Category Archives: parliament

Escaping the  European Union (Withdrawal) (No. 2) Act 2019.

Robert  Henderson  

The EU may  have  overreached themselves.  On  9th October the president of  the European parliament David Sassoli  suggested  that a n extension  under Article 50 should only be granted if  either a General Election  or  a second referendum  is  held during the extension period, viz:

 Mr Sassoli told the European Parliament: “I had a fruitful discussion with Speaker Bercow in which I set out my view that any request for an extension should allow the British people to give its views in a referendum or an election.”

‘France’s Europe Minister Amélie de Montchalin backed the plan and said: “If there are new elections or a new referendum, if there is a political shift leading us to believe we could have a different dialogue from the one we have today, then an extension can be discussed.”  ‘

If the EU  stick by the conditions  Sassoli wants to  see attached to an extension it raises the question of  what  exactly the European Union (Withdrawal) (No. 2) Act 2019 can  force upon a Prime Minister .

The Act requires Mr Johnson to send  to the EU  this letter if there is no agreement between the UK and the EU:

“Dear Mr President,

The UK Parliament has passed the European Union (Withdrawal) (No. 2) Act 2019. Its provisions now require Her Majesty’s Government to seek an extension of the period provided under Article 50(3) of the Treaty on European Union, including as applied by Article 106a of the Euratom Treaty, currently due to expire at 11.00pm GMT on 31 October 2019, until 11.00pm GMT on 31 January 2020.

I am writing therefore to inform the European Council that the United Kingdom is seeking a further extension to the period provided under Article 50(3) of the Treaty on European Union, including as applied by Article 106a of the Euratom Treaty. The United Kingdom proposes that this period should end at 11.00pm GMT on 31 January 2020. If the parties are able to ratify before this date, the Government proposes that the period should be terminated early.

Yours sincerely,

Prime Minister of the United Kingdom of Great Britain and Northern Ireland”

Thus Mr  Johnson is certainly obligated to seek a simple  extension without conditions.  But there is nothing in the Act which obligates him to accept an offer of an extension with conditions for the question of conditions is not mentioned in the Act.

The   failure to mention conditions either generally or specifically  might well be sufficient to negate the need for Johnson to accept the offer of an extension which had conditions attached  such as those the EU had stipulated.    However, there  are  also the tests of irrationality and unreasonableness   in English law.

 Lord Greene MR said this in the Wednesbury case: “If a  decision on a competent matter  is so unreasonable that no reasonable authority could ever have come to it, then the courts can interfere, and this kind of case would require something overwhelming. “

Lord Diplock in a case involving GCHQ :  said  this: “By ‘irrationality’ I mean what can by now be succinctly referred to as ‘Wednesbury unreasonableness’. This applies to a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question  to be decided could have arrived at”

The idea that Johnson (or any Prime Minister) have to accept whatever conditions the EU place on an extension is clearly unreasonable because the EU could ask for anything no matter how absurd,  for example, the EU  might  demand £100  billion as a condition for agreeing to  an extension or   stipulated that the extension period be for   years?   Both irrationality and unreasonableness would surely  apply in such  instances.

If the EU back  the   stipulation that an extension will  only be granted if there was a general election or a second  referendum  is objectively damaging to our democracy because it  is a gross interference with UK politics and is specifically designed to further the EU’s interests and not those of the UK .

 To obey the Act    Mr  Johnson is required to do no more than seek an extension.

Stand fast must be the order of the day for Leavers

Robert Henderson

“The creatures outside looked from pig to man, and from man to pig, and from pig to man again; but already it was impossible to say which was which” .(The last sentence of  Orwell’s Animal Farm )

This is precisely where Brexit is heading.  The leave voting public look from leaver politician to  remain politician and increasingly find it difficult to distinguish between most of  them. This trait is exemplified by media reports which suggest some grubby deal is being cooked up whereby May agrees to resign as PM and the wavering leave politicians agree to vote for her agreement with the EU.

This trade off  fails to address the questions  of what May’s agreement contains, the likely behaviour of remainer politician and public servants if  May’s agreement  is accepted by Parliament  and the EU’s attitude to the UK   if May’s agreement is turned into a legally enforceable document.

May’s agreement leaves the UK in the hands of the EU.

The Spectator magazine  recently listed what they called the top 40 horrors of the agreement. Apart from the Irish Backstop, these include the following :

  1. May says her deal means the UK leaves the EU next March. The Withdrawal Agreement makes a mockery of this. “All references to Member States and competent authorities of Member States…shall be read as including the United Kingdom.” (Art 6)
  2. The European Court of Justice is decreed to be our highest court (Art. 86) both citizens and resident companies can use it.
  3. The UK will remain under the jurisdiction of the ECJ until eight years after the end of the transition period. (Article 158).
  4. The UK will still be bound by any future changes to EU law in which it will have no say, not to mention having to comply with current law. (Article 6(2))
  5. Any disputes under the Agreement will be decided by EU law only – perhaps the most dangerous provision of all. (Article 168) Arbitration will be governed by the existing procedural rules of the EU law – this is not arbitration as we would commonly understand it (i.e. between two independent parties). (Article 174)

These clauses of the agreement alone should make the agreement unacceptable to British politicians for they are the type of subordination required of a defeated enemy who has sued for peace.

The likely behaviour of remain politicians

The circumstances of a remainer  PM, a remainer dominated Cabinet and a remainer  dominated Parliament alone make it wildly improbable that  the  British Government  (of whatever complexion) after Theresa May’s agreement was  converted into a treaty will be any more robust in its dealing with the EU than May has been.  This is not merely a matter of weakness or inexperience by those calling the political shots in the  UK  Rather, it is the consequence of a remaner political elite which is determined to sabotage Brexit.

Nor  can we look to an early election to change matters. The House of Commons is probably 75% remainer. Hence, even if a General Election is held it is likely that a remainer  dominated Commons would be returned simply because it would require an almighty  and most unlikely throwing out of remainer  MPs.

The attitude of the EU

The  EU has given ample evidence since the Referendum that they  have no intention of treating the UK reasonably. Thieir behaviour has run the gamut of personal abuse to a rigid refusal to make any meaningful compromise with the UK or simply to accept the reality that the UK have voted to leave. The idea that they will behave more reasonably if the agreement made with May is enshrined into  a legally enforceable treaty is best described as ludicrous.

