Tick, tick

 

 

 

I am put in mind of Captain Hook, who was haunted by a ticking clock. Inside a crocodile, if I remember rightly.

Theresa May said last week that there can’t be a transitional arrangement (she calls it an implementation arrangement) with the EU until the final trading relationship between the EU and UK has been settled.

“The point of the implementation period is to put in place the practical changes necessary to move to the future partnership,” she said in the Commons, “and, in order to have that, you need to know what the future partnership is going to be.”

Well, obviously. If we’re in transit, we must decide where we’re going. If we’re implementing, we must know what we’re implementing.

Yvette Cooper asked Mrs May if she meant that there wouldn’t be a transition deal if no longer-term UK-EU trade deal was agreed by this time next year. (As there would have to be, if we were to have a trade deal by the time we left in March 2019. And as there can’t possibly be: it is only parts of the Government and certain mad people who think a trade deal with the EU can be done within a year from now.)

Mrs May then said, with her invariable talent for obscuring what has just been clarified: “An implementation period is about a period that is adjusting to the future relationship. That’s the basis on which I have put it forward to the European Union and that’s the basis on which we’ll be negotiating an agreement.”

There was consternation. Not at the Prime Minister’s failure to answer a question, which is routine, but at her apparent certainty that we couldn’t negotiate a transitional agreement, which business needs desperately, until we had negotiated a trade agreement, which the Government needs desperately and hasn’t begun to negotiate because it is still stuck in the starting gate.

The public reaction prompted a rethink by the Government. Theresa May had not meant what she said. Or perhaps she had but it was hypothetical. One must always remember that words mean nothing to this government. Its utterances fall apart like the seed-head of a dandelion when the wind blows. Unfortunately, words are all we’ve got with which to hold it to account.

What she had said, before Yvette Cooper asked that inconvenient question, was, “You need to know what the future partnership is going to be.” What does “know” mean?  How do you know you know? Does your future partner also have to know? Does your future partner have to agree? If your future partner does not entirely agree, what then? And so on.

And what did she mean by “settled”? “Settled” could mean hammered out in detail. Or it could have the meaning of “settled on”, as in, “Let’s settle on the Canada option then, since at least most people around the table have heard of it.”

On Monday she appeared to say something unequivocal: “If no final deal has been reached by this time next year, then there would be no transitional deal.” “Reached” here definitely means “hammered out.” And that means no transition.

Michel Barnier then said, contradicting her, that, while a transitional agreement could be possible before March 2019, a future trade deal would have to be negotiated over several years.

That seems clear. What a blessing the Gallic intellect is.

What Barnier didn’t say was what stage the trade negotiations need to have reached for a transitional arrangement to be agreed. Nor have I found this crucial information anywhere else. David Davis says he is confident a transitional agreement will be reached early next year. He did not say what his confidence was based on. Theresa May now says that she expects trade talks and the transition talks to proceed simultaneously; this doesn’t help either, when nobody knows when trade talks will start.

In fact, nobody seems to know anything. Except the cut-off date. 29 March 2019. Tick, tick, tick.

David Davis is bullish about all this. On Wednesday he was talking with relish at a Commons committee hearing about the probability of the talks going to the wire, as though keeping one’s nerve through this process were a heroic military exploit. “The way the Union makes its decisions tends to be at the 59th minute of the 11th hour of the 11th day, and that is precisely what I would expect to happen…If there is a time limit on negotiation the union stops the clock, it assumes that it’s still at 11.59… sometimes over the course of 24, 36, 72 hours…

“It will be a lot of pressure, very high stress, very exciting for everybody watching.”

If the Secretary for Exiting the European Union thinks it will be exciting for EU nationals in Britain and UK citizens in Europe to be biting their nails into the small hours while they wonder what the fate of their marriages, their children, their jobs and their homes is, and for business leaders to watch helplessly as the ground erodes under their investments while he plays poker with Barnier, he should be thrown out of office.

However, that was not what created outrage. He had been asked, in a Commons committee, about the vote MPs are supposed to be getting on the final deal with the EU. He was effectively saying there wouldn’t be time for it, and it would have to be held later.

At PMQs the Chamber erupted. Stephen Kinnock asked the Prime Minister to explain “how it is possible to have a meaningful vote on something that has already taken place.”

Theresa May hastened, against howls of derision, to give her minister an escape route, but it was difficult when he had nailed himself so exuberantly into the coffin. The last few days have seen a limping series of explanations. The word “hypothetical” has been thrown around a great deal. It has been pointed out that the scenario Davis depicted cannot happen because six months have to elapse for the deal to be ratified by the 27 member countries before it is signed.  (These days, the fact that something can’t happen does not mean it won’t.)

It is perfectly apparent that the Government doesn’t know what it’s doing. It is incompetent on the most basic level: it can’t get its dates in a row. The trouble is, the calendar is vital to these negotiations. That is something David Davis seems never quite to have got on top of. His negotiating strategy is to keep everything in the air until the last moment, when it will all come together by a magnificent act of intuition or of God. He began by attempting to make discussion of the Irish border dependent on discussion of customs. He now wants to make everything dependent on everything. If it is, then naturally it can only come together at the last moment. Hence his enjoyment of the scenario he painted at the Commons committee hearing.

He has doubtless employed this strategy in many negotiations before. They were business negotiations. He hasn’t grasped the difference. He will also remember that the Good Friday peace agreement was reached in the small hours, that the negotiations with the IRA circled perpetually around demands the granting of which was always dependent on the granting of something else, and that the same is true of the negotiations between Israel and Palestine. There are precedents aplenty. But they are irrelevant.

He hasn’t fully grasped – or he has given the wrong weight to – the fact that, in these negotiations, time itself is a wasting asset. He can’t admit that there is a discrepancy in the power balance and it is not in his favour. He won’t take seriously that a sequence has been stipulated for these talks in which Part A has to be completed satisfactorily before Part B is embarked on, and that this stipulation over-rides the EU’s own “nothing is agreed until everything is agreed.”

If Part A has to be completed first, it is not possible to keep everything in the air until the last minute, is it?

Deny, deny. The Government is now trying to reverse the sequence: progress on Part A will depend on progress in Part B. It would be interesting to see what would happen if the EU agreed to this, because starting trade negotiations would make no difference to the Government’s ability to sort out the money, citizens’ rights or the border. This is because the problems it has with those three issues are problems with its own party, the electorate and (in the case of the border) the nature of reality, not with Brussels. The EU should call the Government’s bluff – and indeed perhaps it is getting ready to do so, with its hints about the “scoping” of trade talks.

Keeping this game going as long as he can is Davis’s only hope. Make everything dependent on everything else. Like that children’s game in which you get in a circle and all sit on the knees of the person behind. The circle stays up for much longer than you’d expect. In the end, of course, it falls down.

Tick, tick.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Economical with the truth

 

British governments love secrets, and hang on to them.

Spycatcher is cited with some glee by people who enjoy seeing an overbearing government making a fool of itself. It was a book written by a former M15 officer about the supposed goings-on in that establishment, and was published in Australia in 1987 because it had been banned in Britain. It alleged that MI5 had conspired to undermine the premiership of Harold Wilson, had bugged Commonwealth conferences, had plotted to assassinate President Nasser, and that its former Director General, Roger Hollis, had been a Russian mole.

It was a rather bad book written by a man aggrieved about his pension rights, and the government would have well advised to let it lapse into obscurity. However, the Prime Minister at the time was Margaret Thatcher, in whose nature such a course of action did not lie. A great deal of legal bigwiggery descended on Sydney with the object of suppressing the book. The only thing anyone can remember about the case is an expression used by Sir Robert Armstrong, Mrs Thatcher’s cabinet secretary; in one of his replies he said that he had not lied about the matter in question, he had been “economical with the truth.” The roar of ribald Aussie laughter is still echoing.

The British Government lost the case, and appealed. While the appeal was in progress the book, which all along had been available in Scotland, was published in the USA. The American publishers, Viking Penguin, set up stalls selling copies at airports where flights were departing for the UK.  A lot of copies made the trip and were not stopped at customs.

The Sunday Times started publishing extracts. Other newspapers printed reviews. The Government lost its head and threw injunctions about. Sales had reached two million. By the time the Law Lords ruled that no law had been broken because the book no longer contained any secrets, there were copies in every bookshop in the land. The final humiliation for the Government came in 1991, when the European Court of Human Rights ruled that it had breached the Human Rights Act by attempting to gag the press.

Peter Wright recouped his pension and died a millionaire.

The Thatcher government was just doing what it knew. Five years earlier, during the Falklands War, an Argentine Exocet missile had struck HMS Sheffield amidships, causing a devastating fire. Twenty sailors died and a further 24 were injured. The disaster was reported in the press, but not in any detail. The report of the Board of Inquiry was suppressed.

Thirty-five years later, the full, unredacted account has just been released (Guardian 15 October). It is a miserable catalogue of inadequate command, warnings ignored and procedures omitted. The anti-air warfare officer was having a cup of coffee in the wardroom when the missile struck; twelve minutes later he was still insisting it had not been a missile. This was partly because the intelligence assessment he had been given was bulky and difficult to read. The radar was being used for another transmission, and a warning from a sister ship that Argentine fighter jets were approaching was not heeded. The firefighting equipment was inadequate. There is a lot more.

