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.

 

 

 

 

On second thoughts

 

With Blair, it’s Iraq. With David Cameron it’s that, for the paltriest of reasons, he called a referendum that had huge implications for the country and failed to win it. With David Miliband, it’s … what, exactly? He didn’t do anything. Something was done to him, most people say. Yet he is, all the same, cloaked in an event he can’t shake off. It is clearer than he is.

I am the only person I know who thought that Ed Miliband had a perfect right to stand against his brother for the Labour leadership. I did not see why family should be more important than policy. However, sibling rivalry has always attracted interest: the Bible is replete with examples we are not supposed to follow. Cain killed Abel. Joseph’s brothers sold him into slavery, having first put him down a well. Jacob took advantage of Esau’s hunger to buy his birthright for a bowl of lentils, and then tricked him out of his father’s blessing, which meant his inheritance.

Ed was condemned, in suitably Biblical terms (“Judas”), and probably no more would have been heard of it had he lost the contest for the leadership, but he won. Five years later he lost the general election and was condemned again, but by that time his brother David had left Parliament and was in the USA heading the International Rescue Committee. There he has remained ever since, occasionally expressing an opinion on Labour politics but keeping a low profile.

His absence hasn’t done him any good here: it may be discretion, it may have been the only thing he could do, but it feels like hiding. Or sulking. He’s like a Prodigal Son who hasn’t been prodigal.

From time to time people say, in a slightly puzzled way, “Pity about David Miliband,” rather as if he had been run over by a tram while trying to stop a dogfight. The implication is that it’s a silly waste, we could do with him. He has experience, certainly: he was Tony Blair’s Policy Chief, then Secretary for the Environment, later Foreign Secretary under Gordon Brown. Well, he’s gone.

Or has he? A hard-hitting article appeared under his name in the Observer at the weekend. It says harsh things about May’s Brexit, urges a cross-party “fightback”, and demands a second vote between EU membership and whatever alternative is negotiated.

There has not, so far, been much fuss about it, so presumably it’s thought that nobody’s listening. It is August, after all. (Why did he choose August?) And he has been away for a long time. So perhaps he doesn’t count. Normally, it is not permitted to ask for a second vote on Europe. The Government’s position is that the people have spoken and they must never be allowed to speak again. To say otherwise is to invite demonisation as an anti-democrat.

It’s a very good article: clear, uncompromising and broadly-based. There are excellent reasons why the referendum result should not be accepted as the last word on the subject. I wrote about them on 8 March, www.foxoutinfront.com/the-will-of-the-people (see also foxoutinfront.com/say-you-like-it ), and won’t repeat them here. Of these many reasons, David Miliband focuses on only one, the most important one. It is, in his words, the campaign’s “complete… refusal to describe, never mind debate, what would replace the status quo.”

Miliband is deeply invested in the American political scene (he expected to be offered a high-ranking diplomatic post in the Administration if Clinton had become President*), and turns to America to illustrate his point about Europe. “Support for Obamacare is growing, dramatically, because the alternative has finally been spelled out… The case against the EU depends on avoiding a discussion of the alternative. It is the equivalent of voting to repeal Obamacare without knowing the replacement. It is a stitch-up.” (My italics.)

He is surely right, and the illustration of Obamacare is helpful. But the sentence I have italicised makes clear just what an enormous swindle the referendum was. The fault in the first instance was David Cameron’s, for setting the ballot question; the void left by the question was never filled by the Remain campaign; the Leave campaign saw their chance – a campaign entirely negative, targeted on the EU – and gleefully took it. The losers were the British people.

Miliband considers Brexit “an unparalleled act of economic self-harm,” but believes that it was a big mistake to reduce the referendum to the economic question.

“The EU represents a vision of society and politics, not just economics… The real truth about the single market has been lost in translation. It is not just a market. It is a vision of the good society. Rights (and holidays) for employees, limits on oligopolies, standards for the environment are there to serve the vision. The single market stands against a market society.”  (My italics.)

This aspect of the EU is well understood and appreciated in Europe. Britain has relegated it to the dustbin. We should be ashamed of this, and worried about what has influenced it. It has impoverished the debate to the point where it is not reality that is being debated; and it makes us look what we are in danger of becoming, a small, narrow-minded nation.

“The EU is not just a group of neighbouring countries,” Miliband reminds us. “It is a coalition of democratic states which pledge to advance human rights, the rule of law and democratic rules. That is not a threat to Britain; it is the team we should be in.”

