Fog in Parliament: Continent not isolated….
An Allegory of Europe c, 1781
The course of events in Britain generally and in the House of Commons especially, with regard to the proposed “Brexit” (for which a clear majority of the people voted by Referendum) is manifestly perplexing, not merely to the British but even more deeply to those overseas. This is far from surprising since matters have clearly failed to progress in any way that would seem reasonable.
Yet in fact, this is only really true if one overlooks the factors that are in play, of which the fundamentals are relatively simple, even if their effects are not.
Principal among these are the following:
- Any attempt to run a plebiscitary and a representative democracy at the same time is unlikely to run well, and this is most especially true when popular sentiment and the will of the elected representatives are sharply divergent, as is exactly the case on the issue of membership of the EU (* See further end note on some further ironies about this) where the general populace has favoured the free trade but never the political integration.
- It is essential to note that while the majority of the voters in the referendum expressly wanted to leave the EU, by far the majority of MPs have always wished Britain to remain in the EU.
- Once Mrs. May lost her working majority in the House of Commons (after calling what turned out to be a disastrous General election), the ability of the Government to pass legislation of any kind became restricted and created a vulnerability to the whims and fancies of relatively small number of MPs on anything at any time. This has fostered the current plethora of options subject to merely “indicative” votes, (aided by a Speaker who is most anxious to enjoy every moment of his unusual and consequent access to power).
- Both the Conservative and the Labour parties are pretty deeply divided themselves on membership of the EU, with the irony that by personal preference Mrs May has always in the past favoured membership, but is now claiming to deliver departure, while Mr Corbyn has always opposed membership but has gradually for reasons of pure expediency (ie what is most likely to de-stabilise the government) moved towards a pro EU position.
- The (unelected) Executive that effectively constitutes the EU Administration (The Commission) has from the start wanted to exact the most terrible price possible in revenge for any country having the temerity to try and leave the EU, and has successfully corralled all the other members states into following its policy in lock step, even though a number have been eyeing the exit themselves hitherto. This reflects the frankly astonishing political commitment to sustaining the EU at almost any price, which is also what has kept in being the Euro, when given its costly impact on most of the economies (apart from Germany which benefits from its lower value as compared with the former Mark) it might have been predicted to vanish some years ago. Given the social and economic cost being paid even now by France for the Euro (since it relatively high in value compared to the Franc and thus makes exports harder), it is truly striking that the commitment remains unflinching to keep it (it has inflated production costs such that even the economic reforms that Macron has passed, have had little positive effect and it thus underpins the gilets jaunes movement he faces every weekend).
- Europe overall exports more to Britain than Britain exports to Europe, while the UK also is a major contributor to the EU budget, so, in the most basic economic terms, Europe needs to trade with Britain more than the UK does with Europe. But the only effective bargaining posture, from the outset, after the Referendum result would have been for the British government to say “We are leaving, but if you have any proposals to make regarding a trade deal, do feel free to send them over”…. At all costs the UK had to avoid any hint of supplicating for a deal , as that was bound to encourage the EU Commission to adopt its hardest of hard lines. However, the internal and especially media pressure, fueled by a relentless diet of scare stories about the dangers of leaving – from the EU and British bureaucrats invested in the status quo – mounted so fast that Mrs May cracked and gave a speech pleading for a deal – and the rest was history with a final agreement entirely written in Brussels.
- Once that fatal move was made, the EU felt free only to offer a departure deal on deeply disadvantageous terms , intentionally designed to be as offensive as possible, in combination with the most cynical exploitation of the UK’s very proper wish to avoid anything that might rekindle violence in Northern Ireland , (ie to create a problem about any actual customs border there with Southern Ireland) – so effectively making the Northern Irish not want to be out of step in any way with EU trade laws (so creating the infamous “back stop”). Given the truly extraordinary provisions that the EU insisted on in the agreement which May felt she had no choice but to accept (there was hardly any real negotiation save for successive concessions by her) it is worth reviewing some of the key components in that deal and they are therefore listed as an appendix below.
