Breaking the log-jam

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Insofar as the last few days and weeks have clarified anything, it is that there are two major obstacles to making progress in any direction on Brexit.

The Irish ‘backstop’ isn’t one of them.  The backstop itself isn’t something which some people who should know their place, aided and abetted by Brussels bureaucrats, are unfairly and unjustly imposing to fetter the freedom of a great global power; it’s the inevitable outcome of previous international agreements and a series of contradictory demands laid down by the UK government.  It’s a hole which is entirely of the UK’s digging.

The intransigence of Brussels isn’t one of them.  The withdrawal agreement which has emerged is, again, the inevitable outcome of a combination of previously agreed commitments and the red lines laid down by the UK Government.  And the Political Statement on what happens next is as vague as it is because there is no known way of squaring what the UK is demanding with what the EU can ever give without destroying itself in the process, but they had to put something down on paper anyway.

The fact that the House of Commons contains a majority of ‘Remainers’ isn’t the problem either.  Some of them might do so reluctantly, but if they were presented with a deal which meant that the UK left the political institutions of the EU whilst remaining in the single market and customs union, I remain convinced that a majority would probably support it.  The Brexit extremists would argue that it isn’t really Brexit at all, and it might well destroy the Conservative Party (it's an ill wind...), but the only decision taken by the referendum was to ‘Leave the EU’, and in legal and constitutional terms, such a deal would honour that result.  It wouldn’t honour all the wild, contradictory and fantastic claims made by pro-Brexit campaigners, but those claims weren’t on the ballot paper.  Such a deal might really have been “one of the easiest in human history” (© Liam Fox), and had it been presented to parliament within a few months of triggering Article 50, I suspect that it would have sailed through with the support of Remain MPs still shocked by the result.

No, none of these are the real obstacles to sensible progress.  Both the obstacles are actually people – two individuals who are, as it happens, both in the position which they occupy more by accident than design, and who are both incapable of applying flexibility and common sense to adapt to changing circumstances and revise their stances.

The first, obviously, is the Prime Minister herself.  Here is a person who is forever claiming to be ‘listening’ but without hearing a word that is said to her.  If Plan A loses by a huge margin, then Plan B is to explain to the opponents once again why they are wrong to oppose it.  And discussing alternatives must be limited to discussing alternative ways by which Plan A can be pursued.  Even many in her own party realise that this won’t work, and members of her cabinet, including the Chancellor, are actively briefing a completely different approach to that which she is pursuing.  The ‘red lines’ on which she refuses to budge are her interpretation – and her interpretation alone – of the result of the referendum.  They are not an inevitable part of any agreement except in the circumstances where she is directing the negotiations.

The second is the leader of the opposition.  Here’s another individual who is forever claiming to be listening; in his case it’s the claim that it is the members of his party who make policy, not him, and that he is pursuing that policy.  He does, though, seem to be in a tiny minority of members who believe that what he is currently saying reflects the opinion of the membership.  He, too, is suffering from open disagreement by those around him who are saying something very different to him.

Brexit has led to a log-jam in UK politics and in parliament in particular.  It seems to me that the only way to break out of that log-jam is to remove the two individuals most responsible for it.  I honestly don’t know exactly what the outcome of that would be, but I suspect that it would be a rapid and dramatic change in the dynamic.  If – or when – either happens it’s likely to be quite sudden.  And, based on their history of ruthlessness towards leaders in pursuing and retaining power, I expect the Tories to get there first.  If Labour are not to be totally wrong-footed, they will need to follow rapidly.

May may not be as safe as she looks

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I’ve posted previously on the way in which our own priors can colour our interpretation of facts and events; such interpretations can never be entirely objective.  Whilst to most of us, yesterday’s vote in the House of Commons was a resounding defeat, there are those around the Prime Minister who seem determined to interpret it in a rather different way.  

What to one person might appear to be an enormous Tory rebellion might well look to another as having successfully flushed all the rebels into the open where they can be picked off.  And it is indeed plausible that at least some of those 118 Tories who voted against the deal might be persuaded to vote for it when, as seems likely, it (or something very similar) is re-presented to parliament.  There is a slight flaw in that analysis, however; amongst the 198 Tories who voted for the deal, there will undoubtedly be some who did so out of a sense of loyalty to their government, knowing that it would be defeated anyway.  They may not feel the same obligation again and keeping all of them onside next time round is as big a challenge as winning round those who voted against the first time.