A taste  what the UK is likely to be confronted with if Parliament passes  May’s agreement  is demonstrated by the struggle which Switzerland is having with the EU.  They are meeting the same bone-headedly arrogant and unyielding EU attitude that the EU has presented to the UK since the Referendum, viz:

“All the terminology in this tiff will be uncomfortably familiar to the U.K. “Nothing is decided until everything is decided,” Commission officials say, and the Swiss can’t “cherry-pick” the benefits of the EU.. “

WTO terms is the only way to Brexit

All of these considerations make leaving to trade on  the WTO deal absolutely  necessary. Irreconcilable remainers have shown ever since the  Referendum that they were not willing to accept the result and are  demonstrating their resolution  in that intention  to prevent it happening as I write – a Sunday Express article   of 23 March  claims that the Government is already plotting to bind us fully back into the EU.  This is entirely plausible based on remainer behaviour since the Referendum.

Leaving under WTO terms serves two purposes : it is  the most efficient and rapid way of leaving  and is the most difficult for situation for   remainers to subvert because it immediately provides  a general trading framework.

The Irish Question

The Irish Backstop has not been made unnecessary or modified in any way.

If the  UK leaves to trade on WTO terms there will be no legal constraint , other than the WTO rules,   on  how the UK engages with the EU generally or the Republic of Ireland (RoI) specifically.  The UK government could offer the RoI a deal, namely,  to come out of the EU and retain the common travel area and frictionless trade between and with the UK or remain in the  EU and lose those advantages.

Given the RoI’s fervently  EU stance this might seem impossible at first glance but less so when the present circumstances are seriously considered.  The  RoI only joined the  EU (or EEC as it then was) because the UK joined.  They  did so for exactly the same reason s that it would make sense for the RoI to leave now, the large  amount of UK-RoI trade and the ability to  travel freely between the UK and Ireland.

To the trade argument can be added the fact that RoI  in 2016 moved  from being a net recipient of EU money to being a net contributor to the EU.  Their contribution in 2018 was more than £2 billion. With the UK leaving and removing a great wad of money from EU coffers  net contributors to future EU budgets will have to pay even more to make up for the loss of the UK’s contribution.

Of course leaving would raise the difficult  problem of the RoI  being in the Euro,  but the UK could  help the RoI to resurrect the Punt by lending financial assistance and perhaps even underwriting the Punt for a period.

If the RoI did leave the EU the Backstop problem would evaporate.

What happens if the RoI remains in the EU?  That would leave the EU not the UK with the problem of erecting a border between Northern Ireland and the RoI. The UK will not place  a physical border between the two so the only authority who could do so would be the EU.  Would they dare? I doubt it.

We desperately  need a modern law of treason

The UKL does not have a functioning Treason Law. It is sorely to be missed because without it what would have been called treason in most times in our history passes without any action being taken.

A recent  first rate example was Tony Blair advising major players within the EU how they should in effect thwart Brexit – see here and here . That amounts to treating with a foreign power without the authorisation of the Government.

A new treason law should make any attempt to assist a foreign power to the detriment of the UK treason.  That would cover much of the behaviour of irreconcilable remainers including politicians.

Such a law should not interfere with the normal democratic process. For example it would allow renainers to work for the UK to  rejoin the EU after the UK has left by making it the policy of a party and standing for election on that platform.   (That incidentally was the only democratically acceptable way for remainers to attempt to reverse Brexit, namely, let it take place and then try to reverse it in the way I have described).

The post-referendum position

The only reason Brexit is in such a mess is because  remainer politicians from Theresa May downwards have made  it  so.

The constitutional position is simple: by passing the Referendum Act Parliament contracted out the question of whether  the UK should remain in the EU or leave. Once the country voted to leave  Parliament (Lords and Commons) were obligated to put that decision into effect.

The referendum question was beautifully clear, senior politicians said publicly that the result of the vote would be  honoured by implementing it and after the vote the major parties promised in the 2017 election manifestoes  carried the same promise.  Parliament also agreed to the activation of the Article 50 procedure putting the UK on the leaving path. In short, there is absolutely no excuse for the grossly anti-democratic misbehaviour of  remainer politicians. They are not people acting in good faith to do what is best for the country. Rather they are  simply trying to enforce their will.

If Parliament passes May’s surrender document of a deal it will not only create great uncertainty,  but will also leave the UK securely attached to the EU, an attachment which will be  progressively tightened by a remainer dominated government and remainer dominated Parliament until within a few years the UK will be a de facto member of the EU . Like the animals in Animal Farm the uK  shall be indistinguishable from a full blown member of the EU.

Speaker Bercow  may have  radically changed the rules of the Brexit game

Robert Henderson

Recently there has been a sense of resignation in the leave camp, a  feeling that we  were at the mercy of  our treacherous remainer politicians who appeared to hold all the best  cards because of their domination of Parliament. Singlehandedly the Speaker has changed the mood .

John Bercow’s  ruling (18 March) that May cannot put her deal with the EU to the Commons for a third time if it is “the same or substantially the same” .  This has undermined  utterly May’s entire strategy which is the democratically contemptible one of trying to force a thoroughly bad deal through by a war of attrition allied to Project Fear.

Even before Bercow spoke the situation was unsettled however much the remainers might have portrayed it as being a  clear choice between May’s deal   being passed by the Commons or May going off to the EU to ask for an extension (preferably a long one) which would allow the remainers more time to complete their sabotage of Brexit.

Nor, despite the remainers’ shrill, incessant claims, has a “no deal” departure been taken off the table. In fact a  “no deal” Brexit is  still the default position until and when  the 29 March date in the Withdrawal Act is amended.

Consequently, there was a  launching pad for greater resistance to the game May has been playing and the problems of dealing with a Remmainer dominated Parliament.  All that was needed was something to strike a serious blow at the status quo. Bercow provided that.

Before Bercow stated his position with regard to May’s deal, the Government had no inkling of what he was going to do before he spoke.   The very nasty shock he has administered has already born fruit. May has made a request  for the EU to sanction both a short  extension and a long extension,  The EU’s chief negotiator Michel Barnier has  replied  smartly  that she cannot have both. He also made it clear than an extension should not be taken for granted and that May must come to the EU with a firm plan of action to justify any extension of Artic  50.    She will  find this very difficult to formulate.

