can negotiate with the EU.

The post We should leave without a deal, declare our independence and let the EU then negotiate with us appeared first on BrexitCentral.

WATCH: “There is no point in having a time limit on the backstop unless it is written into the treaty”, Johnson argues

The former Foreign Secretary also insists that any time limit must end “substantially before the next general election”.

Chris White: Time is getting extremely tight to pass all the required withdrawal legislation

With 45 days left, unless workarounds or extra time can be found, uncomfortable decisions may have to be made on which Brexit Bills to prioritise.

Chris White was Special Adviser to Patrick McLoughlin, when the latter served as Chief Whip, as well as to Andrew Lansley and William Hague when each served as Leader of the House. He is now Managing Director of Newington Communications.

The clock is ticking. We’re running out of runway.  Whatever metaphor you wish to use, Parliament has an awful lot of legislating to do before 29th March if it wishes to complete the passage of the seven Brexit Bills, along with a large amount of secondary legislation.

Today, the Prime Minister will update the Commons, setting out the Government’s progress in negotiating with the EU following the passage of the two advisory amendments last month.  They instructed, though not mandated, the Government to seek to both remove the backstop (Brady) and avoid a No Deal scenario (Spelman/Dromey).

Since then, the negotiations have been less than productive, revealed in striking language in the Prime Minister’s letter to the Leader of the Opposition over the weekend.  In it, she stated that she was still seeking alternative arrangements to the backstop without specifying in detail what they were, and that negotiating a free trade deal as a third party outside of the Single Market was a “negotiating challenge”, which is somewhat of an understatement.

A month on from the meaningful vote on 15th January, whilst significant column inches are dedicated to the possibility of the Malthouse Compromise we are no closer to knowing if the EU is prepared to alter the existing deal.  Parliament is running out of time before 29th March, either to pass a Bill implementing an agreed deal, or to pass legislation ensuring the UK is ready for a No Deal Brexit.

The scale of the challenge

On 31st January, the Leader of the Commons quite rightly cancelled the February half-term recess, yet also scheduled a range of business in the Commons that, whilst important, didn’t progress No Deal legislation in any way.  This risk-averse programming is almost certainly down to the fact that, with negotiations ongoing with the EU, the Government doesn’t wish to give any opportunities in the House to amend legislation to include unhelpful and challenging amendments.  For example, there have been strong hints that amendments could be tabled to the Trade Bill in the Lords that would seek to keep the UK in a Customs Union.

If this is the case, and with reports suggesting that the next ‘meaningful vote’ is in around three weeks, in the week commencing 25th February, we may not see any more progress in the Commons on much needed No Deal legislation until a deal is reached that the House can agree on.

In terms of readiness, a number of No Deal preparation Bills have already received Royal Assent, including the Customs Act, the Nuclear Safeguards Act, the Road Haulage Act and the Sanctions Act.  However much more needs to be done. For a start, winning the meaningful vote is only the first step – the Government must then pass a European Union Withdrawal Agreement Implementation (EU WAIB) prior to 29th March to give legal effect to the Withdrawal Agreement.  However the Government must not put all its eggs in one basket, and in order to provide security in the event of No Deal should pass a further six Bills, and additional secondary legislation.

These Bills range from allowing the UK to enter into trade deals, creating a domestic agriculture and fisheries market, maintaining our healthcare agreements, giving powers to implement financial services regulations, to bringing EU citizens under UK law.

The current state of play is as follows:

As you can see from the above table, agriculture, fisheries, and immigration are well behind schedule and will need considerable work to pass before 29th March.  Equally, Trade has its own issues as outlined above.

The Government also has to pass around 600-700 statutory instruments, or secondary legislation, before 29th March to be ready, in addition to the above Bills.  The timetable for their consideration has increased in recent weeks and the Government might just be on track, but around 200 still have to be considered in the next few weeks. Certainly the SI committees are working overtime, and have significant reading ahead of them.  The Times’s Esther Webber reported one SI from BEIS was “636 pages long, weighs 2.54 kilos and covers 11 matters that would be expected to go in separate documents.”