Would May really be silly enough to present essentially the same package to parliament again?  All the signs are that that is exactly what she proposes to do.  It’s clear that her offer to talk to her own backbenchers as well as opposition MPs on the next steps is largely limited to asking them what assurances they need before they will support the deal; she has already made it clear that her own red lines are not up for negotiation.  I used the word ‘asking’ – given her style and approach to date, it’s more likely to be an imperious demand that they fall into line and do as she says.

The Brexiteers continue to live in that fantasy land where the Irish know their place and the EU27 over-ride the interests of a member state in pursuit of the interests of German car makers, despite the fact that those car-makers themselves have already made it very clear that, if push comes to shove, they value the achievement which the single market represents more than they value the reduction in sales to the UK.  David Davis continues to push the line that the EU always manage to find an acceptable deal at the last minute.  He’s right of course; but he overlooks the fact that this is in relation to deals between the members where the interests of all need to be accommodated somehow, and not in relation to deals with outsiders where it is the interests of the EU member states which will always be paramount.

None of us knows what happens next, but a new election looks unlikely – and would resolve nothing anyway.  If Labour were to swing behind the idea of a second vote, the dynamic could change, but Corbyn still looks like a major obstacle to that.  Personally, I wouldn’t be at all surprised if the PM were to resign and her party move quickly to the election of a new leader who could shake off the restrictions of May’s red lines.  She may be feeling secure after having seen off the vote of no confidence by her own MPs, but no PM in history has ever seen his or her central policy rejected like this and been able to carry on.  And the Tory party’s history of leadership changes owes more to men in grey suits operating behind closed doors than to democratic votes of confidence.  Enough members of the Cabinet may yet decide that any progress now depends on her removal.

Who elects the government?

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There’s nothing at all unusual about the way in which politicians have reacted to the apparent rewriting of the rules by the Speaker; those who are happy with the outcome of the vote which he allowed are praising him, and those dismayed by it are criticising him.  There’s something less than entirely honest about supporting whichever process gives the ‘desired’ result, but it’s a natural tendency.

Some of the responses seem to be more than a little ‘over-the-top’ but are all the more revealing for that.  For me, the idea that allowing MPs to amend motions placed before them is some sort of ‘coup’, and ‘threatens the ability of the Government to govern’ exposes just how supine the elected legislature has become.  It also illustrates just how arcane the procedures of parliament have become - and the idea that some motions are ‘unamendable’ and that the government controls the timetable of the legislature both serve to limit the power of the legislature.

It’s worth bearing in mind that, in the UK (and the National Assembly in many ways apes this approach), we do not elect a government, only (part of) a legislature; the government is then drawn from that legislature by whoever the monarch appoints as Prime Minister (usually, but not necessarily, the leader of the largest party).  In effect, for most government activity, ministers then exercise their powers on behalf of the crown, not parliament; they only need parliament to approve their budget and any changes to the law – and a government can, in theory at least, govern for years without changing any laws if it so wishes.  What the Speaker has done has handed back some power from those we don’t directly elect to those we do directly elect, and he’s been able to do so because so much of the procedure of parliament depends on ‘precedent’ rather than on formal rules – the idea that decisions on process taken by one Speaker bind his or her successors for eternity.

More importantly, the row exposes to examination the curious relationship in the UK system between the Executive and the Legislature, and I, for one, don’t much like what I see.  There are several reasons why parliament has allowed itself to become the servant rather than the master of the government – it’s an arrangement which has suited governments of all parties, and because the Executive is drawn from the Legislature there are always plenty of ambitious legislators eyeing a role in government.  There are a lot of aspects of the US system which I don’t like, but in principle, the idea of electing the Government and the Legislature separately has a lot of attractions.  In many ways, the UK system has become much more ‘presidential’ over the years, but in an essentially undemocratic fashion.  Why not go the whole hog and separate the Executive branch completely from the Legislative branch?  We could call it something like ‘giving back control to parliament’.

Inaccurate comparisons

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Apparently, the Prime Minister is planning to compare Parliament blocking or changing the nature of Brexit with the referendum on devolution in Wales in her speech later today, asking people to “Imagine if an anti-devolution House of Commons had said to the people of Scotland or Wales that despite voting in favour of a devolved legislature, Parliament knew better and would overrule them. Or else force them to vote again”. 

But the scenario she presents is not one where a country’s parliament over-rules the result of a consultative referendum held in that country, but rather one where parliamentarians from one country over-rule the people of another, which is quite a different thing.  Parliamentarians from England over-ruling the expressed wish of the Scottish electorate for devolution would, as she says, be unacceptable - although she seems to have no qualms whatsoever about the idea that parliamentarians from England should over-rule Scottish wishes on Brexit.  Neither, as we saw in relation to the Brexit legislation clawing back powers from Wales and Scotland, does she see anything wrong with over-ruling the wishes of the Welsh and Scottish electorates on the details of devolution when it suits her.