- It is long established practice in the EU (which is in a constant state of deal making) that any major deal only happens at the very last possible moment, or even quite commonly shortly after it. This meant that the final deal with the EU could only ever emerge at or around the time of the official departure triggered by the UK’s invocation of “Article 50”. Since that had to be triggered almost two years before it would take effect a horribly protracted time of “phony war” was the inevitable result , which again gave the advantage to those wishing to run “project fear” (which much like the “Millennium Anxiety” was always couched in general terms lacking much specificity and thus left to gather as an amorphous specter) in such a way as to erode the support base for the Brexit in the hope that the decision could be overturned in the end
So, with all these factors set out, it should be much clearer why things are the mess that they now are, and that just what is at stake now, is in essence the end game which is about to play out.
The core problem now is that on the one hand, the “May deal” is frankly appalling, both in terms of its direct cost (as the UK has to continue massive EU funding payments) and in what it surrenders for the future (which is a great deal of sovereignty and all control over the subsequent more detailed negotiation –as Europe alone will determine when the negotiation is over. Until then –which could be sine die, the EU can force the UK to submit to all its rules and regulations and to refrain from other free trade deals). So it is for these reasons that the traditional Brexiteers find it almost impossible to vote for her deal.
But (as Mrs May intended) the problem for them now is that the Remain MPs have forced through a commitment that bars the UK Government from permitting a “no deal” Brexit, so, in the event that Mrs. May’s deal is in the end rejected –as has been happening so far — then the likely alternatives are one or another of the options which include accepting either
- the Customs Union(which is essentially a free trade area with uniform tariffs on goods entering from outside) which entails submitting to such tariff and trade arrangements as the EU is pleased to make, even though the UK would not be a party determining them, and would also preclude the UK from making its own trade deals at all
- the Single Market, which entails acceptance of the free movement of people as well as of goods and services (and is thus effectively even more onerous, since in particular it entails loss of control over immigration which was a major factor behind the Referendum result in the first place. Moreover, while it would not absolutely of itself preclude independent trade deals with other countries it would make them difficult as it would entail
- Keeping three-quarters of EU laws such as are covered by Single Market rules, however desirable a change to them might be and however much UK electors might vote for it.
- Supranational interpretation and supervision: whereby those rules would be subject to rigidly harmonized interpretation and supranational enforcement by the EFTA Surveillance Authority and the EFTA Court which effectively mirror the EU’s actions and decisions , which would therefore produce the same end result in terms of compulsion regardless of what the UK and its citizens think.
- An open ended future obligation to follow future new EU laws and amendments so as to ensure that UK law would continue to mirror any changes made by the EU to any Single Market related legislation. Thus, the UK would no longer have the right to vote on those laws, so entailing what many consider the worst of all worlds. This could in particular be catastrophic for the City and financial services, where the UK would have no control at all over the imposition of legislation damaging to the City.
- Continued free movement of persons would be entailed for the indefinite future.
- Continued interference with the UK’s trade agreements with third countries by preventing the UK from agreeing to mutual recognition of goods and services from other countries which departed from the relevant Single Market rules.
Taking all this together it can be seen –as predicted in the original article – that at the very least there has to be a 2 : 1 (or more likely now 4:1) probability that the UK will never in fact fully leave the EU, (And this probability climbs at each point when “Parliament takes control” as the media spin puts it of the outcome — a turn of phrase which most adroitly makes it sound as though this were an advance for greater democracy, which is quite a rhetorical feat given that in fact the MP’s doing this, wish entirely to stop the “leave” outcome of the Referendum.)
The main options now, are thus:
- The May Deal, which hands ultimate power over the subsequent negotiations to the EU;
- One or another version of the Single Market or Customs Unionwhich again forever restrict the UKs autonomy;
- A direct revocation of Article 50 leading to the UK simply remaining in the EU exactly as before;
- A revocation of Article 50 after a further referendum in which (just as happened in Ireland and Denmark when they had referenda that went “the wrong way”) the electorate will have been obliged to keep voting again until a reversal of the original vote is achieved.
But what of the “no deal Brexit”? Well this has been barred to the government as a policy option by vote of House of Commons (though that vote did not affect the simple fact that it would occur if nothing else is done by way of an alternative.) While there has been, in addition, a rising crescendo of protestations that a “no deal” would be “catastrophic” or in a more measured sounding but even more vague phrase: “unsafe”, even though no details of how this unsafeness would be manifest are set out beyond rather quaint suggestions that there could be terrible Border delays that might risk medical supplies….(which has been planned for in any case). Having to trade under WTO rules has been spoken of darkly but then as Australia and New Zealand have pointed out that is what they do).