No court martial was held. Two officers who had been found guilty of negligence by the Inquiry were “spoken to.” There was fear of “creating the wrong atmosphere in the press and souring the general euphoria,” in the words of the Commander in Chief, Admiral Sir John Fieldhouse. A senior civil servant (Clive Ponting) described it as “too great a catastrophe to be made public.”

The Admiral’s words are perfectly credible to anyone who remembers the public jubilation after the Falklands victory, and knows how indebted to it Mrs Thatcher was for her victory at the subsequent general election. One imagines the conversation around the polished table: nothing could bring the sailors back; publication could always wait. It would compound the grief of the families and do the MoD no good. National security was involved.

National security is always involved when the government wishes to cover something up.  It is the argument that never fails because it cannot be challenged: the would-be challenger lacks the information that would serve to challenge it. That information is secret. The stratagem is neat, but because it is so waterproof and so frequently invoked it commands little respect among the populace. However, that doesn’t matter, because the populace can do nothing about it.

Current circumstances allow Theresa May a new variant of “national security,” but it is essentially the same idea. It is that to divulge any information she doesn’t want to divulge about Brexit would “prejudice the Government’s negotiating strategy”. She has used this ever since becoming Prime Minister. David Davis used it last week when he refused to release the more than 50 studies the Government had commissioned into the effects of Brexit on different sectors of British industry.

That the Government had enquired at all into the effects of Brexit on the economy was news to most of us: it had always affected an insouciant optimism. So it should have been reassuring that the Government had done something. More than 50 seems rather over the top, but it had surely done the sensible thing.

Now it is doing the next sensible thing, and keeping the information to itself.

Is anyone surprised? This is Britain. This is a Government that has always refused to explain its plans for Brexit (it “means Brexit”). And this is a Government, hanging on by a tiny, bought majority, that is entirely preoccupied by internal battles and its own imperilled status. Such a government may, possibly, have a perception of where the interests of the country lie, but it is not going to follow it. Probably it does not have such a perception at all: its thinking is captive to its need to survive. The only thing it is free to do is protect itself.

This is why the studies were commissioned. They weren’t to help us prepare ourselves for the effect of Brexit. They were to help the government prepare for the effects of Brexit on us.

The Government’s nonsense over its negotiating position needs to be called. It is behaving as though predictions of what will happen to the UK economy after Brexit are a military secret, instead of a matter of legitimate concern to many countries. Anyone is free to research the economic facts, and the EU has doubtless done so. And we are not at war. If the Government thinks we are, that is because it is at war – with itself, a sizeable section of the electorate and the bogey-figures it has conjured up in Brussels.

If the studies Mr Davis is trying to suppress belong to anyone, they belong, not to the Government which has commissioned them, but to the people Brexit will affect.

What’s more, our taxes have paid for them.

There are several possible responses to an abuse of power. In some countries they riot in the streets. Here, we usually prefer a legal challenge. Molly Scott Cato, Green MEP for the South West and Gibraltar, and Jolyon Maugham, QC, Director of the Good Law Project, who supported Gina Miller in her Article 50 case against the Government, are bringing an action against David Davis to force him to release the papers.

If the Government follows form, it will refuse at every stage. If the court rules against it, it will appeal upwards to the Supreme Court. But this will focus attention on something it will certainly not want attention focused on; it could backfire as spectacularly as the attempt to ban Spycatcher. This is not an obscure and complex issue like the Withdrawal Bill (to which 300 amendments have been tabled, to the Government’s despair). This is something a child can understand: the Government knows what is going to happen to our money, and it isn’t telling us.

It is obvious that the information in the documents point to Brexit’s being an economic disaster. Now, it is true that the OECD has just predicted that it will be an economic disaster and the Government seems to have ridden out the storm; but while it is possible to dismiss the findings of the OECD (“another European think tank”), it is not possible to dismiss findings the Government has itself commissioned. Particularly if it has spent months refusing to publish them.

Published, they will definitely create the wrong atmosphere in the press and sour the general euphoria. They might even bring about the catastrophe of a demand for a second vote. Yet, the more tenaciously the Government hangs on to those findings, the worse things will look if eventually it has to give way. It must know this, but won’t know what to do. No half-way house is possible: it cannot publish excerpts. And when it deigns to tell us, as it has promised it will, which sectors of the economy the documents are about, this will only increase demand for the documents themselves.

It just has to pray that the court rules in its favour.

If the court does, one thing is certain: no-one will see those documents for 35 years.

 

 

The hypnotist’s fingers

 

We are being softened up for a no-deal Brexit.

The rhetoric about leaving without a deal has fluctuated. At first it was a hubris-inflected “See if I care!” with an aura of slammed doors. It was accompanied by talk of offshore tax havens. Sometimes there would be a Michael Howard gunship in the background.

It quietened down as the Government realised it had to pretend to start negotiating even if it had no idea how to do so. But now the topic is back in the news, the tone has become only marginally more civilised, and two white papers on trade policy and customs which declare the Government’s readiness to prepare, among other things, for Brexit without a deal have been published.

On Wednesday (11 October) the Today programme featured an interview with two businessmen, Karan Bilimoria, CEO of Cobra Beer, and Christopher Nieper, CEO of David Nieper, the womenswear company. They were asked what they thought would be the effect on their businesses of “crashing out” of the EU. Mr Bilimoria said it would be very difficult, because the huge and tariff-free market to which he at present exported “seamlessly” would be gone. Mr Nieper said it would make no difference, it might even be an opportunity because the fall in sterling would help him to export even more. Mr Nieper’s view is shared by only 2% of UK businessmen, but the BBC wasn’t going to tell us that.

An eight-page paper by Nick Clegg, International Trade and Brexit, published in September 2016, gives a bleaker view of what would happen under “no deal.”

He lists the effects with which we are now gloomily familiar – immediate tariffs on exports to the EU, bureaucratic customs checks, loss of passporting rights, non-tariff barriers – but also notes:

“It is, for example, hard to see how any significant animal and animal product exports to the continent could continue, given that imports to the EU have to pass through designated Border Inspection Posts, of which there are precisely none on the other side of the Channel… ”

He provides a link (http://leavehq.com/blogview.aspx?blogno=128) to the website of the Leave Alliance, which gives a grimly fascinating insight into exactly what border checks can mean when the paperwork has ceased to be valid: “Your container inspection is typically about £700 and detention costs about £80 a day for the ten days or so it will take to get your results back.  Add the testing fee and you’re paying an extra £2,000 to deliver a container into the EU.”

It won’t work simply to drop our own tariffs to the EU to zero and challenge it to reciprocate. For one thing, says Clegg, the EU couldn’t; WTO rules would compel it to apply the Common External Tariff. For another, if we drop tariffs on EU imports to zero we will be obliged to do the same for every other country in the world, and bang goes our negotiating capital.

Nor is it possible to put in place a simple, “quick and dirty” FTA covering essential sectors and leaving others for future negotiations. “The WTO rules require any FTA to be ‘comprehensive,’ covering ‘substantially all’ the trade between the transacting parties.”

Clegg concludes that an interim trade deal with the EU has to be in place by the time Britain leaves the EU. That will take several years and we haven’t started yet.

That we haven’t started yet is being blamed on the EU. It is accused of being rigid and unimaginative. The reality is that our negotiators cannot negotiate their brief.

The talks are stalled. There has again been no progress this week. M. Barnier is using the word “deadlock” of the financial settlement. Something is stopping the negotiations like the swinging pendulum of a hypnotist. And stopping them at the earliest stage. We are nowhere near getting to the trade talks for which the Government is desperate. Three matters – money, citizens’ rights, the Irish border – have to be dealt with first, and although the first two are tricky they are not impossible. Yet all that happens is a tidying-up around the margins.

It’s as if the real cliff-edge exists, not on the other side of a failed negotiating process, but within the minds of the negotiating team. At a certain point in the thinking, the ground gives way. A chasm appears. It cannot be bridged.

And this, I think, is the truth. The negotiations throw up difficulties of two different kinds. The first kind is a political problem, and it affects the financial settlement and citizens’ rights. The Government does not want to give ground on these issues because, after all its high-sounding talk, it doesn’t want to present a compromise to the British electorate. With intelligence, honesty and political courage, progress could be made. We do owe money. EU citizens here should be given an unconditional guarantee. But the Government is lacking in those three qualities.

The second kind of difficulty is a logical problem and it concerns the Irish border. This the Government cannot solve because it is insoluble. A border will come into existence, de facto, when the UK leaves the EU, but it has to be at the same time invisible and immaterial for the purposes of keeping the peace in Ireland, and visible and material for the purposes of keeping the EU’s customs union inviolate.  Any solution will be a fudge of one kind or another; since it is a fudge it will, under pressure, fall apart (which in the circumstances is highly dangerous); and for all these reasons the proposal won’t get past the EU anyway.

Together, these difficulties compose a Himalayan range of which the negotiations are still pottering around the foothills.