One obvious flaw in her argument, of course, is that an “anti-devolution House of Commons” would never have legislated for a referendum on devolution in the first place – indeed, anti-devolution members of parliament did their utmost to prevent the question being put at all.  And we all know that the nature of “devolution” under the supremacist idea of sovereignty which underpins Westminster is that the UK Parliament has the absolute right to change the powers of the National Assembly any time it so wishes, as it has already done in relation to Brexit.

The second obvious flaw is that after the first referendum on devolution to Scotland and Wales, parliament legislated for a second when it became clear that opinion had changed; exactly what she is so strongly opposing in relation to Brexit.  Admittedly, there was a gap of 18 years rather than 3 between the 1979 vote and the one in 1997, but the principle and precedent for holding another vote if opinion appears to have changed is clear enough.  Setting an arbitrary time limit somewhere between 3 years and 18 is just that, arbitrary.  The principle to be considered can only be whether there is sufficient evidence to suggest that a decision taken today in different circumstances might lead to a different result, especially when an overwhelming majority of parliamentarians believe that implementing the original decision would be an unprecedented act of self-harm.

As a result of the utter folly of the Prime Minister herself in calling an unnecessary election in 2017, the parliament which we have today is not the parliament which legislated for the original Brexit referendum in 2016; and it is a key tenet of the UK constitution that no parliament can hind its successors.  There is nothing unconstitutional or undemocratic about a new parliament taking a different view on an issue – indeed, if there were, there would be little point in holding an election. 

A more relevant argument is that both the largest parties in the House of Commons fought the election on a manifesto committing them to implement Brexit, and that failing to do so is a breach of faith with the electorate.  That is a valid argument, and a good reason why it would be wrong for parliament to simply cancel Brexit and ignore the result of the referendum; but it surely can’t compel legislators to simply plough ahead when, in the light of additional facts, they come to see that what they promised is undeliverable in the form in which they promised it.

Duplicity isn't strong enough

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Faced with what still looks like certain defeat next week, I can understand why the Prime Minister is desperately trying to find a form of words which bridges irreconcilable propositions, but this is surely a step too far even by her own standards of twisted logic.  The agreement with the EU which she is putting before parliament includes a commitment that the so-called ‘backstop’, under which the north of Ireland remains aligned with EU rules, automatically comes into effect under certain pre-agreed conditions but is a purely temporary arrangement until such time as certain other pre-agreed conditions are met.  The problem she faces is that she, like everyone else, understands perfectly well that the second set of pre-agreed conditions can never happen unless and until the UK Government drops its red lines.

So, in order to get the House of Commons to accept the ‘only possible agreement’ (© Theresa May), the Government has accepted an amendment which means that the backstop doesn’t automatically come into effect under the agreed pre-conditions unless MPs vote for it at the time; that while it is in effect the UK (after consulting with a Legislative Assembly which is currently suspended anyway) can unilaterally reject any and every EU rule; and that the UK Parliament can unilaterally end the backstop arrangement at any time.  Even if this were enough to get the agreement through the UK Parliament (although that currently looks extremely doubtful), it would no longer be the agreement which she agreed with the EU, but a completely different beast.

One can only assume that she believes that agreeing something different domestically will strengthen her hand in going back to the EU and demanding either that the Irish know their place, or else that 26 members of the EU abandon the 27^th in favour of a deal with a troublesome departing member, something which would surely come close to destroying the cohesion of the EU since no member could ever trust the organisation to look after its interests in dealing with outsiders in the future.  And that’s without even considering the question about whether asking parliament to ratify a deal which differs from the one she’s agreed with the EU can ever really be considered to be negotiating in good faith.

If that weren’t enough, she’s trying to persuade Labour MPs and the trade unions to support a deal (which is no longer the one agreed with the EU) by making half a promise to consider retaining EU employment rights post-Brexit.  Leaving aside the question of who would ever trust anything she says given her record, any promise she makes can only be good for as long as she remains Prime Minister, under the convention that no government can bind its successors – so about six months, then, at best.  Any Labour MP foolish enough to swallow that one would deserve deselection – not for failing to follow the party whip, but for being too stupid to be in the job.

