The specified date

 

The UK has to stop pretending it doesn’t matter that there has been a 96% drop in the number of nurses coming to work in Britain, that EU academics are leaving at a faster rate than they’re being replaced, that only one in 50 job applicants to Prêt a Manger is British. Or that 65% of highly-skilled EU workers find Britain a less attractive place to live than they did a year ago.

The UK has to stop pretending it’s an island. It is an island only in the sense that it’s surrounded by water. The last time that mattered was 1941. It is one of our many misfortunes that we have a Prime Minister who studied Geography.

Even more unfortunately, she spent six years in the Home Office and has not yet got over it.

All in all, it would not be sensible to expect much from the Government proposal on the reciprocal rights of EU and UK citizens except that it would eventually be published, and it has (Safeguarding the position of EU citizens in the UK and UK nationals living in the EU, HM Government, 26/6/17). Described by the EU as “vague” and “worrisome,” by UK expats in Europe as “pathetic” and by Jeremy Corbyn as “too little too late,” it has underwhelmed Europe and provoked anguish among the people to whom it most matters.

By the standard of Mrs May’s government this is a substantial document, but the standard is not high. At around 20 pages, it sets out the Government’s plans with apparent clarity. Until the UK’s exit, EU citizens will continue to enjoy the rights they already have; post-exit, those who came to the UK before a “specified date” (which is to be negotiated) will be able to apply for “settled status” when they have lived in the UK for five years, and can apply for temporary status until they have accrued their five years. Their family dependents can apply for settled status. “They will be free to reside in any capacity and undertake any lawful activity, to access public funds and services and to apply for British citizenship” (para 6). There will be a grace period to allow people to send in their applications after Brexit.

With diligence the document works through various scenarios. It sets out, in nice little boxes, how different EU nationals, who are given names so we can imagine them, will be affected. Here are Audra and Ignas:

Audra and Ignas moved to the UK from Lithuania in 2015. They are married and expecting a baby later this year. After the UK leaves the EU, Audra and Ignas will be able to stay in the UK during the grace period…  Once they have been resident for five years they will be entitled to apply for settled status…

Their son or daughter will also have the opportunity to stay permanently in the UK.  They… will need to apply for settled status on their child’s behalf…

That’s all right, then.

Poor Aisha, though, has made the mistake of getting here after the specified date:

If the specified date is pre-exit, Aisha can still exercise her free movement rights to live in the UK until the UK leaves the EU. However, once the UK leaves the EU, Aisha’s free movement rights will end.  [She] will be able to stay during the blanket (grace) permission period – but she must apply for permission to stay here beyond that period. If Aisha successfully applies for permission to stay, she will be granted a temporary residence document.

If Aisha wishes to stay in the UK after her temporary permission expires, she will need to obtain further permission. Her eligibility for further permission will depend on the rules in force at that time.

That last sentence is a perfect specimen of its kind. It is May’s Home Office made manifest.

The British expats are dealt with in a more summary fashion. It’s assumed, not very politely, that the EU will make reciprocal arrangements for them (it has repeatedly said it will). They will be all right, too, because their State pensions will continue to be paid and “uprated.”

Comparison with the position paper published by the EU in April (Essential Principles on Citizens’ Rights, European Commission) is a comparison between different cultures. The EU paper is much shorter (it is not trying to create a new category of citizenship), but it’s also more succinct and makes frequent use of cross-referencing to EU legislation, which gives it a solidity and breadth which the British document lacks.

The British proposal deals with its subject as if there is no horizon, no context, no substrate of law and human rights. Perhaps this is what Michel Barnier means when he criticises its lack of ambition; or perhaps he means – and it’s true – that the height of its ambition is merely the floor of decency, while the height of the EU’s matches the highest goals of the EU: liberty, community, self-expression.

The EU wants both EU and British citizens to retain, in perpetuity, exactly the rights they have now. It offers them the right to live, work and retire in any other EU country. A breath of generosity and freedom blows through it: “EU27 citizens or UK nationals who resided legally respectively in the UK or EU27 at the date of entry into force of the Withdrawal Agreement should be considered legally resident even if they do not hold a residence document evidencing that right.”