The Government’s main tactic for dealing with the impasse, apart from sending out a snowstorm of official papers which do not grapple with any of the difficult points, is to blame the EU for everything. It calls on it to be “flexible,” by which it means the EU should abandon the negotiating position that has been agreed between 27 member states for their common survival. Following Theresa May’s damp squib of a speech in Florence, it declares that the ball is now in the EU’s court.

It has one other tactic. It has tried to meld the Irish border issue with its customs union proposals, perhaps hoping to bamboozle the EU into talking about customs when the EU has said it won’t, or at least to muddy the question of whether the border has been sorted out or not. The EU has refused to play. Rightly: if it allows the UK to blur the lines on this, the UK will do it again, and the talks will descend into a fog in which everything becomes something else.

Fortunately, this makes it possible to blame the EU again.

So the team representing the national interest sits in Brussels angry, checkmated (self-checkmated) and effectively twiddles its thumbs. Time passes. Nothing terrible has happened yet. Something will turn up to save it. Perhaps, it thinks, walking out without a deal will save it.

And it will: it will save both its skin and its face. That is why no deal is becoming increasingly inevitable. But there is a vertiginous price to pay for no deal. It is not just trade that will go over the edge: everything will, starting with the lives of more than four million people who will find themselves, overnight, plunged into chaos because they have woken up in the wrong country.

That may not matter too much to some Brexiters, but, when the cost becomes apparent, it will destroy the Conservative Party.

That matters.

What could break the paralysis?

The only thing that can unlock the Irish problem is for the UK to stay in the customs union, but the Government is pledged not to do that. Or it could keep Northern Ireland in the customs union and move the border to somewhere in the Irish Sea. The DUP won’t allow it to do that.

The pendulum swings.

On Tuesday the Prime Minister gave an extraordinary interview on LBC radio which in any other circumstances would have signalled the immediate demise of the politician who gave it. Asked three times by Iain Dale whether, if there were a second vote, she would vote for Remain or Leave, she started by saying she didn’t answer hypothetical questions and, after much prevarication, evasion and hesitancy, stammered out, “Iain, I could sit here and I could say I’d still vote Remain or I’d vote Leave just to give you an answer to that question.

“I’m being open and honest with you.

“What I did last time around was I looked at everything and came to a judgement and I’d do exactly the same this time around. But we’re not having another referendum, and that’s absolutely crucial.”

She then said twice more, clearly seeking refuge in the statement, that we were not having another referendum.

Throughout this stumbling but dogged refusal to endorse her own policy, she looked terrified.

She is still Prime Minister, and the transcript of the interview has vanished from the website of the Guardian, which published it in full.

This unreal stasis cannot last. The pressure of the real world is growing. The hypnotist’s fingers will click, the patient will wake up. The house will fall down.

 

What’s it worth?

 

In the past three weeks, Theresa May has made two major speeches, of which the first failed of its intended effect and the second was a disaster. Boris has drawn provocative red lines in places that were not his business, and made an ass of himself in places which were. The Cabinet has skidded from one crisis to another and is trying to avoid unintentional suicide. The European Parliament has voted that not enough progress has been made in the Brexit negotiations for talks to proceed to the next stage, which renders largely pointless the Prime Minister’s speech in Florence.  Official figures showed the UK at the bottom of the G7 growth table; productivity has fallen for two consecutive months. And The Lancet has published a nine-page paper on the effect Brexit will have on the NHS.

The most important of these is the last.

Of all the facets of British life that Brexit will affect, the NHS is unique. It arouses not just passion, but unanimity. On immigration the nation is divided; on sovereignty there is room for endless argument. There is no room for argument about the NHS. It has to be protected. Even people who in their hearts would like to dismantle it dare not say so. During the referendum campaign an emotional voter told the BBC she would “literally go mad” if Boris Johnson’s £350 million per week for the NHS did not materialise. Her husband needed complex medication. I do not know what her mental state is now.

The Lancet’s paper, “How will Brexit affect health and health services in the UK?” (http://dx.doi.org/10.1016/S0141-6736(17)31926-8), surveys the risk to health-related issues in the UK of three scenarios: soft Brexit, hard Brexit and failed Brexit (no deal).  Its bleak conclusion is that each scenario poses substantial threats, that failed Brexit would be the riskiest outcome, and that the greatest threat facing the NHS will come from the impact of Brexit on the national economy.

Starting with the recruitment problem, it says it will be very difficult for the UK to be self-sufficient in the NHS or social care workforce in the foreseeable future. “Over 6,000 people from non-UK EU countries work in the NHS and 90,000 work in adult social care. One in ten doctors in the UK is a European graduate…” Moreover, “EU membership greatly enhances the attractiveness of the UK as a place to build a career in research and clinical roles.”

Or it did. The authors go on to discuss the ways in which Brexit would make the UK less attractive to these workers by undermining their legal entitlements.  Already in March, the Guardian  reported a 92% drop in the number of EU nationals registering as nurses in England, which the Royal College of Nursing blamed on the Government’s failure to provide them with any security about their future.

About 190,000 people who receive British pensions live in the EU and depend for health care on reciprocal UK/EU arrangements. The authors note that “the post-Brexit deal could continue this system and the UK Government appears to want to do so, although how this system can be reconciled with leaving the future jurisdiction of the European Court of Justice is unclear…The summary of negotiating positions on citizens’ rights shows no agreement on this crucial issue.”

It is indeed crucial, although the British Government did not at first think so and did not include it in plans for the talks. It also represents a bargain for the taxpayer: the UK pays about £650 million per year for care provided to British people in EU countries (about £500 million is for pensioners) and receives about £50 million for the care provided to EU-insured nationals in the UK. The amount paid by the UK is less than 0.5% of the total NHS budget and is “good value for money, because the average cost of treating pensioners elsewhere in the EU under these arrangements is about half the cost of similar treatment within the UK.”

Does Boris know this, one wonders?

The fall in sterling is already making imported medicines more expensive. “Events that affect the UK economy are likely to have a substantial impact on NHS finances,” the report notes. The Economist Intelligence Unit estimates that NHS costs will increase by £7.5 billion a year. It adds that “The overwhelming consensus of economic forecasts… is that Brexit will have a substantial long-term negative impact on the UK economy.”

As part of Brexit, we are leaving the European Medicines Agency, which had its offices at Canary Wharf, and which authorises and standardises medicines across the EU. This seamless system makes it possible to bring new medical products to the market more quickly and cheaply than would otherwise be possible. “In Switzerland and Canada, which have separate approval systems, medicines typically reach the market six months later than in the UK.” Perhaps we could pay to continue participating in it, but we will lose any power to influence it. (And how many other things will we have to pay to participate in, and why don’t we just stay where we are?)

The UK has its own Medicines and Healthcare Products Regulatory Agency, which at present is incorporated in the EMA. It will need to be beefed up, the report says, but “this process will be challenging, as the agency derives a substantial proportion of its income from the EU… and…it is likely to face difficulties in attracting specialised staff from other parts of Europe.” (My italics.)

Boris?

Furthermore, “A failed Brexit” (which would throw us on to WTO trade rules) “would cause immediate disruptions to importing health products whose trade is not governed by WTO rules. There is a major threat to the availability of radioisotopes for diagnosis and for cancer therapy, which the UK imports mainly from the Netherlands.”

Moving on to public health, the report casts a caustic eye on the UK government’s record on air quality. In 2015, only two London boroughs met EU standards for nitrogen dioxide concentrations. It’s not too good on water quality, either, although, prodded by the EU, it has improved. “This trend suggests that, in the absence of EU legislation, UK environmental standards could slip further.” There is a risk that the UK could become a prime target for the tobacco industry post Brexit, “as is the case in Switzerland.”

Did we know that the UK lags behind comparable economies in investing in research and development? The report tells us so. “It is a net beneficiary of EU research funding, attracting substantially more funds than it contributes to the common pool, and the loss of this funding would have severe consequences.” (My italics).

Why has it been left to a paper in a medical journal to say things that should have been on every billboard in the referendum campaign?

Whatever the form of Brexit, “vast areas of EU legislation will need to be adopted and adapted into national law and then potentially revised; the harder the Brexit, the greater the volume of legislation needed.” This task, say the authors, “risks overwhelming parliament and the civil service,” and they have grave concerns about the lack of scrutiny that is likely to result.

They are talking about the Withdrawal (or Repeal) Bill. Health is only one small part of the huge body of legislation involved. And health is something to which the Government seems to have given little consideration. It excluded the Department of Health from the negotiating process.

What hope in that case that, staggering under a mountain of directives and regulations about workers’ rights, safety of shipping, anti-competitive practices, farming, waste disposal and countless other matters, MPs will be able to give their minds to the importing of isotopes?

For the NHS workforce and EU/UK citizens who find themselves in the wrong place when Brexit strikes, “the impacts will be… potentially devastating,” the report believes. “However, the largest impact on the health system is likely to come from Brexit’s impact on the wider economy, on the ability of the state to function, and thus on the ability of the UK to finance the health service.

“Given the apparent lack of capacity of the government to rise to this challenge, we argue that the wider health community within the UK must work together to address these issues.” (My italics.)