And, going back to the Atlantic Charter, agreed between Churchill and Roosevelt in 1941, he says, “The insight was simple. Globalisation without rules and institutions would not mean more control for ordinary citizens. It would mean less.”

Put that on the buses.

Finally, he quotes Eisenhower’s brilliant insight, never more apt than now, “If a problem cannot be solved, enlarge it.”

How this article has been received in the Labour Party I do not know, but I imagine they will deal with it by ignoring it. Jeremy Corbyn, believing himself within striking distance of Downing Street, will not even want to think about a second vote. Nor, should David Miliband fancy his chances of returning to British politics, will he find the party readily making room for him. The left doesn’t want another Blairite on the scene, particularly a clever one with experience of high office. And why should the Blairites welcome a returning hero who will think he has a right to lead and who moreover isn’t that much of a hero, not after an absence of …

In fact it’s only four years. It seems longer. It seems longer because it’s seven years since he lost the leadership battle to his brother. He remained an MP until 2013.

Seven years is a long time. But it is also a fairytale period. It’s transformative. In seven years one can experience a radical change of mind. David Miliband has gone a long way away from us: if he had taken a post under Clinton he would have had to take American citizenship. He must have been willing to do that, ready to turn his back on Britain. It would be understandable. Rejection by his brother, rejection by his party; in the end he would have seen it as rejection by his country. Rejection is a hard thing to handle, and the easiest way to handle it is to reject the rejecter. And he has his pride. After all, he was the older brother and the senior politician. Probably quite a lot of pride.

Is he ready to change his mind?

Also, if we are to apply the highest standards, is it quite good enough? The article he has written is wise, mature and shows a breadth of political thinking. Are the same qualities apparent in his behaviour? Or does he have the same, almost impermeable, membrane between the good bits and the bad bits that most of us have? It matters. It matters if he’s coming back.

He has given no clear signal either that he is or that he isn’t. It seems that he cares deeply about what is happening in Britain but not deeply enough to get involved in it. Perhaps it really is too hard to get over, all that Biblical stuff. And it’s possible that saving refugees is the best thing he could be doing. Yet I have a feeling he doesn’t think so.

Situations like this are resolved in the heart, not the head, or not resolved at all. This one needs resolution.

There is need, in the Britain of 2017, for a political intelligence like David Miliband’s. There is need for strong leadership. Blair has the qualifications, but he can’t do it. Iraq is always ahead of him.

Here is a glimpse of how deeply deception, confusion and contempt for the public have penetrated our politics. This is David Davis, talking on Tuesday’s Today programme about the opaque document on the customs union which his Department had just published.

“You will find it difficult sometimes to read what we intend,” he said, apparently unaware that the population has been unable to read what the Government intends for more than a year. “That’s deliberate.”

Oh, I see.

David Miliband, come home. Forget everything else. The house is on fire.

 

* The Telegraph, 29 April 2016.

 

Give us back our dirty beaches!

 

The BBC hates unoccupied airtime. On radio, we only get “dead air” just before the bongs that precede the main news. Then, of course, it isn’t really unoccupied airtime at all: it is vibrating with the anxiety of the nation, waiting to be told that Big Ben is still there, war over North Korea has not broken out, we do not yet have to eat chlorinated chicken.

So the two minutes of “slow radio” introduced into Sunday morning’s Broadcasting House is a small revolution. It is not silence, but it isn’t really “radio” either. It is a two-minute clip of something unremarkable, that turns out, as you listen to it, to be something beautiful. Once it was a train clicking over points. Once it was a waterwheel turning. Once it was a dog sleeping. The listener is drawn into it. It becomes deeply restful. It is probably doing more for the nation’s mental health than the rest of the BBC’s output taken together.

Last Sunday (July 30), it was a cascade of birdsong from a forest in Poland. The Białowieża Forest is one of the few remaining primeval forests on the planet, and home to numerous species including bear, lynx, bison, and rare birds such as the black stork, pygmy owl and three-toed woodpecker. Logging, which started more than a year ago with encouragement from the Polish Environment Ministry, had just been stopped. It was stopped on the orders of the European Union.

The EU is much concerned with the environment, although, founded on the desire to make war between Germany and France impossible by uniting their coal and steel industries, it came late to the natural world. In the 1950s and 60s, the level of environmental awareness was not high. This was a time when organo-phosphates were used with abandon and nitrogen was heaped on to soil to “boost fertility”, sewage was pumped into the sea, smog blanketed London at regular intervals and only a wild eccentric would ask for organic vegetables.