Para 17 of the British Government paper says: “All EU citizens (and their families) in the UK, regardless of when they arrived, will, on the UK’s exit, need to apply to the Home Office for permission to stay, which will be evidenced through a residence document… Following the UK’s exit from the EU, the Government may wish to introduce controls which limit the ability of EU citizens (and their families) who arrive in the UK after exit to live and work here… Without a residence document, current residents may find it difficult to access the labour market and services.” (My italics.)

It’s not surprising that EU nationals are not reassured by this policy paper.

The Government has done some good things in it. It abolishes the nightmarish need to demonstrate past possession of sickness insurance. It promises to introduce a streamlined application process. It guarantees settled status to family members of EU citizens who qualify for or already possess that status.

But it will impose an income threshold of £18,600 on family members from outside the EU joining EU citizens who married after March 2019. And the announcement of the “streamlined” application process has provoked fury among the 150,000 EU citizens who have already completed the Home Office’s arduous application procedure, since they will now have to apply again.

And what about that crucial “specified date” (which, as the document proceeds, begins to sound more and more like a euphemism for something that must not be named, like the “donations” in Never Let Me Go)? The EU, reasonably, wants it to be the date when the UK leaves the EU. The UK, with clock-watching meanness, says it could be as early as the day Article 50 was invoked. In that case, hundreds of thousands of EU citizens living here have already forfeited their rights.

There’s a more intractable problem, and it’s one that surfaces everywhere in the negotiations that will have to take place with the EU. It’s the European Court of Justice.1   Britain refuses to accept the ECJ’s jurisdiction after Brexit; the EU says it is indispensable. In this case, it is said to be necessary to protect the rights of EU citizens in the UK against the possibility that any agreement reached with the EU may be reneged on by a future British government. (And it may: see para 17, above.)

Well, you may say, the problem of the ECJ will be solved by some means or other, and the rest can be negotiated. This policy paper represents merely the opening position in a negotiating process. As such, it’s not too bad, surely?

It’s a start. But the fact that it’s the opening position in a negotiating process is the worst thing about it. It’s this that has cast EU citizens in Britain and British expats in Europe into renewed despair. For nothing in it is unconditionally guaranteed. It could all vanish in the blink of an eye if the talks fail.

Jeremy Corbyn, in the Commons, said that an unconditional offer could and should have been made a year ago.  But the Standard (June 23) revealed that that chance had already been declined. “In the days after the referendum, David Cameron wanted to reassure EU citizens they would be allowed to stay. All his Cabinet agreed with that unilateral offer, except his Home Secretary, Mrs May, who insisted on blocking it.” Theresa May has said this is not her recollection of the meeting.

For a year we have been waiting for this lamentable Government to set out its negotiating stance on Brexit and, now that it has finally started to do so, it has begun with an issue that should never have been a negotiating matter in the first place.

There’s something else and it isn’t talked about. Joris Luyendijk, writing in the Guardian, 29 June (‘Brexodus has begun’), pinpoints it from the other side of the fence: “The real problem with the offer is not that it is unfair but that it cannot logically be fair. If EU nationals kept all their rights post-Brexit they would end up with more rights than the local population…”

In other words, by leaving the EU we are giving up some of our rights.

Of course we are.

Then why the hell are we doing it?

 

1 I wrote about the ECJ in It’s not raining, 2 June.

 

Bacon from Limerick, stout from Dublin

 

“Who?” said three-quarters of the electorate.

WHAT?” exclaimed the rest.

Theresa May, having thrown away her parliamentary majority, had announced that she would seek the support of the DUP.

‘When the Irish Free State was established,’ writes H.V. Morton in In Search of Ireland (1930), ‘six of the nine counties of Ulster expressed themselves ready to die rather than become part of it. They decided to form themselves into a political entity with a parliament of their own. And this is Northern Ireland.’

Let’s go back a bit. It starts with Henry II and some opportunistic land-grabbing. Under Elizabeth I the land-grab became serious, and Oliver Cromwell developed it into full-scale conquest accompanied by massacre and deportation. Scottish Presbyterians were encouraged to settle in Ireland as a way of consolidating the land taken and establishing a Protestant power base in a Catholic country.