The implications of extensions to Article 50

If May does obtain  a long extension this at the least would mean  during  the extension the UK paying  even more money than the £39 billion Danegeld May has already offered to the  ERU  with nothing in return , continuing free movement,  being subject to  any new EU laws and regulations (including quite probability a transaction tax which would hit the UK hard because so much of our economy is services based) and coming under the jurisdiction of the ECJ.

Those sort of impositions might not only strengthen the resolve of Brexiteers but be too much for many remainers,  especially those with leave majorities. Moreover, it is important to understand that though the Commons has authorised May  to seek an extension  it will need a vote in Parliament before it is adopted as law, presumably by amending the Withdrawal Act.

If an extension is beyond the EU elections in June  the UK would have to hold elections for MEPs. That could well result in a phalanx of hard core  Brexiteers intent on making as much trouble as possible.  Neither the British remainer establishment nor the EU apparatchiks, elected or appointed, would welcome that.  Both or the EU alone might conclude that letting the UK leave without a deal was preferable and refuse an extension.

That leaves revoking Article 50 entirely.  The ECJ has ruled  that the UK can unilaterally revoke Article 50 ) but I doubt whether Parliament would vote for that because individual remainer MPs in leave majority seats would be worried about losing their seats. . (Strictly speaking May could probably do it off her own bat using the Royal Prerogative, but I doubt whether even she would have the brass neck to do that. Moreover, in the new Parliament is  the executive power situation and mood I suspect that she would face and probably lose  a vote of no confidence if she did so)

On the EU side it would be rash to assume that an extension would be automatically granted. Each of the other 27 EU members have their own national axes to grind and it is possible that one or more might simply say no to along  extension.

Why May’s  Deal Does Not  Mean Leaving the EU.

Anyone who is under the illusion that May’s “deal”  is anything other than a a subordinating horror for the UK should read the  Spectator column The top 40 horrors  lurking in the small print of  Theresa May’s  Brexit deal and watch this excellent less than 4 minute summary of the content of  and the implications of  the  “deal” by the  Bruges Group.

Proroguing Parliament

The suggestion that  Parliament could be prorogued  and a new Parliamentary session started would hit the buffers of the Fixed Term Parliament Act.  This provides for five Parliamentary sessions  of 12 months. If the present session was ended  by proroguing Parliament that would mean the five year term would be shortened because the current Parliamentary Session would be reduced.  As things stand this would mean the end date of the Parliament would not be reached by the end of five Parliamentary sessions.

Short of voting for a General Election now,  to get round this problem either the  new  Parliamentary year would have to be lengthened  or the Commons would have to vote to amend the  Fixed Term Parliaments Ac to fit these distinctly peculiar circumstances.

If nothing is settled by 29th March

What is required now is as much disorder and confusion as possible amongst our political class to distract them from the  draining away of  the last ten days before the 29 March.

In the present complex and rapidly reshaping circumstances It is quite conceivable that  the UK may come to  and pass the 29th March with the withdrawal date intact. That would mean the UK has left the EU. There would be no legal way for  either our remainer politicians or the EU to re-establish UK membership simply by  passing retrospective legislation or by the making of Treaties.  The only way back would be for the UK to re-apply for membership of the EU. From scratch.

Brexiteers should not be unthinkingly optimistic, but the situation is undeniably considerably more favourable to the leave side than it was  on 17 March, not least because Bercow’s intervention has swept away much of the obfuscation and outright lying  which has tainted the Commons until now.

Of course it may be that there is a good deal  of playacting by Bercow,  the Government and the EU and come the crunch Bercow my  allow another vote on May’s deal, the Commons may vote for the deal and the EU will agree to a long  extension, but that scenario   looks a great deal less likely today that it did  48 hours ago.

Don’t listen to the ” keep Theresa May at all costs ” Brexit siren voices 

Robert Henderson 
 
There are plenty of voices saying stick with Theresa May because that is the best hope of achieving Brexit. This goes against all the evidence about her  intentions that we already have from her behaviour over the past eighteen months. 
 
 The danger with  May carrying on as PM is that  she will, either from panic (from time pressure and a terror of not getting any deal) or from a Machiavellian  desire to  surreptitiously sabotage Brexit,   lead us into a deal which is called Brexit but which in reality leaves us inside the coils of the  EU.  
 She has not stood firm on any issue. Her MO  is simple, make Brexiteer speeches for home consumption then cave in to EU demands when she goes to Brussels. To date she has committed the UK to paying £40 billion; agreed to a lengthy transition period; agreed that those within not merely the EU but the European Economic Area  who come before the end of the transition period  will have  the same rights as those who settled in the UK prior to March 2018;  conceded that UK control over UK fisheries will  not be established  until Brexit is complete (with plenty of hints that EU boats will still be able fish in British waters; given an unequivocal promise that there will be no hard border between the Republic of Ireland and Northern Ireland and left the UK for at least another three years at the mercy of the European Court of Justice with an obligation to incorporate any new EU directives until Brexit is complete. 
 

I realise the dangers of unseating May,  but if she is  going to keep on throwing away Brexit item by item the idea that we should hold tight to nurse for fear of something worse  nurse  does not hold water.  Nor is it inevitable that Labour or a coalition of Labour and other parties would engineer a vote of no confidence if she left office.  Labour is  riven with  scandal  and ideology at present and it is telling that Labour have  not been able to build a healthy lead in the polls. Corbyn may be popular amongst certain sections of the public but he is mistrusted by many voters.      

 
There is no reason to believe  May will  not continue with the behaviour she has shown ever since the Brexit vote, namely, acting  in a way to sabotage it, from the initial delay in triggering Article 50 to the most recent concessions on  new EU migrants to the UK and fishing rights.  The details of the proposed transition deal will  give another  firm steer as to where she intends the UK to be going.  Even if it is only 2 years there could be a great deal of damage done  (especially in the area of immigration) . 
 
The other thing to bear in mind is that the latest  the next general election can be held is June 2021. Assuming that this Parliament runs its full course that could mean the election is  held only just after the 2 year transition period  ends or just before it has ended if the election is held earlier. It is also quite possible that the two year transition period might be extended or not start in March 2019  .  If Labour or a coalition of Labour and other parties wins that election it would be administratively easy even  at that stage to keep the UK in the EU because we would not have effectively left. 
 
If we are signed up to remaining in the EU by another name it is no good imagining that we can at a later date get a true Brexit because it is certain that after the next General Election there still  be  a remainer dominated Commons and a remainer dominated Lords plus all the dark state remainers in public service   and the mass media.