Those last two sentences are extraordinary. When was something like this last said in a professional journal by scientists? It amounts to saying that the Government is not capable of protecting society from a grave harm and that the people must take charge.

The rest of the world seems to know this. Confidence in the UK economy is dropping like a stone. Inanimate objects know it: letters drop off the set behind the Prime Minister as, coughing convulsively, she attempts to “reset” her premiership. The psyche of our leading politicians knows it – hence the increasing inappropriateness of Boris Johnson’s antics, the Edwardian pastiche of contender-in-waiting-for-the-crown Jacob Rees-Mogg, and that self-immolating cough.

All of them point in the same direction: the sun is setting on the UK.

It doesn’t have to.

In Catalonia the people are in the streets. They know what they want and what it is worth to them.

What is the NHS worth to us?

 

 

 

 

 

 

A time-consuming cul-de-sac and a topic that will be covered elsewhere

There could have been a debate – a real debate, ending in a real vote – about the single market at the Labour Party conference. There wasn’t.

Jeremy Corbyn on Wednesday was riding high. It had been an exuberant gathering. “Oh, Jeremy Corbyn!” the delegates hymned. Relaxed, smiling broadly, he delivered a 75-minute speech which held the audience rapt: this must turn Theresa May green. He had found himself.

The price of this was what had happened the previous Sunday, when an email was circulated to delegates. It came from Momentum. It suggested four topics they should choose for the members’ debate. Each debate would be followed by a vote which would influence party policy. The four topics Momentum suggested were social care, the NHS, housing and rail. These were all, said the email, “crucial issues that the public care about.”

The public also care about Brexit, and motions had been received from 27 constituency parties, most of which argued for staying permanently in the single market. More than thirty MPs, plus MEPs, Labour peers and others had written to the leadership on the same subject. Between 70 and 80 per cent of Labour MPs are said to be Remainers, and roughly two-thirds of the membership.

Brexit, said Momentum coldly in its email, was “a potentially time-consuming cul-de-sac, and a topic that will be covered elsewhere.” What it meant by this was that a debate on Brexit had been tabled for Monday morning. But it was a debate that carried no vote. The delegates weren’t told that.

The delegates obediently chose the four issues they were told to choose, sidelining Brexit, which had been on the original list; but they resented being strong-armed and accused the leadership of “swerving one of the most important issues for a generation.” The NEC re-thought. It issued a one-and-a-half-page statement on Sunday evening setting out the party’s position on Brexit and saying that there would be a vote. However, it wouldn’t be the vote the delegates wanted.

The debate was held, and a vote was taken – on whether to support existing Party policy. At present this is to stay in the customs union and the single market until the end of the transition period, with a fudge about what happens next. The delegates, deprived of a chance to vote for an alternative, voted to support it.

There’s something particularly distasteful about this bit of bullying. The most despicable aspect of the Tories’ handling of Brexit is the way they put party before country. Here, in open view, was the Labour party doing the same thing.

The forced display of unity promptly fractured in recriminations, but the leader had been “saved embarrassment,” and that was what mattered. Jeremy Corbyn has gone from being the party’s major problem to being its most precious asset. Nothing must be allowed to dim the lustre. And in the end it didn’t. He stayed out of the Momentum row and the speech he gave on Wednesday was a masterclass in how to talk to an audience. In the course of it, he devoted about ten minutes to Brexit.

Those ten minutes had been worked on hard. Almost until the end, the tone was sure, the language was true:

“There is no bigger test in politics than Brexit now, an incredibly important and complex process, that cannot be reduced to repeating fairy stories from the side of a bus or waiting 15 months to state the obvious.”

The Brexiteers are an easy target. But he hit them hard: “…hopelessly inept… more interested in posturing for personal advantage than in getting the best deal for our country… Never has the national interest been so ill-served on such a vital matter.”

He warned of the danger of a “powerful faction” of Tories creating a tax haven on the shores of Europe, destroying jobs and public services. Then he got down to business:

… “That is why Labour has made clear that Britain should stay within the basic terms of the single market and customs union for a limited transition period.”

Millions waited.

“But beyond that transition, our task is a different one.”

Suddenly we could have been listening to the Maybot: “It is to unite everyone in our country around a progressive vision of what Britain could be…”

i.e., there is no vision.

“Labour is the only party that can bring together those who voted leave and those who backed remain…”

No party can do that.

“A Labour Brexit that puts jobs first… one that guarantees access to the single market -”

That’s the fudge. What does “access” mean? And how do you secure it?

“…and establishes a new cooperative relationship with the EU.” Oh, do stop.

He hauled the boat off the rocks just before it sank. “How Britain leaves the European Union is too important to be left to the Conservatives.”

The repainting of zebra crossings is too important to be left to the Conservatives.

What emerges from this is Corbyn’s utter lack of interest in Brexit. He believes it has to happen because “the people voted for it,” but what it means, where it’s come from, where it might go – these don’t even cross his mind. As for the EU itself, it is less than a spectre in his speech. I find even Boris Johnson’s fervid demonisation of the European Union preferable to this bloodless impassivity.

The European Union leaves Corbyn cold because he doesn’t understand it and he thinks it would stand in the way of his socialist dream for Britain.

The only politician who has the power to stop Brexit therefore won’t lift a finger to do so. We have been here before – since, in fact, the dispiriting days of the referendum campaign. Last year, however, there was a strong chance he would be dislodged; that chance has now gone. Indeed, apart from Brexit, most Labour voters would fight tooth and nail to keep him where he is, after that extraordinary manifesto.

And because of the manifesto, and because he has suddenly developed the charisma of a winner, it’s probable that many of the Labour delegates who wanted a vote on the single market nevertheless appreciate Momentum’s logic. No Labour party member wants to damage the party’s chances of winning the next election, and disunity doesn’t win elections. They think they can put a fence around Brexit and carry on as usual. But that is a mistake.

It is not possible to say “apart from Brexit.” Brexit dwarfs everything with its implications and ramifications, its threatened bonfire of rights and its expansion of executive power. It will touch everything. There is no “apart” from Brexit.

This means that if the Labour Party comes to power, and it has allowed Brexit to take place, it will have to build its socialist utopia on the basis Brexit has created. And it will find it cannot.

Why not? “There won’t be enough money,” said Alastair Campbell bluntly last week to Owen Jones.

What would be required for the construction of the kind of society Corbyn envisages? National utilities run for the benefit of the consumers, not the boardroom; public services reinvigorated and properly funded; sufficient and affordable housing? An NHS free of its shackles at last?

Noble aims, every one. They all require money. Lots of it.

If we crash out of the EU without an agreement, which is the most likely scenario, two sorts of people will do well out of it: the likes of Jacob Rees-Mogg, and the likes of the Mafia.

People like Jacob Rees-Mogg are averse to paying tax. The Mafia don’t pay tax at all. With luck, there might be enough in the coffers to fund the police, the Border Force and our contribution to NATO.

If by some miracle we do manage an “orderly Brexit” into Corbyn’s “progressive vision of Britain,” we will still be lumbered with the costs of Brexit. These will include paying the numerous subsidies the EU used to pay, stumping up for access to this and that indispensable European institution like Euratom, funding the creation of substitutes for EU institutions that Britain has cut itself off from and can’t do without, like the ECJ, and, of course, loss of earnings owing to the flight of businesses abroad, which means loss of tax base. This is the sunlit upland Corbyn will inherit.

Hasn’t anyone told Jeremy he can only have one of the two things he wants?

He must ditch his Islington Brexit. Most of his MPs are Remainers. They must have the courage of the Lib Dems’ convictions, rather than Theresa May’s, and campaign for a second vote on the EU “when” – as Vince Cable says – “the facts are known.” This is perfectly democratic, which is a lot more than can be said for the Government’s Henry VIII hocus-pocus, and it is perfectly rational, which is more than can be said for what is going on in Brussels.

It will leave him to deal with the EU when he wants to change the economic basis of Britain, which will be a great deal easier than dealing with no money.

And, next time, it won’t require the sinister manoeuvres of Momentum to get it through Conference.

 

A pulse in the eternal mind

 

 

The Brexit talks are stuck in the mud, the Cabinet are squabbling and Conference is coming up. Time to take control. Time, obviously, to hire a church in Florence and make a speech to Europe.

By all accounts, it was a very long speech (https://blogs.spectator.co.uk>Coffee House) and boring enough to send even Eurocrats to sleep. Not that there were many. Davis, Johnson and Hammond sat in the front row and the rest was mostly media. The Mayor of Florence was courteously present, and wore a sash, which was the most interesting event of the day. The cost to the taxpayer of this unnecessary jaunt has not been disclosed.

The Prime Minister said almost nothing she had not said before. The most important difference was that the combativeness had gone. (Well, it hadn’t worked very well, had it?) Europe was informed that we now wanted a two-year transition period after March 2019, during which we would remain in the single market and customs union and be subject to the ECJ.

Since the UK must have a transition period to avoid complete meltdown and this is the price the EU puts on it, that is only an admission of the obvious. However, it is the first time the Prime Minister has been able to accept the obvious, so it’s a step forward.