The accession of the Catholic monarch James II to the English throne brought brief hope to the Irish, which guttered at the Battle of the Boyne (1690), when Catholic troops supporting the now-exiled James were defeated by William of Orange, a Protestant Dutchman whom the English parliamentarians had invited to take the throne. The defeated Irish were subjected to Penal Laws brought in to subjugate them and suppress Irish culture. After a rebellion in 1798, inspired by the French Revolution, Britain passed the Act of Union, incorporating Ireland into the United Kingdom.

The following century saw the potato famine, which affected a number of countries but was made catastrophic in Ireland by British government policies, mass emigration as a result of the famine, and some limited progress towards democracy: a small minority of Catholics was given the vote.

An independence struggle followed the Easter Rising of 1916 and lasted until Partition in 1921, when the south became a Crown Dominion as the Irish Free State, and the northern six counties remained part of Britain as a largely self-governing province.

A Belfast businessman took Morton to see the palace being built for the Northern Ireland Parliament at Stormont. “What are you going to do with the place when Ireland becomes one country?” the writer teased.

‘“We’ll never join in with the South,” he said indignantly… “All we want is bacon from Limerick and stout from Dublin.”

“Is it right that the industrial North should be a separate entity in any country?”

“How could we be ruled by a lot of Catholics,” he blazed up.’

That was it. In Northern Ireland the Protestants were a majority. If Ireland were united – the goal of Irish nationalists, including most Catholics – they would be outnumbered.

Ireland achieved full independence in 1949. In Northern Ireland, the Protestants governed through the Ulster Unionist Party. But tensions were rising. The Catholic minority was suffering discrimination in housing and employment, and a civil rights movement provoked a savage response from the Royal Ulster Constabulary (90% Protestant). In the 1960s sectarian violence forced thousands of people out of their homes, mainly in Catholic areas (there was by now a sharp sectarian divide between neighbourhoods in Belfast).

At this point there arose a fire-and-brimstone Presbyterian preacher with a powerful pair of lungs. In his long career, he was to roar “I denounce you, Antichrist!” at the Pope in the European Parliament and “Save Ulster from Sodomy!” on the streets of Belfast. His name was Ian Paisley and I was once told by a Belfast journalist that he was a very good constituency MP. He had been behind the repression of the civil rights movement.

In an increasingly polarised situation, the British Government took the fatal step of sending in troops to keep the peace. The Irish Republican Army, born in the struggle for Irish independence, took up the task of defending Catholics. It perceived the British troops as an occupying army, which they increasingly resembled. Loyalist paramilitary groups emerged; one, the Ulster Volunteer Force, petrol-bombed Catholic homes, businesses and schools. Loyalists and IRA killed each other, the IRA fought the Army and the RUC, and civilians died in the crossfire or because they’d been in the wrong place at the wrong time or somebody thought they were informers.

In 1971 Dr Paisley founded the right-wing Democratic Unionist Party.

A lethal tit-for-tat was developing: violence was followed by repression, which provoked further violence. The British Government introduced internment without trial. The IRA embarked on a bombing campaign in mainland Britain. The British Government re-imposed direct rule. IRA prisoners in the Maze prison embarked on a hunger strike, and ten died. Paratroopers of the British Army killed 13 civil rights protesters on a march. The IRA blew up a hotel in Brighton and narrowly missed Margaret Thatcher.

“No surrender!” bellowed Dr Paisley.

Whitehall was trying diplomacy as well as counter-terrorism. The Sunningdale Agreement (1973) attempted to establish power-sharing and a cross-border Council of Ireland. It collapsed under concerted Loyalist opposition, led by Dr Paisley, in the course of which the Ulster Defence Association killed 33 people in Dublin with car bombs. The Anglo-Irish Agreement (1985) would have given the Irish Government an advisory role in the province’s affairs; it was rejected by Irish nationalists because it acknowledged that Northern Ireland was part of the UK, and was ferociously opposed as treason by Loyalists.