A case of theft

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It was Proudhon who argued that all property is theft, although Marx pointed out that the idea of theft itself presupposes the existence of the concept of property.  Whatever, in common everyday language, we all have an understanding that theft is the unlawful removal of one person’s property by another.  If a thief breaks into my house and makes off with my property, or if a conman turns up at my front door purporting to be someone he is not and persuades me with lies and deception to part with my property, most of us would understand that to be theft.  And any attempt using lawful means to get that property back would be regarded by most of us as entirely legitimate and reasonable.

On today’s newsstand, I noticed the banner headline in the Daily Express claiming that “They really do want to steal your Brexit”. 

It’s not the only time that I’ve seen the claim that any attempt to reverse Brexit is ‘theft’; and it isn’t only the Express which makes the claim.  I can understand why those who have spent many years campaigning for Brexit will feel dismayed and let down if their referendum victory is somehow ‘stolen’ from them; but something can only be ‘stolen’ from someone if it were that person’s legitimately obtained property in the first place.  Recovering stolen property by lawful means cannot itself be theft.  And there was more than one conman involved in the initial theft.

It doesn’t matter here that the Remain campaign may not have had entirely clean hands; there was a great deal of hyperbole and exaggeration (although, as events are turning out, perhaps rather less than I thought at the time), and a certain unwillingness to address the future direction of travel of the EU.  But none of that can excuse a campaign which those involved have subsequently admitted was based on direct and deliberate lies – some of which are still being repeated.  Returning to the question of who stole what from whom, that means that the ownership of the property in question is, at best, disputed.  And that in turn means that a means of arbitration and judgement is required.  There is no better way of meeting that requirement than an honest debate about the real facts before a further and decisive vote.

Strange outcomes

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The nomination of the Counsel General as Brexit Minister raises a number of questions, not least about the definition of a ‘minister’.  Given that Brexit is not a devolved issue; that he has no statutory responsibilities in the role; and that he will not be taking any decisions, the title ‘minister’ looks more than a little out of place.  He looks more like a monitor to me.  That’s by the by though; the criticism of the appointment seems to boil down to two issues.

The first is that it creates a potential conflict of interest, in that as Counsel General he is charged with giving impartial legal advice to ministers and can hardly give impartial legal advice to himself.  I’m not convinced on this one.  In the first place, if he really does have no decisions to make in the role, what exactly would be the purpose of any legal advice that he gave himself?  But secondly, I find the idea of an expectation that a politician appointed to a political post as a member of the Welsh Government by the First Minister would give entirely impartial legal advice to the government of which he is a member to be a strange one.  Yes, there are aspects of his role which require him to act independently of the government, and he is duty-bound to uphold the law; but that is not the same as saying that he must be politically neutral when it comes to policy issues.  There are sound political arguments both for and against him combining the two roles, and whether it is a ‘good’ thing or a ‘bad’ thing is an entirely legitimate topic for political debate between parties.

The second is that it is in direct conflict with the primary legislation establishing the role of Counsel General which specifically requires that the incumbent shall not be a minister.  Arguing that he isn’t really a ‘minister’ because he has no duties or responsibilities is an attempt to create wiggle room around the legislation (although it would have been much easier to give him some other title), but it looks more like an open-and-shut case to me.  What’s curious, though, is the politics of it.  This restriction on a dual role isn’t anything which the Assembly has discussed and voted on, it’s a result of primary legislation in Westminster.  It’s a rule imposed on the Welsh Government and the National Assembly from London, in effect.  And I find it strange that it’s a unionist party trying to find a creative way around the restriction, whilst those who are nominally independentistas are demanding total compliance with the letter of the imposed law.  Politics produces some odd outcomes on occasions.

Proving the opposite

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Yesterday’s ‘dry run’ for post-Brexit chaos at the ports turned into farce as those involved pretended that 89 lorries could adequately demonstrate the impact of 6000.  There were supposed to be 150, which isn’t much better, but only 60% turned up.  It’s tempting to assume that the other 61 were hired from a start-up haulage company which doesn’t actually have any lorries yet, but that might just be too close to the truth.

It wasn’t the complete disaster as which some have painted it, though; it’s just that the lessons learned weren’t the intended ones.  I thought that it demonstrated rather well the potential impact of contracting out transportation to companies which don’t have any lorries or ships – a significant percentage of the planned traffic will never arrive.  If only they’d planned it better, they could also have allocated specific pretend loads to each of the 150 lorries, and then modelled the impact on business and consumers of 40% failing to arrive in time, or even at all.  That would have taught us all much more about the potential impact.  I suspect, though, that the government would really rather we didn’t know the answer to that one.

Still, it showed those EU types the level of organisation and planning which the UK government is putting into no deal planning, albeit rather more accurately than intended.  Letting them know how ready we are is supposed to frighten them, but after yesterday’s performance they’re more likely to die laughing than of fright.