Brexit and surviving Mrs Maybe

Robert Henderson

The shamelessly   anti-democratic remainers are queuing up to cheat the British electorate of Brexit. Those in the media and the likes of Gina Miller  shriek that a hard Brexit is dead and it is already  reported that remainer MPs from both the Tory and Labour parties are plotting to overturn  Brexit and Theresa May knows about it but does nothing.  May’s Chancellor Philip Hammond openly defies her on Brexit by saying that no deal with the EU would be a “very bad outcome”.

In Scotland the SNP leader Nicola Sturgeon beats the same drum and the leader of the Tories in Scotland Ruth Davidson talks of legally detaching the Scottish Conservatives  from  the UK  Party whilst  insisting that a hard Brexit should be watered down and stating baldly that  the  13 MPs from Scotland who are now sitting in the Commons should vote according to their consciences not to the dictates of Tory Party whip.

There is also another possible legal challenge brewing with a  claim that the Act passed to allow the letter to be sent to the EU triggering Article 50 did not such thing because it did not  address the question of the legality of the UK leaving the EU.

More immediately worrying  is the proposed supply and confidence arrangement   with the Democratic Unionists (DUP)  of Northern Ireland  and the  concessions the  DUP will insist on and the knock-on effects with Scotland and Wales which will undoubtedly want  for themselves  whatever  the DUP gets or something of similar political value.    The terms of the arrangement have yet to be agreed,  but we can be sure that the DUP will insist on not having a hard border between the  Northern Ireland and the Republic of Ireland . Anything other than a hard border would utterly undermine one of the primary objects of Brexit, namely, control of the UK’s borders.  Nor is it certain that any deal will be made.

All in all a very pretty political mess with no risk free way of escaping.  Calling another election soon  would probably   result in  a Labour win or at least a Labour led coalition government.  At best it is unlikely that it would leave  the Tories in a better position than they are in.  Moreover, the Fixed Term Parliaments Act is still in place. To call an election before the end of the five year Parliament stipulated in the Act  requires a two-thirds majority of   the  full complement of MPs  (currently 650) whether  or not a constituency has an MP at the time of voting or whether an MP abstains.   In short at least 417 MPs  must vote for an election.   There is a good chance that neither  the Parties with seats  in the Commons nor many individual MPs with smallish majorities would want another election soon: the Parties because of the cost (if an election was held this year it would mean  funding three elections in two years) and   individual MPs for  the fear of losing their seats.

There is one way the Tories might be able to cut this Gordian knot because  they are so close to a majority in the Commons the Government is in a much stronger position than might be thought  from the media and general political  response following the failure of May to gain a majority .  May  or a successor could  try governing  without a majority.

The  number of MPs  needed for a Commons majority is pedantically 326. But this is misleading because the  seven Sinn Fein MPs will not  take their seats as a matter of principle (they refuse to swear an oath of allegiance to the Crown)and the Speaker only votes in the event of a tie (when by convention he votes for the status quo). Hence, the figure in practice for a Commons majority is  322. This means the Tories are a  mere 4 MPs short of a majority.

The Tories  could probably govern as a minority government without any support most of the time, because any defeat of  government legislation would require almost every non-Tory MP  to vote against the government. That is not easy to organise day in day out, week in week out.  Moreover, it is most unlikely that MPs from Scotland, Wales and Northern Ireland would want to hold up many of the  money Bills because that would mean their countries  would not get their  part of the money .  In addition, it is likely that the DUP would support the Tories on most occasions simply because they agreed with Tory policies and for the fear of something worse, that is, a Corbyn government. .

The main danger for the Tories  would be a  vote for a motion of No Confidence.   But it would not be easy to marshal the disparate MPs who make up the opposition.  It is possible that some Tories might abstain or even vote against on individual Tory policies , but improbable  that they would vote for a motion of No Confidence.

It is conceivable that a few  Tory remainers might cross the floor of the House of Commons and join a Corbyn  government. This idea  is unlikely  but  not absurd because Brexit is one of those rare defining issues which could cause remainer  Tory MPs to defect.  More probable would  be Tory remainers being willing to vote on  Bills put forward  by a Corbyn government which relate to Brexit.

But let us assume that a motion of No Confidence was passed, what then?  Could Corbyn form a government with a majority? He might well struggle because he  would have to take all the Ulster  Unionist MPs with him. Given Corbyn’s  record of  enthusiastically consorting with Irish Republicans of dubious provenance  it is unlikely he would be able to bring them on board even on the basis of confidence and supply. But even if he could cobble together a government of all MPs other than Tory ones,  it would be hopelessly  unstable because of the vast  spread of political opinions it would have to encompass and the fact that the Labour Party is nowhere near to being able to form a government on its own.   The proposed hook-up between the Tories and the DUP has a much better chance of surviving.

It is possible that no government could be formed which could command  the confidence of the Commons. That would create an interesting constitutional problem because the Fixed Term Parliaments Act  would mean that Parliament could not be dissolved unless two thirds of the Commons voted for it. That would mean that any new election could not be painted as the responsibility of the Tory Party as many MPs other than Tory ones would have to vote for it. That would remove part of the toxicity  of an early election for the Tories.

If May (or a Tory successor) could get through another 18  months in power that might be enough for the public to turn against Corbyn and/or simply get bored with his antics and those of the likes of McDonnell. It would also allow enough to time get the negotiations  for Brexit so well entrenched that it would be difficult to overturn them even if a different government took office. The fly in the ointment is of course the likely attempts at betrayal by the present Government or any successor government  headed by a Tory other than Theresa May.

If the Tory government does survive it must operate  for the foreseeable political future on the basis that Brexit comes before everything else apart from maintaining  the functions of the state and civil order. Any legislation in policy areas other than Brexit which is contentious should be shelved until Brexit is completed.

There must also be red lines drawn. One of the primary problems with May was her refusal or inability to spell out what she would and would not accept when negotiating with the EU.  The government whether led by May or someone else must make clear the following:

That there is no hard and soft Brexit there is simply Brexit

That the UK will leave the single  market.

That the UK will leave the customs union .

That the UK will have full control over her borders for people, goods and services.

That the UK will have full control of her territorial waters including those relating to the 200 mile limit.