In the 1970s the EEC began to take piecemeal measures to combat pollution. They paved the way for Article 25 of the Single European Act of 1987, of which the first aim was “to preserve, protect and improve the quality of the environment.”

That is still the first aim of Article 191 of the Lisbon Treaty.  The three aims that follow are: “(2) Protecting human health; (3) prudent and rational utilisation of natural resources; and (4) promoting measures at international level to deal with regional or worldwide environmental problems, and in particular combating climate change.” (Emphasis in original.)

The EU directives on the environment cast a wide net: habitat, birds, flooding, groundwater, landfill, urban waste water, noise, recycling of electrical equipment, environmental impact of infrastructure projects, quality of bathing water, renewable energy, air quality, carbon capture, nitrate pollution, and more. They establish the “polluter pays” principle. They are incorporated into British law in various ways and with varying degrees of flexibility. They are extraordinarily thorough.

The Bathing Waters Directive (Dir.2006/7/EC) gets it right at the start: “Water is a scarce natural resource, the quality of which should be protected, defended, managed and treated as such. Surface waters in particular are renewable resources with a limited capacity to recover from adverse impacts of human activities.”

Exactly. When did we last hear such clarity from a regional water authority in Britain?

Also: “The public should receive appropriate and timely information on the results of the monitoring of bathing water quality and risk management measures… New technology that allows the public to be informed… should be applied.”

Excellent.

Then, a warning: “Since the objectives of this Directive … cannot be sufficiently achieved by the Member States and can be better achieved at Community level, the Community may adopt measures in accordance with the principle of subsidiarity… This Directive does not go beyond what is necessary in order to achieve those objectives.”

Aha! This is the point at which Brexiters raise the alarm. Here is interference with our liberties. Freeborn Englishmen are entitled to their dirty beaches.

There then follow many clauses on monitoring, assessment, what constitutes a “bathing season”, how many samples shall be assessed and how frequently, how bathing water shall be classified (very simply: poor, sufficient, good and excellent), what measures shall be taken if it is classed as poor, how the public should be alerted and kept informed, how the results of the monitoring are to be reported to the Commission, at what depth samples are to be taken for microbiological analysis and how the sample bottles are to be sterilised. And much more.

There are people who want Brexit so that they can roll back the EU’s regulations. From glancing at this one Directive, one can see why. One can also see why they shouldn’t get their way.

The cornerstone of the EU’s nature conservation policy are, jointly, the Habitats Directive (92/43/EEC) and the Wild Birds Directive (2009/147/EC). The Habitats Directive is built around the Natura 2000 network of protected sites, which encompasses more than 18% of the EU’s land area and almost 6% of its marine territory. More than 1000 species, many of them threatened, are protected, and over 200 types of habitat. The Wild Birds Directive protects all wild birds species naturally occurring in the EU, with special concern for the habitats of endangered and migratory species.

In the UK these Directives place 283 species including otters, nightingales and pine martens under protection, and safeguard 653 natural havens including the oaks of Windsor Great Park and the woods of the Wye Valley.

The effect on the UK of the EU’s environmental legislation has been “overwhelmingly positive,” say the Friends of the Earth in a paper titled The Implications for UK Environmental Policy of a Vote to Leave the EU.

“In the 1970s and 80s the UK earned the unattractive reputation for being “the Dirty Man of Europe; we had the highest sulphur dioxide emissions in the EU and our seas were akin to open sewers. Policy was dictated by so-called ‘sound science’, with action taken only when incontrovertible damage had been proved… Policy makers would react to problems only as they emerged, in a fragmented and ad hoc way. Perhaps the most damaging was the voluntaristic approach to regulation adopted, with close relations between policy-makers and those they sought to regulate.”

Membership of the EU, says FoE, has resulted in the introduction of new regulatory agencies like the National  Rivers Authority and the adoption of strict emission limits. “We have been obliged to change approaches to sewage treatment and releases of nitrates, and the quality of beaches and bathing water has improved.”

Indeed. Tourists are back on the beaches, and no longer gesturing at the sea in disgust; there are salmon and otter in the rivers. Species continue to go extinct at a horrifying rate, partly as a result of destructive farming practices, but the EU works with farmers to educate them in land use that favours greater biodiversity, and gives grants of up to £150 per hectare to encourage the return of conifer plantations to broadleaf. There are success stories: Bitterns and the Large Blue butterfly are back from the edge of extinction in the UK; there are 1600 breeding pairs of Red Kite.

The bad news is air quality. Yes, sulphur dioxide emissions have fallen, but “the UK Government is facing heavy fines over its failure to meet its obligations.”