“Never, never, never, never!” thundered Dr Paisley outside Belfast town hall.

The IRA lobbed a mortar into the garden of 10 Downing Street and narrowly missed John Major.

Both sides were trapped in the violence, and it was making the British Government look like Tamburlane. Whitehall had been talking secretly to Sinn Féin, the IRA’s political wing, for a long time. But there were two apparently immovable stumbling-blocks: the first was that the Government insisted the IRA give up its weapons before any peace was agreed, and the IRA refused to give up its weapons until peace had been agreed. The second was the Rev. Ian Paisley.

The task of crafting the Northern Ireland peace accord took immensely patient and skilful negotiation. Among those involved in it were John (now sir John) Major, Tony Blair, Bill Clinton’s envoy George Mitchell, chief negotiator Jonathan Powell, Northern Ireland Secretary Mo Mowlam, Sinn Fein President Gerry Adams, the Taoiseach of Ireland Bertie Ahern, John Hume of the Social Democratic and Labour Party (Irish nationalist) and David Trimble of the Ulster Unionists. Dr Paisley’s DUP, now on its way to becoming the largest Unionist party, obstructed.

An international treaty and known ever since as the Good Friday Agreement, it was agreed on Friday 10 April 1998, and came into force the following year. It established a devolved Northern Ireland Assembly in which power would be shared between two blocs, unionist and Irish nationalist. Its guarantors were the Governments of Britain and Ireland, who would mediate in case of dispute. The First Minister was David Trimble of the Ulster Unionist Party; the deputy First Minister (who has equal powers) Seamus Mallon of the SDLP. The DUP, which had opposed the peace process all the way, nevertheless took seats in the Assembly.

A turbulent peace descended, but it was peace. The IRA put its weapons beyond use. Meanwhile, politics were moving away from the centre. Dr Paisley’s DUP grew to eclipse the more moderate UUP, and the moderately-nationalist SDLP lost ground to Sinn Féin. In 2007 Ian Paisley was elected First Minister with, as his opposite number, Sinn Féin’s Martin McGuinness, a former IRA commander. They got on very well.

Power-sharing has on occasion broken down, sometimes for years, but talks have put it on the road again. It was up and running in January 2017, more than two years after Dr Paisley’s death, when a scandal about a renewable energy scheme overseen by Arlene Foster, the current DUP leader, provoked the resignation of Martin McGuinness. This brought about the collapse of the Assembly, since Sinn Féin would not nominate a replacement.

Now Theresa May, desperate for the seats she has lost, proposes to make up for them by taking the DUP into a “confidence and supply” partnership.

If she does not understood how totally inappropriate this is, she is not fit to be Prime Minister. She has taken to using an old name for the Tories, the “Conservative and Unionist Party.” But that referred to the Ulster Unionists (UUP), a centrist party that worked with the peace process.  The DUP, fundamentalist, homophobic, anti-abortion, Creationist, climate-change-denying and the lineal descendant of its founder, is a monstrosity in the politics of mainland Britain. And it will want money in return for its support: £2 billion, reportedly. That money will come out of the funding of schools and public services that are already cut to the bone in the rest of the UK.

But the main reason why it is unacceptable is that for the British Government, which is a guarantor of the Good Friday Agreement and an arbiter in the power-sharing process, and therefore has to be impartial, to be depending on one of the two main parties in that process for its survival in the House of Commons is impossible. This has been said by Sir John Major, Jonathan Powell, Sinn Féin President Gerry Adams, and by many others. If the Government is not trusted to be impartial, that puts the power-sharing arrangement in jeopardy. The power-sharing is built on the peace, but the peace, in turn, depends on the power-sharing.

“The hard men,” Sir John Major warned, “are still lurking there in the corners of the community.”

We know they are. Every now and then they do something violent and stupid which is not as pointless as it seems. They liked the violence and they want it back.

Does Theresa May care about any of this? No. There is nothing she won’t sacrifice to hang on to power. What she plans to do with that power threatens the future of Britain. What she will risk in order to hang on to it threatens a peace long laboured for in Ireland by men and women beside whom she is a political pygmy.