Symptoms and causes

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Before Christmas, it did seem quite certain that parliament would be voting on the Brexit deal next week.  However, the PM has said today that it will ‘definitely’ happen, and one of the few near-certainties in politics is that anything that she says at least three times will ‘definitely’ happen won’t.  Her spokesperson has also used similar wording today, so the probability that the vote will be pulled is steadily increasing.  With the current PM, everything is always definite right up until the moment when it isn’t.  ‘Definite’ is, for her, a time-limited concept rather like what she would wish the ‘backstop’ to be.  It is this flexible and time-limited approach to the meaning of words which also enables her to insist that nothing has changed since she said the opposite thing yesterday.  It’s another of those things about which she is ‘very clear’.

She’s concentrating her efforts on trying to wheedle the EU into agreeing a form of words on the Irish ‘backstop’ which will enable her to say that she very clearly hasn’t agreed to what she very clearly did agree in December 2017 and again last year.  But her increasingly plaintive, not to say desperate, pleas to the EU to cut her some slack seem doomed to failure; it’s hard to think of anything that the EU can say or do which will get her off the hook on which her own peculiar combination of intransigence and consistent inconsistency has placed her.  Even worse, she seems to have got it into her head that if only she can get some legally-binding form of words saying that the backstop can only ever be temporary, then her problem is solved.  But the existing form of words already makes it entirely clear (albeit not in the vague and uncertain May sense of ‘clear’) that the intention is for it to be temporary, and to be in force only until such time as it is replaced by a shiny new agreement on trade which keeps the border open.

The problem is not the form of words used to describe ‘temporary’ but that the PM has not the faintest idea about how she can negotiate an agreement with the EU which achieves that underlying aim.  And even if she could, her most fractious backbenchers would not support any deal which achieves that aim because there is no deal available which simultaneously allows complete regulatory divergence between two trading areas and an open border.  Seeking reassurances about the meaning of the word ‘temporary’ is addressing the symptom, not the problem.

Chasing the succession

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One of the problems which results from having a lame duck Prime Minister who everyone knows is going to resign at some point in the comparatively near future is that those around her are inevitably focussing more on how to put themselves in the best position to succeed her than on anything else.  In the same way that Brexit itself has come to dominate the PM’s every waking hour (and quite a few of the sleeping ones as well, I wouldn’t be surprised), and destroyed her domestic agenda (insofar as she ever had one), so the timing and nature of her departure and the succession have come to dominate the time and thoughts of the host of backstabbers loyal allies around her.

Over the past week, the threat to Sajid Javid’s chances of succeeding Theresa May posed by a handful of migrants crossing to the UK from France has clearly caused him a great deal of concern.  Far more concern, in fact, than the fate of the people involved.  Apparently, he believes that those MPs (and, if he gets into the final two, the party members) who will make the choice of leader will be suitably impressed if he is seen to be tough on migration (I’d be tempted to add the Blairite rider ‘and tough on the causes of migration’, except that I don’t believe he cares a fig about those).  In this, he is deluded; those involved are less concerned with whether he is or is not tough on anything than about whether they can spin a story that he is simply not up to speed with what is happening.  It’s not about the substance of either policy or action; it’s about finding a way of discrediting him.  The migrants are just what the military might call 'collateral damage' in the continuing internal Tory intrigues.

But mistakenly believing that the facts of the situation are of any relevance at all to that small electorate which he is targeting, he is tying himself further in knots with every utterance.  He has managed to suggest an approach which is illegal in international law, and his determination to work closely with the French to uphold the EU rule that asylum-seekers must apply for asylum in the first country which they reach appears to ignore the fact that the government of which he is a part is actively seeking to extricate itself from any obligation to follow the relevant EU rules.  He seems to be assuming that just because the UK is no longer going to be part of the relevant agreement, that’s no reason for the French not to abide by it and accept that it is somehow ‘their’ problem.

His claim that those involved are not ‘real’ asylum-seekers makes him sound more like a railway company blaming ‘the wrong type of snow’ than a government minister seeking to address the reasons why people put themselves through a perilous journey to reach these shores.  I struggle to understand why an attempt to escape poverty in some way makes people less deserving of our assistance than an attempt to escape war – particularly when both poverty and war are largely caused or facilitated by countries such as the UK in the first place – yet it’s a distinction which trickles casually from the mouths of people like Javid, who would prefer to send people back into poverty and an early death than do anything to address the problems which provoke people into migration.  Labelling the victims as the ‘wrong type of migrant’ is a shameful distraction from the real issues.