This document was published in 2013. More on air quality below.

Anyone who read with a sinking heart the paragraph above that starts “In the 1970s and 80s…” can be forgiven, because it’s clear where we’re headed. Brexiters are nostalgic for a vanished past: this is that past. Just how much we will regress depends on what kind of Brexit we blunder into: the much-touted “Norway option” would oblige us to observe a number of EU environmental regulations, but NOT those on habitat, wild birds or bathing water. Back to dirty beaches, the shooting of birds of prey and the felling of ancient oaks? If the talks fail, as the head-bangers would like them to, we will only have to maintain those environmental standards that are forced on us by the terms of a trade deal.

The UK is perfectly capable of looking after its environment without interference from the EU, Brexiters will say. But it has shown little sign of wanting to do so. It opposed the classification of tar sands as “highly polluting,” tried to undermine energy efficiency targets, and wanted to block a pesticide ban intended to protect bees. The British Government has been taken to court twice over air quality; now, threatened with fines of £300m. by an out-of-patience European Commission, it has rushed out an announcement – which would be laughable if it were not tragic – that new diesel vehicles will be prohibited in the UK in twenty-three years’ time.

Twenty-three years? There are 23,500 premature deaths per year in Britain from nitrogen dioxide pollution caused by diesel traffic, many of them deaths of children.

Well, they shouldn’t be so selfish. All they have to do is hang on until 2040 and they will be perfectly all right.

The far-right Polish government, which bears more than a passing resemblance to our own, maintains a two-finger stance towards the EU although it is highly unlikely that it would seek, like Britain, to leave (it gets too much in subsidies).  Latest reports are that it has returned to logging in Białowieża Forest.

 

 

 

 

 

 

 

… and what about the tokamak?

 

photo by Barbara Peluzo

 

You can be sure the knives are out when the former chief of staff for the Minister for Brexit briefs against the Prime Minister.

James Chapman said David Davis had been “hamstrung” in the Brexit negotiations by Theresa May’s intransigence and that unless she showed more flexibility she would find it difficult to get Brexit through Parliament (BBC news, 30 June).

What had hamstrung Mr Davis, he said, was the Prime Minister’s hostility to the European Court of Justice. This court has featured several times in the fox blogs and will continue to do so unless Mrs May undergoes a Damascene conversion. It oversees transactions between European member states. It will therefore have a role to play as Britain withdraws from the EU. If we want to hang on to bits of the EU because the bottom will fall out of Britain if we don’t, it will go on having a role to play. This is simply a fact.

Mr Davis has tried to deal with his dilemma by trailing the idea of a new international court, consisting of British and European judges, to replace the ECJ. It will be subject to the same objections as the ECJ, however; it will not be a sovereign British court. It will be a fudge and an obvious one, it will be costly to set up and there seems no reason why the EU should accept it. But it will save the Prime Minister’s face. This is what Brexit has done to British politics.

It appears, meanwhile, that Mrs May will let Britain fall apart at the seams rather than concede ground on her “red line.”

A seam that particularly concerns Mr Chapman is Euratom. It should concern us all.

Euratom’s full name is the European Atomic Energy Community, and it was signed into existence on the same day in 1957 as the European Economic Community, from which it was legally separate. The reason for the separation was so that any potential opposition to atomic energy in the Community’s populations should not turn into opposition towards the Community itself. It is still separate, but nearly all its members are EU states.

Euratom’s purpose, explains Clare Moody, MEP (Guardian, 1 Feb.), was “to create a single market for … knowledge and resources in the peaceful pursuit of nuclear energy.” The European’s Commission’s webpage, (https://ec.europa.eu>EuropeanCommission>Horizon2020) says its aims are “to pursue nuclear research and training activities with an emphasis on continually improving nuclear safety, security and radiation protection, and notably to contribute to the long-term decarbonisation  of the energy system in a safe, efficient and secure way.”

What is wrong with that? Even if you think nuclear power is an invention of the Devil, a viewpoint with which I sympathise, we are stuck with its lethal waste products, and the more protection we have against them the better. One would think.

Theresa May doesn’t think so. The treaty with Euratom will lapse when the other treaties lapse, on our exit from the EU, and she will make no attempt to keep Britain in.

Why not? The clue is in Clare Moody’s phrase, “a single market for nuclear knowledge and resources.” Single market? Absolutely not. It will let immigrants into the country. They happen to be, as James Chapman points out, scientists earning six-figure salaries who pay a lot of tax, but that makes no difference. Not only will they be boosting the immigration  total, but the ECJ will  be involved in seeing that we treat them properly. That’s the clincher.