 

Frabjous day

John Tenniel

 

JABBERWOCKY

 

’Twas brillig, and the slithy toves

Did gyre and gimble in the wabe;

All mimsy were the borogoves,

And the mome raths outgrabe.

 

‘Beware the Jabberwock, my son!

The jaws that bite, the claws that catch!

Beware the Jubjub bird, and shun

The frumious Bandersnatch!’

 

He took his vorpal sword in hand;

Long time the manxome foe he sought –

So rested he by the Tumtum tree,

And stood awhile in thought.

 

And as in uffish thought he stood,

The Jabberwock, with eyes of flame,

Came whiffling through the tulgey wood,

And burbled as it came!

 

One, two! One, two! And through and through

The vorpal blade went snicker-snack!

He left it dead, and with its head

He went galumphing back.

 

‘And hast thou slain the Jabberwock?

Come to my arms, my beamish boy!

A frabjous day! Callooh! Callay!’

He chortled in his joy.

 

‘Twas brillig, and the slithy toves

Did gyre and gimble in the wabe.

All mimsy were the borogoves,

And the mome raths outgrabe.

 

Lewis Carroll, Through the Looking-Glass

 

 

 

 

“Wolf!”

 

She wanted this election to be about her. She chose her platform: “strong and stable.” Implicit in this was the idea of her as defender of the country and its values. Her opponent by contrast was depicted as weak, unpatriotic, unreliable on defence, and even an ally of terrorists (the IRA).

Very well.

On 22 May a young British-born man of Libyan parentage, living in Manchester, detonated a home-made bomb in the foyer of a Manchester concert hall and killed 22 people, injuring 119 more. Within a few hours he was named as Salman Abedi and the British police said they believed he had been acting alone.

That was quick, I thought. How could they be sure of so much so soon? It was as if they knew something else they weren’t saying.

They did.

One should always keep one’s eye on the House of Commons Select Committees. I am indebted to a friend who sent me a link to John Pilger’s website www.johnpilger.com (Terror in Britain), where I found a very interesting piece of information. Last September, the Foreign Affairs Select Committee concluded that David Cameron had taken Britain to war against Colonel Gaddafi on “erroneous assumptions” and that “the proposition that Mu’ammar Gaddafi would have ordered the massacre of civilians in Benghazi was not supported by the available evidence.”

On the basis of that proposition, Britain took part in a NATO operation that carried out 9,700 “strike sorties,” used fragmentation bombs and depleted uranium, and carpet-bombed two Libyan cities. Unicef reported that a high proportion of the children killed were under ten. After Gaddafi’s death, the country descended into chaos.

Where did that false information come from? “Salafist militias facing defeat by Libyan government forces,” explains Pilger.

Overthrowing Gaddafi had been a goal of Western policy for decades. He was a tyrant, but that wasn’t the problem; the problem was that he was an Arab nationalist, a pan-Arabist, a socialist (he did much to improve Libya’s housing, literacy and health care), that he controlled most of Africa’s oil wealth and, latterly and fatally, that he was intending to abandon the petrodollar, which underpins America’s economy.

In addition to the above, Britain had a personal animus against Gaddafi (Lockerbie; the shooting of PC Yvonne Fletcher outside the Libyan embassy). When the revolt against him broke out in 2011 as part of the Arab Spring, the British authorities smiled on the anti-Gaddafi Islamic militants living in Britain, some of whom had been under Home Office control orders.  The control orders were lifted. The militants were allowed to travel to Libya to fight, and travel back. The Home Secretary at the time was Theresa May.

Among the militias was a group that had been active against Gaddafi for a long time, the Libyan Islamic Fighting Group. It had a base in Manchester. It was “cultivated,” says Pilger, by MI5. The Middle East Eye website, which has a good article on this subject (May 27, “Sorted” by MI5), shows a mural on a wall in Tripoli commemorating the “Manchester fighters.”

Salman Abedi’s parents were members of the Libyan Islamic Fighting Group. So was Salman Abedi. As a teenager he had waged jihad against Gaddafi.