She also expressed herself willing to pay into the EU budget during those two years so that “our friends” would not be out of pocket because we’re leaving. The sum of £18 billion has been mentioned. So far, so sensible, but it doesn’t bite into the amount we owe from past commitments. May was ambiguous about this, saying we will honour them. Which of them? All of them? Small but vital words are missing. We might honour just a few past commitments that we feel like stepping up for.

And she made a concession on the rights of EU citizens. It is embarrassing that it had to be made at all. She undertook to write legal protections for them into the exit treaty; this is so that their rights could not subsequently be changed by a malign British government. But, crucially, she did not say what rights. The Government has laid out its proposals for EU citizens’ rights after Brexit and the EU considers them insufficient. So there isn’t much point offering to write them into law.

On the Irish border, the third of the three issues on which agreement has to be reached before the talks move on, the Prime Minister said nothing new. She cannot, because the government has no idea how to solve this problem now that the EU has dismissed its fairy border as a nonsense. She committed herself, again, to squaring the circle, and hoped the EU would help us out a bit.

The careful warmth with which the EU has welcomed Mrs May’s speech is reminiscent of the tone of doctors around a sickbed. The patient has moved a limb: ah! the patient is still alive! May has done the minimum that could have been done to prevent the talks from dying of inertia – but a week ago it wasn’t certain there would be even that much deliverance. A week ago, we were reeling from Boris.

His 4,200-word article in the Telegraph (16 September) came out of the blue; the Prime Minister had not been consulted about it. That in itself was a sackable offence, according to several senior Westminster figures. A seriously aggravating offence was that it was published six days before her speech in Florence. Also, of course, Boris’s ideas on Brexit are not the Prime Minister’s, and the article was entirely about Brexit, insofar as it was not about Boris.

Why did he do it? He’s been quiet for a long time, and one assumes it was not by his choice. He likes limelight, and got it. For days the story was Boris, Boris’s article, Boris and the £350 million, when it was supposed to be about Theresa’s forthcoming speech. She was in Canada by then, talking up a trade deal with Trudeau, after which she was at the UN. But then Boris had to go to New York too, at which point she collared him and made him fly home with her, to attend a Cabinet meeting whose agenda had suddenly expanded.

The initial consensus was that he had miscalculated, and had had to back down. But there was no agreement as to what he had wanted. To be noticed, naturally. To destabilise, almost certainly. But, to be Prime Minister? “He is behaving and speaking and acting strangely,” remarked Irish politician Phil Hogan, the EU’s agriculture commissioner, to the Standard, and ITV’s Robert Peston said, “I cannot shake off the notion that his recent behaviour is that of someone who just wants out – and perhaps even he does not quite know why.”

These commentators may be off the mark, but they nail a quality that is strange in the article, a sense of a man not fully certain where he is going, or what he wants, or even who he is. It is an extravagant and noisy piece, fizzing with ego, the authentic voice of Boris. It is chock-full of misleading and untrue statements. It is a fanfare for a fantasy, and the fantasy is the glorious future the country will have after Brexit. But it seems to be not quite under his control. It lurches. There is a hint of madness in it. Every now and then the fantasy breaks down and reality asserts itself. It can’t be acknowledged, of course, so it presents itself in disguise.

So in para 2 we get:

“They [the Brexit-sceptics] think that the Brexit bill will simply get lost in a House of Commons crevasse or buried in some interminable Jarndyce and Jarndyce legal proceedings. They think that we will simply despair of finding our way out of the EU and sit down on the floor and cry – like some toddler lost in the maze at Hampton Court.”

The image of the Cabinet sitting on the floor of the House in tears is wonderfully funny but also, I’d have thought, too close for comfort. For they are lost, and it is a maze, and often there doesn’t seem to be a grown up in sight. As for Jarndyce v Jarndyce (Bleak House), he would have been wiser to avoid it. It was a case in Chancery concerning the inheritance of a vast estate, went on for generations, was “so complicated that no man alive knows what it means,” and by the time it was settled the entire estate had been swallowed up in legal fees.

Moving to para 4, we find:

“Those 17.4 million people – they weren’t fools, you know. They weren’t stupid. They weren’t as bad as some would have you believe.”

What? Yes, he is saying it. Or the second person inside his head is.

The 17.4 million leads him to talk about the “mandate,” and this leaves a dangerous thread hanging. What exactly was that “mandate” for? It’s at this point that the first big lie is told. “Before the referendum, we all agreed on what leaving the EU logically must entail…”

No, Boris, we did not, and that is exactly what the fuss is about.

[It entailed] …“leaving the customs union and the single market, leaving the penumbra of the European Court of Justice; taking back control of our borders, cash, laws.”

There is so much that’s untrue here that one doesn’t know where to begin. So one reads on, with a mental shrug. And comes to:

“This country still has chronic problems, and at least some of them have been exacerbated by the rigidities of EU membership.” This statement is followed by: “Our infrastructure is too expensive”; “successive governments have failed to build enough homes”; “our vocational training is… not inspirational”; “we do not conduct enough basic research in science”.

These failings, he concludes, are the cause of our low productivity. But none of them is the fault of the EU.

The pervasive dishonesty of the article is laced with exultation at what Britain has done to impede Europe and with slurs on the loyalty of youthful Britons who paint stars on their faces. Sometimes he seems to have lost his bearings completely, as when he describes the UK diaspora as “a pulse in the eternal mind.” But in the middle of all it is the lie for which he became famous: the £350 million.

It never was £350 million, it is not even £250 million if you subtract from it the subsidies the EU pays for agriculture and other sectors in the UK economy, but still Boris pulls it back brazenly into the ring as the sum which “we will take back control of.” And “it would be a fine thing… if a lot of that money went on the NHS.”

This time it wasn’t just Farage who backed away. Most of the media shouted “Liar!” and the head of the UK Statistics Authority rebuked Boris for misuse of official statistics. Boris was unapologetic and there was a high-level spat.

So, again, what did he want? Murmurs before May’s speech became articulate later: he’d wanted to derail the version of Brexit that was in the speech, and he succeeded. She wanted the Norway option, keeping the UK in the single market; in the speech she rejected it. She wanted a transition period of up to five years: in the speech she asked for two. Downing Street denies all of this – naturally. The weakness of the Prime Minister cannot be admitted.

But on Sunday 24th the Telegraph reported that Boris was in open revolt over the compromise. He wants the UK not to accept rulings from the EU during the transition period, and to be able to sign trade deals. That means leaving the customs union.

There is war in the Cabinet.

The party conference starts in a week’s time.

You are specifically considered a person liable to removal

 

When the Lords began to debate the European Union (Notification of Withdrawal) Bill, which the Government feared it might try to sabotage, Theresa May exercised her right to sit on the steps of the throne and observe. Her expression said, “Don’t you dare.”

They did dare, but it availed them nothing. The miserable scrap of legislation to which our future was consigned got through unamended in the only place that mattered. The photograph of the Prime Minister perched on the regal step went round the globe and told the story of what Britain under her government was becoming: tense, watchful, repressive, interested solely in the outcome, never the proceedings.

A few weeks ago Dr Eva Joanna Holmberg, a Finnish historian married to a UK citizen and working on secondment from the University of Helsinki, received a letter from the Home Office. It said, “You are specifically considered a person liable to administrative removal under regulation 23(6)(a) as you have failed to evidence that you are exercising Treaty rights in the United Kingdom.”

Dr Holmberg telephoned the Home Office, was referred from one phone line to another, and in the end hired a lawyer.

The Home Office had sent out 100 such letters to EU citizens, telling them they must pack their bags and leave within a month. It subsequently admitted its mistake and is said to have reimbursed the letters’ recipients for the legal expenses many of them incurred. It wasn’t the first time this kind of thing had happened. Stories of similar letters being sent to EU citizens who were unwise enough to apply for the right to remain in the UK had been surfacing ever since the Brexit vote.

To say it was a “mistake” is not an explanation. How could such a mistake have been made in an organisation that understood the law as it currently relates to EU citizens? They have a right to be here until March 2019. Everyone in the building must know that.

Clearly the letters had already been drawn up, and one presumes they were sent out when someone pressed the wrong key on a computer. But doesn’t anyone check what goes out? And for what contingency were they drawn up? The language is not just bureaucratic and inhuman: it is chilling. The “specifically” is truly frightening. This is no way to address the citizens of a friendly country who have been working here and paying their taxes. This is the way you might address a population you wish, if possible, to remove from the face of the earth.

There is much about the Home Office that is baffling. Why, for instance, when it has long had the power to send EU migrants home after three months in the UK if they do not have a job, has it never done so? I heard a Government spokesman repeatedly dodge that question from a BBC interviewer last week. I was unaware the Home Office had that power. So, I would bet, were most people. Is it conceivable, I wondered, that the Home Office was unaware it had that power? Is it possible it knew it had it but was unable to exercise it? (Why?) Is it – a darker thought, I have them sometimes – possible that it knew it had it, could have exercised it, but chose not to? Again, why? – but the answer in this case is surely not innocent.