Safety is not the only thing that Euratom concerns itself with, although it accounts for the first two of its main priorities. Notably, it inspects all civilian nuclear facilities. It regulates the transport and exchange of nuclear materials. It is, Clare Moody states, the legal owner of all nuclear material, and is the legal purchaser, certifier and guarantor of any nuclear materials and technologies the UK purchases.

“This means,” she says, “that 21% of the UK’s electricity generation is based on our membership of Euratom.”

Does that mean that leaving Euratom will threaten our electricity supplies (which are not robust in any case)? The Commons cross-party Business, Energy and Industrial Strategy Committee thinks so. Its chairman, Iain Wright, said the continued operations of the UK’s nuclear industry were “at risk.” The Committee recommended delaying departure from Euratom until alternative arrangements were in place, to minimise “disruptions to trade and threats to power supplies” (Guardian 2 May).

Government ministers assured the Committee that guaranteeing the UK’s supplies of nuclear fuel was a “high priority”, but gave no indication of how they propose to guarantee them.

The Committee was also concerned that Brexit might result in the removal of key standards, that the UK could become a dumping ground for energy-inefficient products, and that it might end up in the position of a “rule-taker” – unable to influence rules and standards it has to comply with. So much for sovereignty.

Euratom supports and regulates the medical applications of radiation, including the secure supply of radio-isotopes (priority no. 4 in the European Commission’s list). The Government has not announced what, when we leave the regulatory framework, it intends to do about this, either.

And then there’s JET (Joint European Torus). JET lives at Culham in the Oxfordshire countryside and, without disturbing the cows, generates temperatures exceeding those in the centre of the sun. It is a tokamak (the word is Russian and refers to its shape), looks like a cross between a ring doughnut and the spaceship Discovery One and is an experimental fusion reactor. It is a project of Euratom.

JET and the more advanced ITER, in France, for which it carries out testing, have been in development for a long time and not yet achieved nuclear fusion that yields usable amounts of energy. However, if this goal can be attained it should produce abundant electricity without radioactive waste. That is a prize worth going for. Nuclear fusion, which fuses together light atoms, in contrast to fission, which splits heavy ones, might be the energy of the future; it is already part of the science of the future. JET receives generous EU funding, too: 56 million euros per year. Do we really want to bail out of it, with all its opportunities for training new scientists, its challenges, and the benefits that will come from contribution? Theresa May does, if being under the jurisdiction of the European Court of Justice is the price for staying in.

There are other costs associated with leaving Euratom. One is a matter of hard cash: we will have to pay for all those nuclear materials and bits of hardware that are located in the UK and which at present we do not own, before they are transferred to us. The bill will be included in the “divorce settlement” which has to be negotiated. (Someone will have to explain to the Daily Mail why we have to pay for this stuff and aren’t being given it.) We will have to create new regulatory structures and a mechanism for reporting to the UN through the International Atomic Energy Agency, which at the moment the EU performs for us. We will have to create nuclear transport arrangements.

There will be the cost of setting up the new international court to replace the ECJ, if it happens, although that will presumably be shared between the multitude of other competences over which the ECJ has jurisdiction. (Or will it?  Will there be one court for Euratom and another for fisheries, a third for dealing with the European Search Warrant and a fourth for citizens’ rights..? Nothing is beyond the insanity of Brexit.)

And this is without calculating the EU funding we will lose for research and development, and the economic effects of losing what has been described as a trillion-pound market.

“It’s madness,” said Vince Cable. “It’s bonkers,” said the former director at Culham, Dr Steven Cowley. No matter. Theresa May holds to her course.

Behind everything lurks a darker question which no-one wants to ask. Do we trust our government with matters of safety, of regulation, of transparency to public scrutiny? I would be surprised if, after the events of the past month, one person in a hundred could be found who said “Yes.”

Inept, arrogant, intent on cost-cutting, ideologically opposed to regulation, pathologically secretive, this government has been revealed as incapable of discharging its responsibility to its citizens and incapable also of acknowledging its defects. We are expected to trust it to take on the oversight and regulation of an industry which requires the highest possible safety standards and which, privatised as far as it can be by past administrations, has often failed to meet those standards and whose failings have been routinely covered up. And this while it is attending to the thousand and one other things mandated by its pointless Brexit.

Are there any takers?

 

The specified date

 

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

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

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

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

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

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

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

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

That’s all right, then.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Of course we are.

Then why the hell are we doing it?

 

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