Will the UK be ready in time?

There are 45 days left until 29th March, and Parliament will sit for 26 of them (not counting sitting Fridays), unless it chooses to add more sitting days to the calendar or change the business on Fridays from Private Members’ Bills to Government business.  If the deadline of 29th March remains in place, it is unlikely that the Government will be able to pass both the EU WAIB and the six remaining No Deal preparation Bills.

This will mean uncomfortable decisions about which Bills it has to prioritise, and whether workarounds can be found through alternative means.  The Trade Bill is probably the highest priority for the Government aside from the EU WAIB, but failing to set up domestic agriculture and fisheries markets prior to exit day, for example, will cause severe concerns and uncertainty in those sectors.  If Government, Parliament and the EU reach consensus about an amended deal, or agree to the existing deal, then it’s likely that there will need to be a short extension to Article 50 as passing the EU WAIB inside a month, whilst technically possible, would be extremely challenging.  However, the Government must continue to progress with the No Deal Bills over the next few weeks, or the UK faces running out of runway before 29th March.

There are very strong reasons why the EU ought to accept the Malthouse Compromise

The recent vote in Parliament attempting to prevent a no-deal outcome on Brexit was counter-productive and non-binding. Any attempt to hobble the Government’s negotiating hand would have been a self-inflicted wound. It was also irrelevant, since virtually no-one in the UK is advocating no deal. The preference of the European Research Group (ERG) of Conservative […]

The post There are very strong reasons why the EU ought to accept the Malthouse Compromise appeared first on BrexitCentral.

The recent vote in Parliament attempting to prevent a no-deal outcome on Brexit was counter-productive and non-binding. Any attempt to hobble the Government’s negotiating hand would have been a self-inflicted wound. It was also irrelevant, since virtually no-one in the UK is advocating no deal.

The preference of the European Research Group (ERG) of Conservative eurosceptic MPs has always been for what is usually called a ‘Canada-plus’ free trade agreement. Everyone also supports sensible side deals on such issues as aircraft landing rights, air and vehicle safety certification, and truckers’ licences. It may not be the Withdrawal Agreement signed off by Theresa May, but it is a perfectly coherent UK offer, especially if accompanied by undertakings on the Irish border.

It is entirely logical for Brussels to play hardball at this stage of the talks. The EU still see some prospect of Parliament reversing its rejection of the Withdrawal Agreement and are, of course, fully aware of the non-binding vote on no deal. However, the EU’s current refusal to re-open the Withdrawal Agreement is unlikely to be a guide to the endgame in March.

It would nevertheless be logical for the EU to offer Parliament a sweetener in the form of a codicil attached to the Withdrawal Agreement. This codicil could suggest that the EU will try hard to ensure that the backstop is either never used or will be used for only a short period.

However, this is unlikely to work since prominent ERG MPs have said that they will reject any formulation that does not replace the current wording of the Withdrawal Agreement with a clear get-out clause from the backstop. The likelihood is, thus, that the deal will once again be rejected if it returns to Parliament.

The Prime Minister’s first preference is clearly still to get an amended Withdrawal Agreement through Parliament. Her strategy all along has been to give Leave supporters a formal exit from the EU and control over EU migration, but to give companies an outcome very close to the customs union and single market. The recent Nissan decision not to build the new X-Trail model in the UK will have strengthened this resolve.

The voting strength of the ERG, however, means that a fall-back position is now under consideration – the ‘Malthouse Compromise’. This is close to the ERG’s long-standing preferred option, with the involvement of prominent Remainers giving the plan a far higher profile than we might otherwise have expected. These MPs find the Withdrawal Agreement unacceptable. They also share a survival instinct and wish to prevent their party from fracturing and losing the next election.

If and when the Withdrawal Agreement fails again to pass in Parliament, the plan is to have a compromise which the Malthouse group hope will command sufficient Tory and DUP support (together with up to forty Labour MPs from Leave-voting constituencies) to provide majority backing in Parliament. This can then be presented to the EU who will need to choose between this and no deal.