That after leaving the UK will not be subject to the European Court of Justice or any other judicial body  linked to the EU or the EEA.

That the UK will not pay any leaving fee.

That the UK will be paid a proportionate share of the EU’s assets.

That would both reassure the majority who voted of Brexit and make any backsliding by the government very difficult.

The remainers throw away their best chance of sabotaging Brexit.

Robert Henderson

Astonishingly, the remainers have missed their best chance to hinder the Brexit  process by  failing to seriously oppose the motion  put down by Theresa May that a General Election be held on 8 June. The motion was passed on 19 April 201`7 by 522 votes to 13.

This is an extraordinary result on the face of it. What is even more astonishing is the fact that the remainers could have defeated the motion quite easily. All  they had to do was muster 217 votes or abstentions to overthrow the motion for an early election. Indeed, they could have done it simply by getting 217 MPs to abstain. The Labour Party, with 229 MPs, could have managed the matter on their own, as could a coalition of, say,  two thirds of Labour MPs, the Scots Nat MPs and the LibDem MPs voting against or abstaining.

Let me divert for a moment to explain the status of abstentions in this context. In this vote an abstention has the same value as a vote against. This is  because it is the total number of MPs who vote for the motion that matters, not the percentage of those who actually vote for or against a motion.

Under the Fixed Term Parliaments Act  two thirds of the 650 member House of Commons have to vote for a motion proposing  an early election.   Two thirds of 650 is 434. Hence one  vote against   or one abstention can make a difference. If 433 MPs vote for the motion with, say,  only 100 voting against but with 117 abstaining,  the motion fails because it is one short of 434.

Even without any party opposing the motion a substantial number of MPs did not vote for it.  Only 13 MPs may have voted against the motion but 115 abstained.  This figure of 115  is arrived at as follows:

522  voted  for  the motion

13  voted against the motion

Therefore 115 MPs are unaccounted for after deducting  those who voted.  Six of these are:

The Speaker (who doesn’t vote unless there is a tie), Eric Kaufman (deceased, and his constituency was  awaiting  a by election), and 4 Sinn Fein MPs  (who don’t take their seats and consequently don’t vote.)

That leaves 109 other wilful or accidental abstainers.

As 115 votes were either not used or used to vote against,  it would only have required another 102 to either abstain or vote against the motion to stop the attempt to have a general election on 8 June. Had the various remainer Party leaders in the Commons put their weight behind a vote against.  the motion it is probable that the motion would have been defeated.

Alternatively, if  remain MPs of all parties had come together they might well have defeated the motion.

The fact that the remainer MPs failed to defeat the motion when it was well within their grasp to do so,  or indeed to make any public noise about doing so, suggests that they were more afraid of losing their seats than they are motivated to carry on the battle against Brexit. Ironically,  I suspect that was a false fear for many remainer MPs because they represent constituencies which voted to remain.

As far as the party leaders are concerned, voting against the motion could have been represented as reasonable both because Theresa May had said she would not call an election as it would be  destabilising and on the grounds that this Parliament is only two years old and the clear intention of the Fixed Term Parliaments Act was  to stop PMs calling elections to suit themselves and their party rather than the national interest.

If the remainer MPs had gathered enough votes and abstentions to defeat the motion it would have placed   Theresa  May in a very awkward position personally and removed  from her the possibility of using a larger majority after an early  General Election  to drive through Brexit. It  is indicative of a  lack of commitment  by remainers to their  cause when it involves any danger or sacrifice. That is very useful to know.  If they have looked  gift horse in the mouth because they did not fancy the state of its teeth once they are very likely to do it again when the pressure is on.

As historians look back at the remainers ‘ failure to keep Theresa May locked in the position she was in before the motion was passed  – stuck with a small majority and  a General Election coming in 2019 just as the Brexit negotiations and the UK’s departure are due to come to a head – they will surely shake their heads in astonishment .  No wonder for it is truly bewildering  that there was no attempt by one or more of the Westminster parties which support the remainer cause  to defeat the motion for an early General Election, thereby potentially greatly strengthening Theresa May and her government’s  position.

Theresa May decides to go to the country  – Start counting the spoons

Robert Henderson

Theresa May has announced that she wants an early General Election on 8 June. However, this is no longer a simple matter of the PM going to see the Queen and requesting that Parliament be dissolved and  an election called. Under the Fixed Term Parliaments Act  Mrs May will require a two thirds majority in the House of Commons to vote  to call an early election.

The odds are on May   getting  a two thirds majority because the leaders of the Labour and LibDem parties, Jeremy  Corbyn and Tim  Farron have both welcomed the idea of an early election . However, the position  is not quite as straightforward as it might seem. The two thirds majority in the Commons is not two thirds of those who vote,  but two thirds of the entire Commons personnel, that is,  417 of the 650 MPs. If there  is a heavy abstention – the  coward’s way out for an MP – May could  struggle to reach 417 voting in favour.

Suppose that 100 MPs abstain. That would mean May would have to gain 417  votes out of 550, a majority of those  voting of 75%. Only 134 votes against an early   general election would be needed.   If the SNP with 56 MPs voted en bloc against the attempt  to call an early General Election it would require only 77 other MPs to vote against the same way.  Are the SNP likely to vote en bloc? Well, there has been no definitive statement from the SNP leadership but their leader Nicola Sturgeon appears to be taking the proposed General Election as a fact rather than a possibility, viz  ‘[Nicola Sturgeon] said the election would “once again give people the opportunity to reject the Tories’ narrow, divisive agenda, as well as reinforcing the democratic mandate which already exists for giving the people of Scotland a choice on their future.”’

All that  seemingly makes a vote against an early election unlikely. However, that is what the party leaders are saying. There is an outside chance that a hardcore of remainer MPs might spoil the party and defeat the motion for an early election.  As the figures above show relatively few MPs would have to rebel either by voting against or simply abstaining. There are strong reasons for them to do so.  Apart from wanting to sabotage the Brexit vote for ideological reasons many remain  MPs also a  venal interest in not having an election now because they fear that they might lose their seats.

If May loses the vote

If May is unable to get a vote for an early election she will be in something of a pickle for her  authority will be diminished and she will then have to endure over three years of the dismal picture she painted in her speech announcing her intent to seek a dissolution of Parliament, viz:

“The country is coming together, but Westminster is not. In recent weeks Labour has threatened to vote against the deal we reach with the European Union.