There was nothing of this in the announcements by the British police immediately after the bombing. The prompt and confident assertion that Abedi had “probably been acting alone,” combined with the void around it, was puzzling. Even more puzzling was the furious response of the British Government when a leak from the FBI to a Washington journalist, which identified Abedi before he had been named in Britain, turned out to have surfaced in an American newspaper.

It’s now known that Abedi repeatedly travelled to Libya and back after 2011. The FBI had tracked him, and had told MI6 he was looking for a “political target” in Britain. Nevertheless, the British Government, with Theresa May now in Downing Street, had allowed him in May 2017 to go to Libya again,  where he contacted an IS group based in Syria. He returned via Düsseldorf to Manchester just a few days before he set off his bomb.

The Government’s anger at the leak seemed disproportionate (and Theresa May doesn’t say boo to Trump) if all the FBI had done was jump the gun in naming Abedi. However, that wasn’t all: the FBI had blown the gaff on the British pretence that Abedi was merely a criminal loner. It revealed an “extensive network” (Pilger) of contacts. This information, which has since disappeared from the record, threatened to open up the British involvement with the Libyan extremists and raise questions about the results of British interventionist foreign policy in the Middle East.

In the Daily Mail (26 May), Peter Oborne attacks MI6 for endangering the country’s security. In its untrammelled pursuit of the Government’s foreign policy objectives, he says, it encouraged the Home Office to lift the control orders on the extremists. He accuses MI6 officers of “creating a generation of British-born jihadis who are prepared to do anything … in their efforts to destroy this country,” and says that the Manchester bombing was “in part a direct consequence of MI6’s meddling.”

This is Jeremy Corbyn’s turf and he didn’t flinch, although he must have known what would happen. Speaking in London, he said, “Many experts, including security professionals in our intelligence and security services, have pointed to the connections between the wars our government has supported and fought in other countries and terrorism here at home… An informed understanding of the causes of terrorism is an essential part of an effective response that will protect the security of our people that fights rather than fuels terrorism.”

That is true and important and it’s common sense, but it provoked outrage, although I don’t recall any outrage when Eliza Manningham-Buller said the same thing: silence descended instead. And no-one is going to take on Dacre’s Mail (although that article is not as iconoclastic as it sounds1). But to make government morally responsible for the effect of its wars is not normally allowed: it would make war impossible. Corbyn would like to make war impossible, which puts him, in Parliament, in the position of a sheep in an abattoir.

Money and jobs depend, in one way or another, on war. Publication of the report David Cameron commissioned on overseas funding of terror may never see the light of day because it will inevitably focus on Saudi Arabia, to which our Prime Minister recently paid a trip that resulted in a major arms deal. We are going to need money and jobs after a hard Brexit. Saudi Arabia funnels millions of dollars to terrorists. Nevertheless jobs are more important.

Corbyn’s willingness to talk about this difficult, tabooed stuff is why he has to be vilified. However, to many people that willingness is like fresh air in a tomb. If the public is getting tired of the lies and hypocrisy of government, nowhere are the lies thicker than around national security. Theresa May’s mechanical iteration of opaque platitudes doesn’t impress, and is not attractive.

She finds herself on the back foot, as well, on ground which she probably thought she commanded. She is a former Home Secretary: she has authority. But that, now, is the problem. She was in charge of the Home Office when the control orders on Islamic extremists were lifted. As Home Secretary, she cut police numbers by 20,000. She was warned by the Police Federation about the likely effect, but accused it of crying “Wolf!” More than that, it has emerged that in 2015 she was planning even deeper cuts, but was prevented by the then Chancellor, George Osborne.

Corbyn thinks she should resign. So does David Cameron’s former strategy chief, Steve Hilton, who on Monday tweeted, “Theresa May responsible for security failures of London Bridge, Manchester, Westminster Bridge. She should be resigning, not seeking re-election.”