The Malthouse Compromise is based on a free-trade agreement with no tariffs or quotas. A commitment to avoid new infrastructure on the Irish border is supported by proposals for advanced customs and trade facilitation measures of the sort already in use on, for instance, the Swiss border. Regulatory equivalence of the type that currently exists for meat imports from New Zealand are proposed to remove the need for sanitary and phytosanitary checks for food and animal imports. Non-regression clauses of the sort common in modern free trade agreements are proposed to address EU concerns over unfair competition. Provisions on citizens’ rights and payments to the EU would be carried forward from the Withdrawal Agreement.

The Malthouse plan could involve an extended transition period agreed under Article 50 to allow time to negotiate a free trade agreement (which should not be difficult between two entities which already have free trade). Additional payments would accompany an extended period.

Alternatively, the free trade negotiation could be conducted without a formal transition period through making use of the provisions of GATT Article 24 as long as the EU agreed that formal FTA talks could begin soon after 29th March. Article 24 allows countries engaged in formal free trade negotiations to suspend the most favoured nation rule of the WTO and to continue with the existing tariff-free trade arrangements. In either case, the period would finish by December 2021 at the latest.

The EU is likely to resist consideration of this alternative for several weeks, but once the Withdrawal Agreement has sunk without trace, and both sides face no deal, there are three strong reasons why it might accept the Malthouse Compromise.

First, an agreement secures the £39 billion (or more) promised in the Withdrawal Agreement. Secondly, an agreement avoids potentially high tariffs for EU exporters into the EU. The EU currently sells £55 billion of products in high-tariff food and vehicle sectors into the UK. Exports from the UK into the EU in these sectors are lower at £21 billion.

But the most pressing reason is to secure a frictionless border in Ireland. The UK has guaranteed no new border infrastructure, deal or no deal, but without a deal there will be a problem on the Irish side to maintain the integrity of the EU Single Market.

It is obviously better for Ireland and the EU to accept some deal on the Irish border rather than no deal at all, even if that deal were inferior to the backstop in their eyes. The UK will also prefer to avoid no deal but can live with tariffs and side deals.

This is an extract from Brexit and Backstop: everything you need to know, published today by The UK in a Changing Europe.

The post There are very strong reasons why the EU ought to accept the Malthouse Compromise appeared first on BrexitCentral.

We have a precious choice between democracy or permanent second-class statehood

Let’s make no mistake – with the clock ticking down to 29th March, we have finally arrived at an existential turning point for both the United Kingdom and the European Union. Talk of compromises and cross-party consensus and some kind of semantic fudge that will make the Brexit-negating Withdrawal Agreement pass the Commons at the […]

The post We have a precious choice between democracy or permanent second-class statehood appeared first on BrexitCentral.

Let’s make no mistake – with the clock ticking down to 29th March, we have finally arrived at an existential turning point for both the United Kingdom and the European Union. Talk of compromises and cross-party consensus and some kind of semantic fudge that will make the Brexit-negating Withdrawal Agreement pass the Commons at the third attempt is a painful distraction from harsh political and historic realities.

Both the UK and the EU still face a stark binary choice, whether all parties acknowledge it or not. Leave or Remain. Double or quits. In or out. Sitting on the Brexit fence while making the right noises to the right people, in the hope that this decision can be delayed or permanently taken off the political agenda, is an abdication of responsibility that will soon no longer be an option.

For the UK, the choice can be summarised as one between democracy and permanent second-class statehood; freedom to hire and fire the people who make the laws we have to obey and pay for, or the triumph of pessimism due to the mistaken and craven belief that we aren’t mature and sensible enough to run our own affairs, and must cleave to a supranational body with minimal democratic legitimacy because we are too insignificant to defend our right to democratic self-government.