 The Liberal Democrats have said they want to grind the business of government to a standstill.

The Scottish National Party say they will vote against the legislation that formally repeals Britain’s membership of the European Union.

And unelected members of the House of Lords have vowed to fight us every step of the way. “

What would be May’s options if she cannot get the Commons to vote itself into a General Election? She  could attempt to repeal the fixed term Parliaments Act which could be done by a simple majority , but she would have to get that through the Lords which  would probably   prove impossible. In theory she could engineer  a vote of no confidence in her own government to bring about an election,  but that would be both absurd and uncertain of success. The reality is that if May  cannot get the motion passed permitting an election on 8 June that will be the end of any immediate prospect of a General Election.

If  a  General Election is called for 8 June

If a General Election is called it is important that  Brexiteers,  especially those who are supporters of the Tory Party, do not relax.   The polls show the Tory Party hugely in front of Labour with an average of five  polls in April having  the Tories at 43% and Labour at 25%.  That looks very solid,   but importantly the proposed  election will be held before boundary changes to constituencies are made.   These  are thought to be worth at least a   a couple of dozen seats to the Tories  and cost Labour a similar number,  so the increase in the Tory majority may not as large as anticipated. .  It is also true that most  Labour seats have sizeable majorities so that gaining large numbers of seats from them  is a big ask. .

A June  General Election now would  not be a normal one. Like the Peers v the People Election of 1910  it will be predominantly  about a single issue, namely, Brexit. Indeed, it  could reasonably be portrayed as a proxy for re-running the EU Referendum.

There is a considerable psychological difference between voting in a referendum with a clear cut yes or no decision for the voter to make and a General Election,  which  is about choosing a people to make decisions on a multiplicity of subjects for several years . Many of those who voted to Leave the EU are not natural Tory voters, especially those working-class  Labour voters who did much to win the referendum. Those voters  may not be anything like as willing to vote for a Tory government as they were to vote for Brexit.

Motivation to vote will also be important.  It is arguable that the remainers will tend to be  more strongly committed  to vote than Brexiteers simply because they  were the referendum  losers and consequently  will be without any feeling of complacency. They will see this as an occasion to vent their anger and frustration. Brexiteers may be more inclined to think that the Brexit   job is, if not done, is at least on a track from which it cannot be derailed and be less inclined to vote, especially if they are the  people who are not natural  Conservatives.

Remainer voters will also be  energised by the fact that May has said repeatedly that she would not attempt to call an early  General Election. Some leave voters may also  feel  uneasy about this and be persuaded not to vote on 8 June.

Finally, there is sheer  voter fatigue. British voters have had a General Election in 2015, the EU referendum in 2016 and face local elections . Scottish voters had  the independence referendum in 2014 and Northern Ireland had devolved elections in March 2017 .  Getting voters out for elections where voters are voting for parties have been in decline since the 1950s. It is probable that the turnout of a June General Election will be significantly below the turnout for the EU referendum which saw a turnout of 72%.  If the turnout was significantly below this the remainers will use it to cast aspersions on May’s claim that she had a mandate from the British people.

All of this adds up to a need for all those who want to see Brexit completed to be both committed to the coming election and to think forward  beyond it.  If, as seems most likely, Theresa May comes back from the election with a substantial  majority that does not mean Brexiteers can relax. A large majority might allow May to push Brexit through but it will also allow her to be dishonest. It should never  be forgotten that she is a remainer and most of her cabinet and Parliamentary Party are remainers.  They would in their heart of hearts like to have something far less than Brexit. Already there have been disturbing signs of May’s r intentions to sabotage the vote to leave. For example, in the prime areas for Brexit of   immigration and the Single Market,   Home Secretary Amber Rudd  says immigration may not drop significantly  after Brexit , while  the supposedly rock solid Brexiteer David Davis suggested in December  that the UK might  pay a fee to the EU to retain access to the Single Market.

The watchword for Brexiteers must be as ever eternal vigilance. Start counting the spoons.

 

 

Petition on Number 10 website : The UK to use the Vienna Convention on the Law of Treaties to leave the EU now

Message body

The Vienna Convention on  the Law of Treaties gives  the UIK the right to leave the EU immediately

Robert Henderson

If the UK is trapped for two years within the EU ( or even longer if all parties agree to extend the negotiating period)  a great deal of damage can be inflicted upon the UK  by hostile EU member states egged on by  the British remainers who have not accepted the referendum result and will do anything to produce a  “Brexit” which is no Brexit in anything but name.  Consequently our best course of action is for the UK to leave now and trade under WTO rules, a course of  action embraced by  the  likes of Lord Lawson and  James Dyson .

Leaving the EU now and trading on WTO rules would have considerable benefits. These are:

  1. The payments the UK makes to the EU would cease immediately . The UK makes a payment each year to the EU. When the British rebate (won by  Thatcher)  is deducted,   the money left is divided into two parts. The first  is the money which is spent as the  EU  dictates.  The second is the money which  the EU simply takes and distributes to other EU members.  Exactly how much is taken away  is debatable because of complications such as the UK  Aid money the UK  gives to the EU. But even taking the lowest estimates of how much money the EU keeps for itself  this is in the region of £6-7 billion and another  £6 billion for money is  returned to fund  public and private bodies and programmes in the UK   but with EU instructions on how it is to be spent .

If   we continue with the two years after the activation of Article 50 that will mean  the UK will have paid 33 months worth of contributions  to the EU since the referendum.

  1. The UK immediately gains control of  our  borders. As things stand free movement is likely to continue until March 2019. The UK government wants to introduce a cut off date from which  the free movement and the state supplied benefits  which arise from it  will cease. Their  favoured date is the 29 March this year, the day Article 50 is triggered.  The EU insists  that free movement must remain until the UK has left the EU.  If this happen several s million could flood in before the UK leaves the EU.
  2. The UK can immediately start negotiating trade and other deals with any country outside the European Economic Area. If the UK goes through the two year period of negotiation no  such deals can be made or at least finalised.
  3. The UK can immediately start to regain control of its fisheries.
  4. The UK will immediately be free to remove or adapt any EU laws and regulations which already exist and will not be subject to any future law. If we spend two years or  more negotiating the UK cannot amend or repeal and existing EU laws and regulations and , most importantly, the UK will have to implement any new EU laws and regulations passed during the negotiating period. This would allow the rest of the EU to engage in a great deal of mischief with the intention of damaging the UK.
  5. Leaving now will remove the opportunity for the remainers with power and influence to sabotage Brexit . That is probably the greatest benefit of all because there are  cabinet ministers, shadow cabinet members, backbench MPs, peers , public servants or the wealthy who  are willing  to fund court cases who would be only too willing to overturn Brexit, either  overtly or covertly.