Again, how can it possibly have believed the number of overseas students who overstayed their visas to be in the region of 100,000 when it turns out to be roughly 1% of that? 100,000 was indeed the estimate of the National Office of Statistics, and how that office came up with such rubbish is another good question, unless it got it from the Home Office in the first place, which, given that the N.O.S. is a Government entity, is entirely possible. If it didn’t, and since the number of overseas students is part of the Home Office’s core business, you would have expected it to find the figure rather high and check it, wouldn’t you?

But no, you would expect it to know. Why did it have to accept a figure from the National Office of Statistics? Why didn’t it have its own records?

And here we come to a curious and important point, which probably also explains the failure to send unemployed migrants home after three months. The Home Office doesn’t keep records of immigrants entering the country. It relies on guesswork and something called airport surveys, presumably supplemented by the Tarot.

The courts, which do know how to count, say that approximately 48,000 overseas students have wrongly been sent home without completing their courses – “in some cases sacrificing a lifetime of earnings and borrowings from a poor family” (Vince Cable, quoted in The Independent, 27 July).

And since the Home Office has proved so hysterical about numbers of overstaying students, so inept at policing unemployed immigrants and so clueless about who is allowed to be here and who is not, would you expect it to be a reliable witness about the effect of immigration on wages and employment? No, and you would be right. When Vince Cable was Business Secretary, he saw no less than nine academic studies which showed that the effect of immigration on wages and employment was negligible (The Independent, 6 Sept.)

The studies were suppressed by Theresa May, Home Secretary at the time. “The results were inconvenient,” said Mr Cable.

What is it with Theresa May and the Home Office? Other ministers are given a department, serve for a few years at the head of it, and then move on. Theresa May has not moved on: she has taken the Home Office with her. Her refusal, as Prime Minister, to budge on the inclusion of overseas students in the immigration total, her silence on the true numbers who overstay their visas, her continued suppression of the reports Vince Cable saw, are only a few indications of how completely she has identified with the Home Office’s goals and culture.

She is extremely reluctant to distance herself from her former Department, however incompetent its behaviour and however thuggish its methods. When she moved to Downing Street she took her two Home Office policy advisers, Fiona Hill and Nick Timothy, with her, and only the debacle of the general election campaign forced her to part with them.

It is as if she found something in the Home Office that complemented her personality. In its repressiveness she found reassurance, in its narrowness comfort, in the rigidity of its categories of inclusion/exclusion a certainty that steadied her. For she needs steadying: she vacillates, which is why she has to be inflexible.

Yet all of this does not explain the obsession with immigration, which, after all, is only one of the Home Office’s concerns. It does not explain why nine academic studies had to be suppressed because they were inconvenient.

On 16 March the London Review of Books published an illuminating piece by David Runciman, “Do your Homework.” It is partly an essay and partly a review of a biography of Theresa May.1 It said some remarkable things:

[May] “takes a position and then she sticks to it… Many of the positions she adopts are ones she has inherited, seeing no option but to make good on other people’s promises.

“…She came into a department that was pre-committed by the Conservative manifesto to bringing immigration down to the ‘tens of thousands’… Her colleagues, including Cameron, didn’t seem to have thought about whether this was a realistic target and assumed that if it wasn’t it would have to be fudged. May had no intention of fudging it, to the increasing consternation of the people who had landed her with the task. It is far from clear she believed it was a good policy. That wasn’t the issue. It was now her policy and she would see it through.

“…Unnervingly, it’s difficult to avoid the conclusion that her embrace of a hard Brexit, prioritising control of immigration over membership of the single market, is her way of finally completing the task.”

Those paragraphs explain a great deal, but not all. You may, if you believe immigration is at a dangerous level, sacrifice everything to bringing the numbers down; but if evidence emerges that the danger and the damage have been greatly exaggerated… then why go on pretending that the situation is worse than you know it to be?

The Home Office is paranoid: that is apparent. That is why it is so ready to believe nonsense. It’s not hard to see how in a large organisation there would be opposing currents, sections working in ignorance of what other sections were doing, and so on. It’s not impossible to see how, collectively, a sort of willed paranoia could develop.

But Theresa May is an individual. An individual, surely, is not capable of willed paranoia, which is a conscious desire to believe oneself to be persecuted while knowing one is not.

Why did she suppress those studies?

To whom were they “inconvenient”?

We ought to know the answer. She was running the Home Office when she put them in a locked drawer. Now she’s running the country.

 

1 Theresa May: the Enigmatic Prime Minister, by Rosa Prince. Biteback, Feb. 2017

 

The height of pavements

 

In the spring Theresa May called a general election she didn’t have to call, because she thought it would consolidate her power. She needs to be in control of things. She miscalculated, and lost her overall majority. She shored it up again with a hefty bung to a Northern Ireland party mainly known, on this side of the water, for its bigotry. She doesn’t really care, as long as she hangs on.

Now the selection of MPs to sit on a little-known House of Commons committee is due. It has nine members. Before it was dissolved prior to the general election, five of these were Conservative, three Labour and one SNP. The numbers at the time reflected a Conservative majority. The Conservatives no longer have a majority. They are clinging to power thanks to their grubby deal with the DUP. Obviously the composition of the new Committee must take account of this. Mustn’t it?

But Theresa May needs to be in control.

The obscure committee whose membership comes up for consideration this month is the Committee of Selection. It does what its name implies. It nominates the MPs who will sit on the House of Commons select and standing committees. Commons committees review Government legislation and they are powerful. One of them, I notice, is the Committee on Statutory Instruments. It is in its remit to “draw to the special attention of the House” any Statutory Instrument as to which “there appears to be doubt about whether there is power to make it,” or that “its drafting appears to be defective.”

A statutory instrument is secondary or delegated legislation (an Act of Parliament is primary legislation), and it offers Government a quick means of getting business through the House: there is less debate, less scrutiny. Statutory instruments are not very democratic but, as the former Lord Chief Justice, Lord Judge, remarks in an outspoken lecture, Ceding Power to the Executive (2016),1 it is not in the interests of democracy to get clogged up with matters like the height of pavements, either.

But now we have Brexit, a very tight time-frame and an obsessionally-controlling Prime Minister. And a Bill has come before the House for its second reading which, short of a declaration of war, could not be more important.  It is the European Union (Withdrawal) Bill, otherwise known as the Repeal Bill, of which the first clause is, “The European Communities Act 1972 is repealed on exit day.”

This repeal will drop the UK into a legal abyss, because it renders null all EU legislation which is incorporated into British law, and there is very great deal of it. The remainder of the Bill is therefore devoted to closing up the abyss. The first step is to transfer or copy all the relevant EU law into UK law. Roughly half the Bill is taken up with detailing how this is to be done (it is complicated; there are many categories of EU legislation and they have been incorporated into, or given effect in, British law in different ways).

The problem then arises that much of the transferred law will not work, because it is linked to an EU institution with which the UK no longer has a relationship. Means have to be found, therefore, of amending the “deficient” law so that it continues to be workable. This will be done through statutory instruments. They will allow ministers to alter the legislation to make it fit for purpose, without trying to push an enormous number of new Bills through Parliament.

There are two types of procedure for doing this: in the Affirmative procedure, both Houses must approve the statutory instrument; in the Negative procedure, it becomes law without a debate or vote, but it may be annulled by a Resolution of either House (however, this has not happened since 1979). Parliament cannot amend an S.I.

The Repeal Bill sets out which categories of legislation will be subject to the Affirmative procedure and which to the Negative. This sounds obscure but it matters very much: over the “Negative” regulations, which are not debated or voted on, Parliament will have almost no control. They are known as “Henry VIII powers.” It appears that most of the legislation will be of this kind. The Bill thus hands discretion and control to Government ministers over a vast quantity of law-making.

It is estimated that about 1,000 S.I.s will need to be created.  A major revolt, which may include some Tory MPs, is brewing over the Bill, which comes to the vote on Monday night (September 11).  There is a shocking discrepancy between, on the one hand, the task the Government has set itself and the means that would be appropriate to performing that task (full debate in  both Houses), and the means the Government is actually proposing to use. Statutory instruments are very well suited to determining the height of pavements: they are not suited to determining workers’ or consumers’ rights, or overturning or curtailing major legislation formerly passed under full legal safeguards by the EU and incorporated by Act of Parliament into British law.

The Government is relying on the fact that the “Henry VIII powers” are unchallenged. The name has been much bandied about; it makes picturesque a dry and difficult subject, and it is, in its peculiar way, convincing. We all know what kind of monarch Henry VIII was, and when we read that a Henry VIII clause is one which enables the Government to repeal or amend an Act of Parliament through secondary legislation, with little or no Parliamentary scrutiny, we are not a bit surprised. An Act that Proclamations made by the King shall be obeyed was the no-nonsense title of Thomas Cromwell’s Bill put before the Commons in 1539.

Well, that’s that, then, one might conclude. We should have got rid of the things by now, of course, but we don’t always remember to throw out the rubbish. It’s part of being British.

We did throw it out, actually. The Act was repealed immediately after Henry’s death in 1547. In any case, an admirably robust Commons amended it to such an extent that by the time it came before the Lords it merely gave statutory force to matters which already fell within the royal prerogative. “What we call Henry VIII clauses were no such thing,” says Lord Judge in his 2016 lecture. “They were no more than a wish list. The King’s proclamation could not change existing laws, in particular could not alter any Act of Parliament.” (My italics.)