It isn’t the only thing. There is the toadying to an American President who is a climate change denier and insults the Mayor of London. There is the very disturbing state of our schools, which she will improve by eliminating free school lunches. There is the sinister Naylor Review, which she intends to implement, which will asset-strip the NHS. There is her arrogant refusal to answer questions or to debate. There is her complete unpreparedness for the Brexit negotiations; the “12-point Brexit Plan” is the length of a shopping list and less informative, whereas the EU has released a raft of position papers.

But the security failure is arguably the worst thing. People have died, many of them children. Her first duty is to protect, and she has not done it. Who, in this contest, is weak, unpatriotic, unreliable on defence and an ally of terrorists?

And she won’t tell us the truth. Ever. Her every instinct is to conceal.

This country is about to sail into the eye of a hurricane. If we are going to come through it, we need to understand what is happening. Cameron was right about this much: we are all in it together. We cannot afford to have a dead-eyed secret-hugger, who does not trust either the passengers or the crew, as Captain.

 

1  Oborne attacks MI6 and praises MI5, and claims that the two organisations are working against each other. It’s clear from Pilger’s report and the M.E.E. website that MI5 is equally to blame in that it “cultivated” the militants and allowed them to travel. But the Home Secretary is responsible to Parliament for the conduct of MI5, whereas the Foreign Secretary has to answer for MI6. Oborne is protecting Theresa May.

 

 

 

 

It’s not raining

 

Mention the European Court of Justice to a Brexiter and it is almost certain to provoke an impassioned speech about Abu Qatada.

This radical Muslim cleric was detained in Britain in 2002 in the aftermath of 9/11. He had been tried in absentia for terror offences in Jordan and found guilty. Successive British Home secretaries tried to deport him to Jordan but the European Court of Human Rights ruled he could not be sent back there if he was to face retrial based on evidence obtained through torture. Theresa May finally managed to ship him off from Belmarsh in 2013 after an agreement was obtained from Jordan that evidence obtained through torture would not be used. He was tried and acquitted.

There was strong feeling at the time, in both Parliament and the country, about the European court that was preventing his deportation. David Cameron talked of pulling Britain out of the European Convention of Human Rights, and replacing the Human Rights Act, which enshrines it in British law, with a British bill of rights. Theresa May, as Home Secretary, was in agreement.

It has become familiar Tory ground, colonised with enthusiasm by Brexiters. Foreigners should not be allowed to tell us what our rights are, or what anyone else’s rights are if they are resident here. We are quite capable of making our own laws. Brussels should bugger off and stop telling us what to do.

However, Brussels was not telling us what to do about Abu Qatada. It was Strasbourg that was telling us what to do. The obstacle was not the European Court of Justice, created in 1952 as a part of the European Union to rule on disputes between member countries and ensure the uniform application of EU law across them, but the European Court of Human Rights, set up in 1959 with Britain as a founder member, to safeguard basic human rights across the continent. The two courts are quite separate. The European Court of Human Rights is not part of the European Union. Our status as signatories to it will not be affected by our leaving the European Union.

Do not expect Theresa May to clarify this for the British electorate. The confusion, which is almost universal (I heard a US Senator conflate the two recently), works to her advantage. Abu Qatada had to go; therefore the court that said we couldn’t deport him was wrong; since that court was European, we are right to leave the EU. Thus goes the logic, or what passes for it. And since it was Theresa May who got rid of him, here is another reason for voting for TM as PM.

The confusion is compounded by the fact that those Tory right-wingers who do know the difference between the two courts loathe them both equally and for the same reason.  They believe that the ECJ, too, interferes with British sovereignty. In a limited sense it does, of course; in that same limited sense, it interferes with all member countries’ sovereignty and that is the point of it. It is the legal authority that guarantees transactions between member states and to which they can appeal in a dispute.  Without it, or something like it, the Union could not exist.

Removing Britain from the jurisdiction of the ECJ is Point 2 in Theresa May’s 12-point Brexit Plan.

This issue goes to the heart of the row that erupted immediately after the tragic bombing in Manchester: security. How is the safety of this country from terror attacks best assured? The answer clearly is “by international co-operation.” However good our security services are, they are only as good as their information, and much of that information is held abroad. They must have easy access to it. That means they must be willing to part, reciprocally, with information they hold. This implies mutual trust. They need to able to pursue suspects beyond their own borders. All of this is obvious and on this occasion, fortunately, it worked.