The Vienna Convention on the  Law of Treaties provides the legal basis for the UK walking away from the EU right now. The relevant passages are these: .

PART III. OBSERVANCE, APPLICATION AND INTERPRETATION OF TREATIES

SECTION 1. OBSERVANCE OF TREATIES

Article 26 “Pacta sunt servanda” Every treaty in force is binding upon the parties to it and must be performed by them in good faith.

SECTION 3. INTERPRETATION OF TREATIES

Article 31 General rule of interpretation 1. A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.

Article 32 Supplementary means of interpretation Recourse may be had to supplementary means of interpretation, including the preparatory work of the treaty and the circumstances of its conclusion, in order to confirm the meaning resulting from the application of article 31, or to determine the meaning when the interpretation according to article 31: (a) leaves the meaning ambiguous or obscure; or (b) leads to a result which is manifestly absurd or unreasonable.

SECTION 2. INVALIDITY OF TREATIES Article 46 Provisions of internal law regarding competence to conclude treaties

  1. A violation is manifest if it would be objectively evident to any State conducting itself in the matter in accordance with normal practice and in good faith.

  Article 60 Termination or suspension of the operation of a treaty as a consequence of its breach

  1. A material breach of a bilateral treaty by one of the parties entitles the other to invoke the breach as a ground for terminating the treaty or suspending its operation in whole or in part.
  2. A material breach of a multilateral treaty by one of the parties entitles: (a) the other parties by unanimous agreement to suspend the operation of the treaty in whole or in part or to terminate it either: 20 (i) in the relations between themselves and the defaulting State; or (ii) as between all the parties; (b) a party specially affected by the breach to invoke it as a ground for suspending the operation of the treaty in whole or in part in the relations between itself and the defaulting State;

 Article 62 Fundamental change of circumstances

  1. A fundamental change of circumstances which has occurred with regard to those existing at the time of the conclusion of a treaty, and which was not foreseen by the parties, may not be invoked as a ground for terminating or withdrawing from the treaty unless: (a) the existence of those circumstances constituted an essential basis of the consent of the parties to be bound by the treaty; and 21 (b) the effect of the change is radically to transform the extent of obligations still to be performed under the treaty

These provisions mean the UK could summarily leave by arguing (1) the EU are not acting  in good faith because of the many threats  to punish the UK for leaving the EU made by EU functionaries and politicians; (2)  that  the Treaty  leads to a result which is manifestly absurd or unreasonable or (3)  that the circumstances which now exist are radically different from what existed when the last EU treaty was signed by the UK (The Lisbon Treaty).

Statements by EU politicians and functionaries that Brexit will be deliberately punitive  for the UK to dissuade other members from leaving clearly go against the provisions of Article 50 – see examples at the bottom of this post.  Having a provision for leaving  in a treaty implies that states leaving  according to the provisions of the  treaty have a right to leave. Deliberately making leaving very  damaging for the leaving member of a treaty nullifies the right to leave. Ergo, that is  clear and emphatic  bad faith.  In this context it is important to understand  that the Vienna Convention does not require all parties to a treaty to act in bad faith to nullify a treaty – see section 2 of the Convention quoted above

But it is not only  direct threats of penal treatment of the UK which matter when it comes to bad faith.   Suppose   the EU  passed legislation during the negotiating period which  placed the UK  at a grave disadvantage  the UK would still have to implement the legislation regardless of its effects on the  UK during the period of negotiation. A good example, would be legislation   which would have severe  ill effects on the City of  London such as  a  transaction tax.

As for circumstances  being radically different take  the massive deterioration in economic performance by some Eurozone countries resulting from  the actions of the European Central Bank which are arguably directly at odds with the  rules of the ECB  for managing the Euro.  This mismanagement has created severe problems within the EU both in terms of economic instability and the increased tendency of migrants from the suffering countries to move to the richer EU countries  including the  UK.  The failure of the Eurozone to manage its affairs honestly must  count for a radical change of  circumstances.   (The vote by the  UK to leave does not  count as  a radical change of  circumstances because it is something engineered by  the UK and the Vienna Convention disqualifies such deliberate changes  as a cause to repudiate a treaty.)

Even though Article 50 has now been triggered that does not mean the UK could not leave under one or more of the Vienna Convention permitted reasons because any of those reasons and especially  that of bad faith could be invoked at any  point in the negotiation process.

Examples of EU functionaries and politicians threatening the UK with a damaging Brexit

Here  is just a minute sample of the many threats made to the UK about Brexit:

French President  Francois Hollande  “There must be a threat, there must be a risk, there must be a price, otherwise we will be in negotiations that will not end well and, inevitably, will have economic and human consequences,” the French president said.

Robert Fico, Slovakia’s prime minister, on Monday said that member states intend to make it “very difficult for the UK” and said Britain is “bluffing” when it says it can get a good Brexit deal.

The British people will be treated as “deserters” following a vote to leave the European Union, Jean-Claude Juncker has warned.

Spain will ‘take control of Gibraltar as soon as Britain leaves EU’ says Spanish Foreign Minister

Wolfgang Schäuble , the German finance minister also said the UK would be forced to pay EU budget bills for more than ten years, echoing proposals for the UK to pay an exit bill of up to £43billion.

Guy Verhofstadt has now said he expects Britain to cough up over £500bn to the European Union as it extricates itself from Brussels.

Former Belgian Prime Minister  Guy Verhofstadt claimed Britain will have to foot a €600billion bill before leaving the EU.