But at a policy choice level, it is the success with the range of options has been defined now almost entirely in terms of different forms of remaining that has driven some of the hard core Brexiteers (Such as Rees-Mogg) to feel they might have to support the May deal after all. This is just what May expected, so that at the ‘last gasp’ they may have to vote for her deal simply because it looks (however deceptively) as though it may be the only one that at least officially speaks of the UK leaving the EU at all.
But when its details are examined (see below) that is to take a rather generous view of what it really entails.
So with all this said, the only foreseeable way in which a full Brexit remains possible is essentially by a miscalculation on the part of the EU — which somehow entailed such complete disarray within the UK and Parliament, that no formal action was taken at all by Parliament, in which case the exit will happen by default in April, However, the probability has to be much higher that the EU and the pro-EU members of Parliament will in the end do whatever it takes to prevent that particular mistake from happening !
(But one has to allow that sheer intransigence did get the EU into this entire saga in the first place, since it will be recalled that it was the failure of the EU Commission to give Prime Minister Cameron anything whatever by way of concessions on immigration and other sensitive matters that framed the EU Referendum, and thus set the stage for the Brexit vote. But against this, it has to be recalled that the EU has so far managed to have every vote against membership taken in referenda by member states turned around (as was just cited in Ireland and Denmark) so they they have every reason to anticipate that they can do this again if they secure a second referendum.
So it is no surprise therefore that the EU has made very clear at each point so far that it is happy to grant ever longer extensions to the negotiation process, since it knows that with every delay the likelihood of an actual Brexit declines, (and the more time there is to run fear to set in). Indeed the latest rumour has it that the EU would not merely insist on a likely two year delay next time there is a request for more time but further insist that the UK elect MEPs again to the (somewhat ceremonial EU Parliament which is mainly a review body) but also that the EU would require Mrs May to hold a General Election in the UK itself – which would at a stroke effect a major expansion of its sovereignty over the UK and even the Monarch herself whose ultimate prerogative such a matter has always been hitherto.
All of which does indeed make it look ever more likely that, amidst these various scenarios, Britain currently risks heading towards the status of becoming an EU Province with limited local autonomy but no direct role in the government to which it is subject in Brussels, surely a worse outcome than the status quo as that outcome is surely but a polite way of describing a vassal state. It would be ironic indeed if the result of all the upheaval were to leave Britain neither a full member nor fully free of the EU….
- *Regarding the inevitable difficulty in running a plebiscitary and a representative democracy simultaneously, there is the irony that Brexiteers, by and large, would be the least likely to favour determining government policy by referenda — as a general principle — but have been forced by the long standing disconnect between the negative popular sentiment regarding the EU and the fact that most MPs have long been in its favour, to be VERY pro this last referendum result. While those who now want a second Referendum on the same question are thus revealing that they do not take the outcome seriously unless it goes in a direction they are willing to accept –which demonstrates precisely why referenda are problematic and their enthusiasm for them pragmatic rather than principled — as only an antecedently acceptable outcome will be deemed by them definitive. In addition, it is striking that in this time of much contempt for “populism” (which seems to mean election results that go against the views of the commentator) there is a growing tendency to portray the “ordinary elector” as a simpleton sadly unfitted to reach a reasonable conclusion upon which to base the action of voting. Thus, in America (and elsewhere) the voters are apparently helpless in the face of even the simplest and most crass Russian attempts to influence them. But no one seems to ask, if this is the case, must they not also be equally incapable of coping with the far more sophisticated manipulative techniques of normal election campaigns ? And last, in this terrain, it has been very striking that suddenly (after many years in which within a human rights framework there is no room for such a thing) many pro EU advocates have urged that MP;s should “exercise their consciences” and thus feel free to disregard the popular will of the electorate in regard to the EU specifically. And of all people Edmund Burke has been invoked to this end by liberals who would otherwise repudiate him — using his excellent case for understanding MP’s to be representatives and not delegates. That case is a good one, but it is most ironic that only now should so many liberals be keen to make it and to dust off a concept for which they otherwise leave no place — namely the free exercise of the individual conscience (something they will not normally allow to stand in the way of human rights which they see as having to be exceptionlness norms to which the individual’s exercise of the conscience must be ruthlessly subjugated.)