It may not always work.

Europol is the EU’s law enforcement agency; modelled on Interpol, it assists member states in fighting terrorism and serious international crime. Eurojust co-ordinates criminal investigations and prosecutions across borders and facilitates extradition requests. The European Arrest Warrant is valid throughout all member states and covers 32 crimes including terrorism and human trafficking. SIS II (second-generation Schengen Information System) is a database that allows police forces to share real-time alerts on suspects and missing people. All these are functions of the Justice and Home Affairs Council of the EU. We will forfeit our membership of the JHA when we leave the EU.

No-one questions our need to participate in these measures. Theresa May, in November 2014, when Britain had negotiated a temporary opt-out on some of the JHA measures and was about to vote on whether to opt back in, said, “If we were to vote against the motion tonight and did not opt back in to the measures […] we would find ourselves kicked out of Europol within weeks and our extradition arrangements would be thrown into legal uncertainty, potentially for years. That would risk harmful individuals walking free and escaping justice, and would seriously harm the capability of our law enforcement agencies to keep the public safe.”

The Government says it will negotiate special arrangements for our access to the JHA but will not say what arrangements. After the Manchester bombing, Nick Clegg accused the government of putting the country at risk by its attitude to Brexit. He focused particularly on SIS II, which is used “16 times a minute” by British security forces. The Government heatedly replied that he was talking “nonsense” and that security would be “an important priority in the negotiations”, adding that it was not “in the EU’s interest to lessen that relationship.” The outlines of the Government’s negotiating strategy may be discerned in that last statement, which is a veiled threat. It means that Britain has valuable security expertise and might choose to keep it to itself if Europe doesn’t give us what we want.

It is true that we “have a strong hand” in security matters: “The UK played a prominent part in designing and constructing the JHA system” (Clegg).  The question is whether it is strong enough and whether, in any case, this is the right tactic.

The EU has its rules. SIS II is only available to full members of the EU or participants in Schengen. The same applies to the EAW. Europol can enter into either a “strategic” or “operational” partnership with a non-EU state, but both have disadvantages: strategic partners cannot access data or intelligence on individuals, and operational partners have no direct access to the Europol Information system.

The Government is hoping to negotiate a “bespoke solution” that allows Britain the access to JHA it needs. In principle a bespoke deal is possible, but there is a major stumbling block: the UK Government’s rooted hostility to the European Court of Justice.

In a 20-page paper on Justice and Home Affairs Cooperation, published in December1 , Nick Clegg explains why the ECJ would continue to have a major role in any post-Brexit partnership agreement. The reasons include that the EU can only act in compliance with its Charter, “of which the ECJ is the ultimate arbiter”; that “any agreement needs to be policed”; and that “some form of dispute resolution is necessary in any international agreement.” Yes, it might be possible to establish an independent arbitration body – it has been done for Norway and Iceland covering Europol, with recourse to the UN in case of a dispute – but Britain would require virtually full membership of the JHA, and there is no precedent for the creation of an arbitration body of that scope.

Nevertheless, “A JHA partnership agreement could be agreed if goodwill exists,” Clegg thinks. “We… have very good bilateral relationships with member states… We have a culture of respect for human rights and for the rule of law. These are all good starting points.”

This was written in December. Consider what Theresa May has been doing in recent months. She has gone out of her way to antagonise the EU. She has whipped up suspicion of Europe in this country. What price a bilateral deal with Europe if our Prime Minister has scuppered relations before the talking starts?

And what happens then, if Britain lurches uncontrollably out of the EU under her bungling leadership? Clegg sets it out under seven terse points. But May has already told us. She said it in November 2014. It would “risk harmful individuals walking free and escaping justice, and would seriously harm the ability of our law-enforcement agencies to keep the public safe.”

I have a picture in my mind of a child walking into a rain squall, head down and hooded, fists clenched, shouting, “It’s not raining!”

But I was six when I did that.

 

 

1 www.libdems.org.uk/brexit-challenge-justice