MPs who voted against triggering Article 50

MP                                                Party                       June 23 referendum result

Tasmina Ahmed-Sheikh                 SNP                            60.7% Remain

Heidi Alexander                              Labour                       64.6% Remain

Rushanara Ali                                  Labour                        69.1% Remain

Graham Allen                                 Labour                         63.8% Leave

Rosena Allin-Khan                          Labour                       74.7% Remain

Richard Arkless                               SNP                            54.6% Remain

Hannah Bardell                               SNP                            56.2% Remain

Luciana Berger                                Labour                       64.2% Remain

Mhairi Black                                     SNP                           65.8% Remain

Ian Blackford                                   SNP                            56.6% Remain

Kirsty Blackman                              SNP                            56.9% Remain

Philip Boswell                                  SNP                            61.3% Remain

Ben Bradshaw                                 Labour                        55.3% Remain

Tom Brake                                        Lib Dem                     56.3% Leave

Kevin Brennan                                 Labour                       55.2% Remain

Deidre Brock                                    SNP                             78.2% Remain

Alan Brown                                       SNP                            60.4% Remain

Lyn Brown                                        Labour                        52.6% Remain

Chris Bryant                                     Labour                        61.2% Leave

Karen Buck                                       Labour                        67.0% Remain

Dawn Butler                                     Labour                         57.1% Remain

Ruth Cadbury                                   Labour                         60.5% Remain

Lisa Cameron                                    SNP                              62.0% Remain

Alistair Carmichael                          Lib Dem                       59.7% Remain

Douglas Chapman                            SNP                               60.0% Remain

Joanna Cherry                                   SNP                               72.1% Remain

Ken Clarke                                         Conservative                 58.7% Remain

Nick Clegg                                          Lib Dem                          64.1% Remain

Ann Clwyd                                          Labour                             57.0% Leave

Ann Coffey                                          Labour                            51.8% Remain

Ronnie Cowan                                    SNP                                  63.8% Remain

Neil Coyle                                              Labour                           73.0% Remain

Angela Crawley                                    SNP                                 64.5% Remain

Mary Creagh                                         Labour                            62.0% Leave

Stella Creasy                                         Labour                            63.6% Remain

Martyn Day                                            SNP                                58.4% Remain

Thangam Debbonaire                          Labour                           79.3% Remain

Martin Docherty-Hughes                     SNP                               62.0% Remain

Stuart Donaldson                                  SNP                                61.4% Remain

Stephen Doughty                                  Labour                           55.1% Remain

Jim Dowd                                               Labour                           65.5% Remain

Mark Durkan                                          SDLP

Maria Eagle                                            Labour                          52.1% Remain

Louise Ellman                                          Labour                         73.1% Remain

Paul Farrelly                                            Labour                          61.7% Leave

Tim Farron                                               Lib Dem                       52.5% Remain

Margaret Ferrier                                      SNP                              62.7% Remain

Vicky Foxcroft                                          Labour                          75.3% Remain

Mike Gapes                                              Labour                           56.1% Remain

Stephen Gethins                                      SNP                                61.9% Remain

Patricia Gibson                                         SNP                                57.7% Remain

Patrick Grady                                           SNP                                 78.4% Remain

Peter Grant                                              SNP                                  53.5% Remain

Neil Gray                                                   SNP                                  59.9% Remain

Lilian Greenwood                                  SDLP

elen Hayes                                              Labour                               77.9% Remain

Drew Hendry                                           SNP                                   58.6% Remain

Sylvia Hermon                                         SDLP

Meg Hillier                                                Labour                              77.8% Remain

Stewart Hosie                                           SNP                                    61.7% Remain

Rupa Huq                                                  Labour                               71.8% Remain

George Kerevan                                       SNP                                      64.6% Remain

Calum Kerr                                               SNP                                       56.8% Remain

Peter Kyle                                                Labour                                    66.1% Remain

David Lammy                                           Labour                                  66.6% Remain

Chris Law                                                  SNP                                        58.8% Remain

Caroline Lucas                                          Green                                    74.3% Remain

Angus MacNeil                                          SNP                                       55.2% Remain

Rachael Maskell                                       Labour                                   61.5% Remain

John McNally                                            SNP                                        58.0% Remain

Kerry McCarthy                                         Labour                                   53.2% Remain

Stewart McDonald                                   SNP                                          71.8% Remain

Stuart McDonald                                      SNP                                           62.1% Remain

Alasdair McDonnell                                 SDLP

Natalie McGarry                                       Independent                           56.2% Remain

Catherine McKinnell                                Labour                                    57.1% Leave

Anne McLaughlin                                      SNP                                        59.3% Remain

Carol Monaghan                                       SNP                                         68.5% Remain

Paul Monaghan                                        SNP                                          50.6% Remain

Madeleine Moon                                     Labour                                      50.3% Remain

Roger Mullin                                             SNP                                          58.3% Remain

Ian Murray                                                Labour                                     77.8% Remain

Gavin Newlands                                       SNP                                          63.9% Remain

John Nicolson                                           SNP                                          73.3% Remain

Brendan O’Hara                                       SNP                                          60.6% Remain

Sarah Olney                                            Lib Dem                                      72.3% Remain

Kirsten Oswald                                       SNP                                             74.3% Remain

Steven Paterson                                     SNP                                             67.7% Remain

Stephen Pound                                       Labour                                       51.2% Remain

John Pugh                                               Lib Dem                                     54.5% Remain

Margaret Ritchie                                     SDLP

Angus Robertson                                     SNP                                           50.1% Remain

Alex Salmond                                            SNP                                          55.4% Remain

Liz Saville Roberts                                    Plaid Cymru                           51.6% Remain

Virendra Sharma                                     Labour                                      55.7% Remain

Tommy Sheppard                                    SNP                                           72.4% Remain

Tulip Siddiq                                              Labour                                      76.5% Remain

Andy Slaughter                                        Labour                                      69.0% Remain

Jeff Smith                                                  Labour                                      73.7% Remain

Owen Smith                                              Labour                                      54.2% Remain

Chris Stephens                                         SNP                                           59.1% Remain

Jo Stevens                                                 Labour                                     69.6% Remain

Alison Thewliss                                         SNP                                          71.2% Remain

Michelle Thomson                                    Independent                          71.2% Remain

Stephen Timms                                         Labour                                     53.1% Remain

Mike Weir                                                    SNP                                         51.9% Remain

Catherine West                                          Labour                                     81.5% Remain

Eilidh Whiteford                                         SNP                                         54% Leave

Alan Whitehead                                         Labour                                     50.7% Leave

Philippa Whitford                                      SNP                                          57.3% Remain

Hywel Williams                                         Plaid Cymru                            65.1% Remain

Mark Williams                                           Lib Dem                                   54.6% Remain

Pete Wishart                                                 SNP                                         59.8% Remain

Daniel Zeichner                                            Labour                                   73.5% Remain