Comprising elements of what is included under the terms of the May Deal
which she has proposed to Parliament as settling the terms under which the UK would leave the EU
The main problem perhaps being if the UK really ever would under its terms be able to leave
(the following summary notes being set out from the UK Spectator:
Thus the legal small print, published by Brussels, shows that Parliament will be asked to ratify a deal which clearly admits that ‘all references to ‘Member States’ and competent authorities of Member States…shall be read as including the United Kingdom.’ (Article 7). So the UK will be bound by EU laws, at least during a transition period. But this ‘transition period’ can be be made to last forever (Article 132). And even if a successor deal is agreed, the UK will have signed away other rights for years to come.
In summary: The supposed ‘transition period’ could last indefinitely or, more specifically, to an undefined date sometime this century (“up to 31 December 20XX”, Art. 132). So while this Agreement covers what the government is calling Brexit, what we in fact get is: ‘transition’ + extension indefinitely (by however many years we are willing to pay for) + all of those extra years from the ‘plus 8 years’ articles.
Should it end within two years, as May hopes, the UK will still be signed up to clauses keeping us under certain rules (like VAT and ECJ supervision) for a further eight years. Some clauses have, quite literally, a “lifetime” duration (Art.39). If the UK defaults on transition, we go in to the backstop with the Customs Union and, realistically, the single market.
We can only leave the transition positively with a deal. But we sign away the money.
So the EU has no need to give us a deal, and certainly no incentive to make the one they offered ‘better’ than the backstop. The European Court of Justice remains sovereign, as repeatedly stipulated. Perhaps most damagingly of all, we agree to sign away the rights we would have, under international law, to unilaterally walk away.
Again, what follows relates (in most part) for the “transition” period. But the language is consistent with the E.U. imagining that this will be the final deal.
The top 40 items:
From the outset, we should note that this is an EU text, not a UK or international text. This has one source. The Brexit agreement is written in Brussels.
May says her deal means the UK leaves the EU next March (now April as of the time of writing by that could change any minute).
But The “Withdrawal Agreement “ makes a mockery of this. “All references to Member States and competent authorities of Member States…shall be read as including the United Kingdom.” (Art 6). Not quite what most people understand by Brexit. It goes on to spell out that the UK will be in the EU but without any MEPs, a commissioner or ECJ judges. We are effectively a Member State, but we are excused – or, more accurately, excluded – from attending summits. (Article 7)
The European Court of Justice is decreed to be our highest court, governing the entire Agreement – Art. 4. stipulates that both citizens and resident companies can use it. Art 4.2 orders our courts to recognise this. “If the European Commission considers that the United Kingdom has failed to fulfil an obligation under the Treaties or under Part Four of this Agreement before the end of the transition period, the European Commission may, within 4 years after the end of the transition period, bring the matter before the Court of Justice of the European Union”. (Art. 87)
The jurisdiction of the ECJ will last until eight years after the end of the transition period. (Article 158).
The UK will still be bound by any future changes to EU law in which it will have no say, not to mention having to comply with current law. (Article 6(2))
Any disputes under the Agreement will be decided by EU law only – one of the most dangerous provisions. (Article 168). This cuts the UK off from International Law, something we’d never do with any foreign body. Arbitration will be governed by the existing procedural rules of the EU law – this is not arbitration as we would commonly understand it (i.e. between two independent parties). (Article 174)
“UNDERLINING that this Agreement is founded on an overall balance of benefits, rights and obligations for the Union and the United Kingdom” No, it should be based upon the binding legal obligations upon the EU contained within Article 50.
It is wrong to suggest otherwise.
The VAT tax clause: We obey EU laws on VAT, with no chance of losing the VAT tax even if we agree a better deal in December 2020 because we hereby agree to obey other EU VAT rules for **five years** after the transition period.
Current EU rules prohibit 0-rated VAT on products that did not have such exemptions before the country joined the EU.
Several problems with the EU’s definitions: “Union law” is too widely defined and “United Kingdom national” is defined by the Lisbon Treaty: we should given away our right to define our citizens. The “goods” and the term “services” we are promised the deal are not defined – or, rather, will be defined however the EU wishes them to be. Thus far, this a non-defined term so far. This agreement fails to define it.