So why are we stuck with them? Lord Judge does not answer this, and perhaps the answer lies in the national psyche. They survived in the woodwork, but for centuries were used with extreme caution. Then suddenly, in the 20th century, something changed. “What was once a small stream of delegated legislation in 1929,” says Lord Judge, “has become an inundation. Since 1950… some 170,000 statutory instruments … have been laid before Parliament. In that time 17 have been rejected by one or other House… It is one in ten thousand, 0.01%… It is difficult to avoid the conclusion that the Parliamentary processes are virtually habituated to approve them.”

S.I.s have become a flood because they are so extremely convenient to Government. This is not just a power-grab, although it is that as well. It’s that there isn’t enough time. Many S.I.s come before House committees rather than the Chamber, but the committees don’t have enough time, either. “If [the Commons] worked twenty-four hours a day for every day of the year there would still not be enough time” (Lord Judge).

Thus, Brexit has landed us with yet another intolerable trade-off. This one is between time and democracy. “There is no alternative to a Repeal Bill if the Government plans to deliver Brexit”, says Joelle Brogan in a blog for the LSE website.2 “However, the expediency of the Henry VIII powers … to remedy and prevent ‘deficiencies’ in the law …does not and never should be to the sacrifice of individual rights and the rule of law.”

Individual rights go to the heart of it, for many objectors to the Bill. Corbyn focuses on workers’ rights such as paid leave, health and safety protections and parental leave. More than 70 NGOs, trades unions and charities, including Amnesty, Liberty and the Friends of the Earth, have joined a formal alliance to scrutinise the Bill. The environment is felt to be particularly at risk (Defra estimates that 80% of its activities are affected by EU law).

Many MPs are angry, too, that the Bill explicitly denies any role to the EU Charter of Fundamental Rights, a removal which “substantively weakens the protection of rights in the UK,” says Joelle Grogan. And there are the devolved administrations, to which the Bill devotes much attention (basically, it tells them there is nothing they can do about it). Many powers which will be “repatriated” from Brussels by the Bill are devolved powers, but the Bill will not return them to the devolved administrations, it will return them to Westminster.

The battle in the Commons is under way. David Davis has reassured critics that important legislation will be debated. He points out the sunset clause of two years on the Henry VIII powers. He demands that MPs “respect the will of the people.”

Meanwhile Amber Rudd, Leader of the House, has tabled a motion that would ensure the Government has a majority on all standing committees. It proposes to change the rules so that “where a committee has an odd number of members, the Government shall have a majority.” This would effectively get around the Committee of Selection and make sure the Government’s legislation on Brexit could not be challenged by any of the Parliamentary committees.

It is reported in the Independent (September 9) that this plan was hatched immediately after May’s failure to get a majority at the general election, and that the DUP’s support for it was secretly agreed as part of the DUP deal with the Government.

The motion comes up for a vote on Tuesday evening.

 

1www.kcl.ac.uk/…/Ceding-Power-to-the-Executive-the-resurrection-of-Henry-VIII

2 blogs.lse.ac.uk/…/07/…/legislation-that-is-and-is-not-the-deeply-problematic-repeal-bill

 

 

A modest proposal

 

 

 

Goodness knows what it took, but it’s done. The Labour Party has made up its mind.

Up to a point. It still hasn’t said what kind of Brexit it wants. Presumably that is still being argued about. What it proposes is that any deal should only come into force after an interim period of up to four years. All parties now accept the need for such a period, although four years is too long for the Tories. But the important part of the Labour proposal is that during this transition things will carry on just as they are now. The UK will stay in the single market. It will stay in the customs union.

Common sense has triumphed. Two cheers for Keir Starmer, who got the policy through shadow cabinet. One cheer for Corbyn, for letting it through.

Does this sound grudging? Common sense appears to be a wonderful achievement only in the most dismal of contexts, but Labour’s performance for the past 18 months in relation to Brexit has been worse than dismal, it has been a betrayal of the electorate. If the party has now started to rise to the challenge, this is the bare minimum that is required. The great merit of it is that the first step it has taken is in the right direction. It might, Heaven help us, have been the wrong one.

Interestingly, it finds itself in step with Guy Verhofstadt, who said this week that he foresaw a transition period that would be “a prolongation of the existing situation, of the status quo.” However, the Brexit co-ordinator of the European Parliament wasn’t commenting on the Labour announcement, he was commenting on the snail’s pace at which the British negotiating position is advancing.

A transition period is a buffer, and if what is threatened comes to pass we shall be profoundly grateful for it. It grants more time before the axe falls – on businesses, EU citizens, the European Arrest Warrant and everything else that’s under the blade. It grants more time for the country to come to its senses.  However, its granting is not guaranteed. Twenty-seven member states have to say “yes” to an interim period for the UK while it sorts out its marbles. A few weeks ago this looked a near-certainty, but if Government ministers going on using words like “blackmail,” perhaps it will not be so certain. The third round of talks has not gone well.

Moreover, it’s not so simple. We can’t just say, “We would like another two years (or three, or four) please, while we transition out of the EU”, without getting the instant reply, “Transition to what?” Yes, we can probably postpone going through the departure gate, but we can’t postpone choosing our destination. Until we choose our destination, we can’t negotiate the postponement. The transition period doesn’t solve any of our most pressing problems, which are to do with the difficulty – for the Government, the impossibility – of making decisions; it just promises an easier path to implementing those decisions, once taken.

Hence the suggestions, from Starmer and others, that the Labour Party might seek to remain in the single market and customs union after the transition period is over. The suggestion is sensible, would make it much easier to negotiate a transition, and if the UK adopted it there would be far worse places we could be. The trouble with it is that, on the one hand, it would drive hard-Brexiters into a frenzy and might lead to the horrifying spectre of a Tory party led by the undead Jacob Rees-Mogg, while on the other it wouldn’t cut anybody’s mustard: it would leave us subject to the ECJ or a close imitation of it, liable to pay into the EU budget and, crucially, lacking a seat at the discussions which decide EU policy.

All these things have been true from the start, because Brexit is essentially a trade-off. The Labour Party’s announcement accepts this reality, and very welcome it is, because the Tories have always refused to grasp that Brexit is anything but a cake. Thus a small, well-defined patch of clarity has appeared in an area of dense fog. Naturally it is being fought tooth and nail by the forces of fog. “Brexit betrayal!” screamed the Express on Monday, when one would have hoped the cognitively-impaired were with everyone else at the beach.

Among Remainer MPs it spells hope, of course. At last an alternative to the Government’s suicide bid has declared itself. There is a side to be on. There is a lobby to go through. This translates into leverage. There is a spring in Anna Soubry’s step.

And it’s just in time, because the show in Brussels is not a cheering spectacle.  David Davis has raised his sights but not his game; he doesn’t really have one, which is what Michel Barnier has been subtly telling him. Davis’s department has produced a clutch of policy papers covering issues that include the Irish border, the customs union, nuclear safety, data security and the ECJ. Davis is very proud of them, but he seems proudest of their number. He has got it right, for once: their number is the most impressive thing about them.

All the Brexit papers the Government has issued so far are curiously alike. They offer pockets of earnest detail inside shrouds of pious aspiration. They set forth irreconcilable aims and, instead of explaining how these can be mutually accommodated, simply ignore the contradiction. They are strong on insistence, weighty with unnecessary background and totally lacking in argument. This is what EU officials mean when they say the British documents are vague and have no substance. But they have to be like that: the Government is still trying to construct a fantasy land that will pacify its right wing while not alienating business, finance and industry, which tend to see through fantasies. And now it has to flatter Europe as well, at least on paper. It cannot resolve the conundrum it has set itself, but it has to say something. The result is many pages of empty verbiage and the compulsive repetition of formulaic phrases such as “deep and special”, “seamless and frictionless,” like prayers which might save the soul. These inane doublings run through the documents like a vein of fool’s gold.

David Davis is out of his depth. It is the most fundamental of all this Government’s problems that it cannot recruit a first-class intellect to deal with a set of issues that require a first-class intellect: it cannot because its cause is shabby and shallow and no mind of the necessary calibre would have anything to do with it. The EU, by contrast, can take its pick from the sharpest brains of a continent renowned for producing them. Someone should have thought of this before.

So there is the hapless but defiant (“Who Dares Wins”) Mr Davis, dimly aware that the depths are beyond him, the detail escapes him, and he controls nothing… what will a military man do? Evade. Distract. Force the enemy to fight on as broad a front as possible.  He demands not only that the discussion at once include trade talks, but that it move on swiftly to include everything else as well. For good measure, he demands flexibility. This does not mean flexibility in its usual sense; it is another way of asking the EU to drop its requirement that the past be settled before the future is discussed. He has been given his answer many times.

M. Barnier could have observed that if Mr Davis is not able to talk about the three things he is asked to talk about – citizens’ rights, the Irish border, the bill – there is no likelihood he will be capable of talking about anything else, but he did not. He simply said UK positions on the separation issues were necessary in order for “sufficient progress” to be made and that “we need UK papers that are clear.”