Remainers trying to subvert the referendum result by locking the UK into the EU, even as we are supposedly leaving it, have completely missed the point of the Leave vote. It was a vote of confidence in Great Britain and its institutions, flawed or otherwise. It was a vote by optimists, by people who believe in the regenerative, sometimes messy but always liberating, principle of democracy – which is that you make your own mistakes, and if you don’t like the way the ship of state is run, you chuck out the government and give someone else a turn at the wheel. There are ups and downs, but you always have a choice. And that choice is precious.

People across the world have died in countless wars to be able to have such a choice. It is sad indeed that many of the guardians of this ancient, disruptive, rambunctious democracy of ours are so afraid of it that they dare not stand up for it. Indeed, they would rather abolish it and have us ruled by an unelected European Commission, which continues to assume with Ancien Régime arrogance that the British people can be made to vote as many times as necessary until they sign up to the European Project. One might say when hell freezes over, but one hates to employ such clichés. Except when they are true.

Staying in a customs union with the EU, accepting close regulatory alignment with the EU, joining an EU army with imperial ambitions (as outlined recently by the French), allowing the EU to decide on vast areas of policy-making – as the Withdrawal Agreement does – is not only not Brexit and a failure to deliver on the referendum result. It is to collude in the death of functioning, open, plural democracy, which is the only safeguard against dictatorship.

So the choice is clear: a Brexit that restores supreme law-making powers to the UK, or the triumph of technocracy and the enforcement by a foreign court of perpetual protectionist mediocrity, to ensure that no member state of the EU is ever independent enough to question the power exercised by an unelected Politburo in Brussels, whose mission is to create the United States of Europe, by fair means or foul.

One country’s upsurge of democracy, of course, can be another’s constitutional catastrophe. For the EU, Brexit is no less of an existential issue. That the second largest financial contributor and the oldest democracy in the EU voted to leave is a damning indictment of the political failure that has marked the European Project in the last twenty years. The fury and insults heaped upon Britain after the referendum testify to the total incomprehension of the EU’s political class when confronted with legitimate dissent.

And that nothing has changed since 23rd June 2016 is evidenced by the ludicrous stories peddled by Project Fear in recent days… Apparently the Queen is to be evacuated if we leave the EU on WTO terms. Given that Her Majesty produces much of her own food on her own land, one wonders where she might go to avoid “the cliff-edge” if the Roquefort doesn’t show up in time for the cheese course.

We hear that a third of UK businesses are thinking of relocating to the EU, only to see that the poll conducted by the IoD was of a tiny percentage of its members. Another headline claims that a majority of Chief Finance Officers believe that the UK will be worse off after Brexit – a majority of just one hundred CFOs surveyed by Deloitte. None of these surveys takes into account that a sovereign Britain can take whatever legislative and fiscal measures it deems fit to ensure that goods flow into this country unfettered and that our economy continues not only to function normally, but to thrive.

This acceleration of Project Fear in the media strengthens the belief that there will be no meaningful concessions on the Withdrawal Agreement before the next debate in the Commons. Indeed, EU leaders have repeatedly said that they will not reopen the legal text. Michel Barnier therefore has no mandate other than to listen politely to the Prime Minister and say no.

The EU will try until the bitter end to ram its appalling deal down our throats, because the slightest sign that it is willing to agree a pragmatic, mutually beneficial trade relationship with a former member state will be seen as a green light for other eurosceptic members to flex their muscles and stand up to the Franco-German juggernaut that intends to sweep them up in its imperial embrace.

The ‘Malthouse Compromise’ recently floated by a group of Tory MPs is likely to be shot down in flames – if indeed it is even tabled for discussion by Theresa May. Whatever she may propose to break the impasse, negotiators in Brussels must cling to their position – that a centralised technocratic EU superstate is the ineluctable future.

It is, of course, the past: an attempt to create by red tape and judicial takeover what has not been possible to achieve through centuries of warfare. But it is hard-wired into the EU’s DNA, and it is a question of survival. For them a no-deal Brexit will be preferable to any ‘deal’ that fails to put Britain on the naughty step and keep it there until it begs to be let back into the nursery.

To EU or not to EU, that remains the question.

The post We have a precious choice between democracy or permanent second-class statehood appeared first on BrexitCentral.