The Mandelson Pension Clause: The UK must promise never to tax former EU officials based here – such as Peter Mandelson or Neil Kinnock – on their E.U. pensions, or tax any current Brussels bureaucrats on their salaries. The EU and its employees are to be immune to our tax laws. (Article 104)
Furthermore, the UK agrees not to prosecute EU employees who are, or who might be deemed in future, criminals (Art.101)
The GDPR clause. The General Data Protection Regulation – the EU’s stupidest law ever? – is to be bound into UK law (Articles 71 to 73). There had been an expectation in some quarters that the UK could get out of it.
The UK establishes a ‘Joint Committee’ with EU representatives to guarantee ‘the implementation and application of this Agreement’. This does not sound like a withdrawal agreement – if it was, why would it need to be subject to continued monitoring? (Article 164). This Joint Committee will have subcommittees with jurisdiction over: (a) citizens’ rights; (b) “other separation provisions”; (c) Ireland/Northern Ireland; (d) Sovereign Base Areas in Cyprus; (e) Gibraltar; and (f) financial provisions. (Article 165)
The Lifetime clause: the agreement will last as long as the country’s youngest baby lives. “the persons covered by this Part shall enjoy the rights provided for in the relevant Titles of this Part for their lifetime”. (Article 39).
The UK is shut out of all EU networks and databases for security – yet no such provision exists to shut the EU out of ours. (Article 8)
The UK will tied to EU foreign policy, “bound by the obligations stemming from the international agreements concluded by the Union” but unable to influence such decisions. (Article 124)
All EU citizens must be given permanent right of residence after five years – but what counts as residence? This will be decided by the EU, rather than UK rules. (Articles 15-16)
Britain is granted the power to send a civil servant to Brussels to watch them pass stupid laws which will hurt our economy. (Article 34)
The UK agrees to spend taxpayers’ money telling everyone how wonderful the agreement is. (Article 37)
Art 40 defines Goods. It seems to includes Services and Agriculture. We may come to discover that actually ‘goods’ means everything.
Articles 40-49 practically mandate the UK’s ongoing membership of the Customs Union in all but name.
The UK will be charged to receive the data/information we need in order to comply with EU law. (Article 50)
The EU will continue to set rules for UK intellectual property law (Article 54 to 61)
The UK will effectively be bound by a non-disclosure agreement swearing us to secrecy regarding any EU developments we have paid to be part. This is not mutual. The EU is not bound by such measures. (Article 74)
The UK is bound by EU rules on procurement rules – which effectively forbids us from seeking better deals elsewhere. (Articles 75 to 78)
We give up all rights to any data the EU made with our money (Art. 103)
The EU decide capital projects (too broadly defined) the UK is liable for. (Art. 144)
The UK is bound by EU state aid laws until future agreement – even in the event of an agreement, this must wait four years to be valid. (Article 93)
Similar advantages and immunities are extended to all former MEPs and to former EU official more generally. (Articles 106-116)
The UK is forbidden from revealing anything the EU told us or tells us about the finer points of deal and its operation. (Article 105).
Any powers the UK parliament might have had to mitigate EU law are officially removed. (Article 128)
The UK shall be liable for any “outstanding commitments” after 2022 (Article 142(2) expressly mentions pensions, which gives us an idea as to who probably negotiated this). The amount owed will be calculated by the EU. (Articles 140-142)
The UK will be liable for future EU lending. As anyone familiar with the EU’s financials knows, this is not good. (Article143)
The UK will remain liable for capital projects approved by the European Investment Bank. (Article 150).
The UK will remain a ‘party’ (i.e. cough up money) for the European Development Fund. (Articles 152-154)
And the EU continues to calculate how much money the UK should pay it. So thank goodness Brussels does not have any accountancy issues.
The UK will remain bound (i.e coughing up money) to the European Union Emergency Trust Fund – which deals with irregular migration (i.e. refugees) and displaced persons heading to Europe. (Article 155)
The agreement will be policed by ‘the Authority’ – a new UK-based body with ‘powers equivalent to those of the European Commission’. (Article 159)
The EU admits, in Art. 184, that it is in breach of Article 50 of the Lisbon Treaty which oblige it to “conclude an agreement” of the terms of UK leaving the EU. We must now, it seems, “negotiate expeditiously the agreements governing their future relationship.” And if the EU does not? We settle down to this Agreement.