Indeed. We do. Jean-Claude Juncker also finds the UK documents unclear. He has read all of them carefully, and he finds every one unsatisfactory. It must strike him as particularly unsatisfactory is that the most urgent one, the paper on the EU bill, is not there. Mr Davis has not produced it.

This is being called negotiation.

It is becoming clearer that the Government’s true Brexit strategy is bluff. Davis is the man for that, he has the personality and the front, but the question remains, what is the point?  Since every other end but economic disaster is better served by the negotiations it refuses seriously to engage in, it looks likely that its aim is merely to survive to the next election – and, with luck, beyond. Its first hurdle, in that case, is not the 3rd, 4th or 5th round of talks, but the Conservative Party Conference.

In the light of that, the Labour Party’s modest proposal appears a triumph of statesmanship.

 

 

 

A hundred donkeys, a hundred pounds of flour

 

Estimates vary, but the British Army puts the length of the Irish border at 303 miles.

That’s roughly four times the length between its end-points measured in a straight line. The border is wiggly. At one point it doubles back on itself in a noose that draws part of the Republic into a narrow-necked peninsula. It follows lanes and abandons them for fields; it tracks the line of a shed and then plunges into a bog. For many miles it traverses water. It is invisible: you need a good map and good boots if you want to follow it.

There are more than 200 official-marked crossing points. Garrett Carr walked and canoed the length of it last year (The Rule of the Land, Faber 2017), and marked on his map the unofficial crossing–points he found: a stile, a home-made wooden bridge, a plank across a stream. He found 77.

On the ground, all the crossings are unmarked. Only the speed limits change, from kilometres to miles or vice versa. The signs, the checkpoints, the customs posts, they were all dismantled following the Good Friday Peace Agreement. Nobody wants them back. The border meant men in masks; random terror; death.

That was during the Troubles. In its early years, the border offered a living to smugglers and harmless amusement to everyone else. Goods were cheaper in the north but tax had to be paid if they were taken south. “In those days,” says Carr, “smuggling was mainly about butter, tea leaves and the occasional cow.” He tells of a more ambitious project involving a hundred donkeys each carrying a hundred pounds of flour (eight shillings a sack cheaper in the north), and a great many Irishmen  armed with sticks. Naturally they were ambushed by Customs. The battle went on all night and there was a terrible mess in the morning.

A favoured item for smuggling was shoes. This explains a sentence that baffled me in H V Morton’s In Search of Ireland (1930), in which Morton meets a group of bus passengers who have left their shoes under a hedge in Donegal.

After the Troubles started, smuggling changed. “Sacks of flour are transformed into crates of guns,” Carr writes, “or wraps of Semtex, or a young man with his wrists tied together.”

Nowadays it’s diesel, cheaper in the south because, even within the single market, countries can set their own fuel tax. However, it’s farm diesel, which has the highest differential, and farm diesel is dyed, and in Northern Ireland and the Republic it is dyed different colours. So the dye has to be removed, and this is done with bleach and cat litter, which results in the appearance of five–foot plastic cubes full of blackened cat litter leaking awfulness in remote laybys.

Does David Davis have any idea what he is getting into?

The British Government has just published its position paper on the Irish border. It is 30 pages long and presents, like all its Brexit papers, apparent clarity covering deep confusion. On the necessity of keeping the border invisible, because any visible change would imperil the Peace Agreement, the Government is adamant. Nor can it ditch the Common Travel Area, which has been in force since 1925, allows free movement  between Ireland and Britain for citizens of those countries, with reciprocal rights of residence, and is also a foundation stone of the peace:

“The UK can provide a clear assurance that the Common Travel Area can continue to operate in the current form… without compromising in any way Ireland’s ability to honour its obligations as an EU member state…”

So the UK’s post-Brexit immigration system “will not impact on the ability to enter the UK from the CTA free from routine border controls.” But what about non-Irish EU citizens who have made their way to Ireland?

This is crucial and the reply is astonishing: “Controlling access to the labour market and social security have long formed an integral part of the UK’s immigration system… This range of control mechanisms means that the UK is confident it will be able to: maintain existing movement to the UK from within the CTA without requiring border controls; respect Ireland’s ongoing free movement obligations; and put in place a new UK immigration system and controls for EU citizens” (page 11).

The Government apparently thinks it can prevent unwanted migration simply by checks on employers and social security.

As it moves from immigration to customs the paper has a bad attack of nerves:

“Establishing clear principles now will help shape potential technical solutions, and, as the Irish Government has said, recognises [sic] that this issue requires a political and not just a technical solution…” (etc.)

It pulls itself together enough to enumerate nine essential points to be addressed. Number seven is how best to respect the integrity of customs unions on both sides of the border. The solution, says the paper, “will need to go beyond any previous precedent.”

That applies, it turns out, to every problem leaving the EU customs union presents.

Reference is made to the Government’s Future customs arrangement paper, recently published, which Michel Barnier said would not be considered until the “divorce” was settled. Some of the “facilitations” set out in that paper would be essential to the “highly streamlined customs arrangement” being proposed, says the border document. In other words, “You’ve got to read that bloody paper on customs whether you want to or not.”

We will see whether cheekiness works.  The “highly streamlined arrangement” is one of two alternative options put forward and would be partly based on new technology. There would be continued waivers of entry/exit declarations for goods moved between the EU and UK, and exemption from customs checks for smaller traders. These comprise up to 80% of the businesses that trade across the border. There would also be identification of “trusted traders” on either side of the border who not do not qualify for cross-border exemption. Declaration requirements would be reduced for them. Why they would be trusted is not explained.

That’s Option 1. Option 2 is a completely new arrangement in which everything stays the same. Goods moving between the UK and EU would be treated as they now are for customs purposes. “There would be need for a robust enforcement mechanism that ensured goods that had not complied with EU trade policy stayed in the UK.” (Chlorinated chickens piling up at Holyhead? See below.)

“This could involve, for instance, a tracking mechanism, where imports to the UK were tracked until they reached an end user, or a repayment mechanism, where imports to the UK paid whichever was the higher of the UK’s or EU’s tariff rates and traders claimed a refund for the difference between the two rates when the goods were sold to an end user in the country charging lower tariffs.

“…Traders…would need to be able to track goods or pass the ability to claim a repayment along their supply chain in order to benefit from tariff differences between the UK and EU for rest of the world goods… This partnership would need to cover all goods…” (page 17. My italics.)

Chlorinated chickens pop up under “Sanitary and phytosanitary measures for agri-food,” (SPS). This unappetising heading will also presumably cover GM crops. At present, the whole island of Ireland is treated as one for epidemiological purposes. That will change. “While the UK will have greater flexibility in relationship to designing our own approach to SPS checks” [i.e., we are going to let this rubbish in], “the Irish side of the land border will continue to be subject to EU regulations” [i.e., it’s the EU’s fault].

“One option… could be regulatory equivalence on agri-food measures, where the UK and EU agree to achieve the same outcome and high standards… This approach would include “dispute resolution mechanisms” [the ECJ?], and “could ensure there would be no requirement for any SPS or related checks…”

“It is also important to note,” chirrups the document, “that the UK is in a unique position; the Repeal Bill means that the UK is starting from a point of full regulatory alignment on day one after leaving the EU.”

Then what the hell is the point of leaving?

This question, which must never be asked, sits at the centre of the Government’s paper on the Irish border like the black hole at the centre of the galaxy, silently drawing all things unto it. The paper circles around it, moving from one micro-solution to another, churning out “seamless and frictionless” “and “new, deep and special” (page 15) as inevitable by-products.

What the Government desperately needs is what it already has. The customs union. But it has to leave the customs union in order to make the fabulous global trade deals it is always talking about.

It has to make the trade deals because it is leaving the single market and the world’s largest trading bloc. It needs the single market for a long list of reasons (security and nuclear safety are two), but it has to leave the single market because that allows freedom of movement from the EU and it believes Leave voters voted on the basis of controlling immigration. (Even if they didn’t it doesn’t matter, because Theresa May is fixated on immigration and because if she didn’t leave both the single market and the customs union the Daily Mail would tear her throat out.)

So it has to leave the customs union but it can’t. It would lose too much. The incessant reiteration of “seamless and frictionless” says so. But it has been told it won’t get seamless and frictionless outside the single market and the customs union, and it must know it won’t if it has half a brain, because from the EU’s point of view there’s no earthly reason why it should and a very powerful reason why it shouldn’t. And it has until October to resolve this dilemma and October is five weeks away.

In desperation, it is trying everything, including asking for more time at both ends of the process, and weaving thickets of tracking mechanisms, exemptions and abilities to pass on refunds that will make it look as if it’s implementing EU requirements when it isn’t, or that it isn’t when it is, in order to delay the moment when it has to say whether it’s in or out.

None of these inventions will work anyway, because technology fails and people cheat. And if the Government thinks it can prevent smuggling across an Irish border, it does not – I say this with great affection for the Irish people – know much about the Irish. It should read Garrett Carr’s book.

When Alexander the Great was shown a knot that could not be untied, he cut it with his sword.