Robert Henderson
May’s speech of 17 January 2017 was a classic Theresa May performance , mixing statements somewhere between a boast and a threat to give the idea that the UK would be looking to its own interests first, second and last with suggestions which undermined the Britain First message. Contrary to the many media reports welcoming it as giving clarity it is, with the exception of the Single Market, a speech with a great deal of wriggle room not least over her acceptance of a transitional period and suggestion that the UK should remain attached to some unspecified EU projects. Here is some of the Britain First rhetoric:
“Not partial membership of the European Union, associate membership of the European Union, or anything that leaves us half-in, half-out. We do not seek to adopt a model already enjoyed by other countries. We do not seek to hold on to bits of membership as we leave.
“That means taking control of our own affairs, as those who voted in their millions to leave the European Union demanded we must.
“So we will take back control of our laws and bring an end to the jurisdiction of the European Court of Justice in Britain.
Leaving the European Union will mean that our laws will be made in Westminster, Edinburgh, Cardiff and Belfast. And those laws will be interpreted by judges not in Luxembourg but in courts across this country.
“Because we will not have truly left the European Union if we are not in control of our own laws.”
“But I must be clear. Britain wants to remain a good friend and neighbour to Europe. Yet I know there are some voices calling for a punitive deal that punishes Britain and discourages other countries from taking the same path.
“That would be an act of calamitous self-harm for the countries of Europe. And it would not be the act of a friend.
“Britain would not – indeed we could not – accept such an approach. And while I am confident that this scenario need never arise – while I am sure a positive agreement can be reached – I am equally clear that no deal for Britain is better than a bad deal for Britain.”
Balanced against the Britain First rhetoric were statements which directly or by implication undermined the idea that the UK would be truly sovereign. Around a miasma of waffle the details May gave allowed for a large amount of wriggle room. Her “I am equally clear that no deal for Britain is better than a bad deal for Britain” is meaningless because she has never properly defined what a “bad deal” would be. The only thing which could be said to be certain (in the sense that it was not covered with overt qualifications) is that the UK will not be joining the Single Market. However, even with that seemingly unequivocal statement it is important to understand that the ground which the Single Market covers including freedom of movement could be brought back in part by whatever agreement , if any, is concluded between the UK and the EU.
Remaining attached to the EU
A good example of the lack of clarity is May’s rejection membership of the Customs Union, but leaves the way open for the UK to become a semi detached member: viz:
“…I do not want Britain to be part of the Common Commercial Policy and I do not want us to be bound by the Common External Tariff. These are the elements of the Customs Union that prevent us from striking our own comprehensive trade agreements with other countries. But I do want us to have a customs agreement with the EU.
Whether that means we must reach a completely new customs agreement, become an associate member of the Customs Union in some way, or remain a signatory to some elements of it, I hold no preconceived position. I have an open mind on how we do it. It is not the means that matter, but the ends.
And those ends are clear: I want to remove as many barriers to trade as possible. And I want Britain to be free to establish our own tariff schedules at the World Trade Organisation, meaning we can reach new trade agreements not just with the European Union but with old friends and new allies from outside Europe too.”
May also wants the UK to keep open the possibility of the UK continuing to contribute money to EU programmes, viz:
“…because we will no longer be members of the Single Market, we will not be required to contribute huge sums to the EU budget. There may be some specific European programmes in which we might want to participate. If so, and this will be for us to decide, it is reasonable that we should make an appropriate contribution. But the principle is clear: the days of Britain making vast contributions to the European Union every year will end.
“…we will also welcome agreement to continue to collaborate with our European partners on major science, research, and technology initiatives.”
“With the threats to our common security becoming more serious, our response cannot be to cooperate with one another less, but to work together more. I therefore want our future relationship with the European Union to include practical arrangements on matters of law enforcement and the sharing of intelligence material with our EU allies.
Britain is an open and tolerant country. We will always want immigration, especially high-skilled immigration, we will always want immigration from Europe, and we will always welcome individual migrants as friends. But the message from the public before and during the referendum campaign was clear: Brexit must mean control of the number of people who come to Britain from Europe. And that is what we will deliver.
Then there is immigration, viz:
“Britain is an open and tolerant country. We will always want immigration, especially high-skilled immigration, we will always want immigration from Europe, and we will always welcome individual migrants as friends. But the message from the public before and during the referendum campaign was clear: Brexit must mean control of the number of people who come to Britain from Europe. And that is what we will deliver.
“Fairness demands that we deal with another issue as soon as possible too. We want to guarantee the rights of EU citizens who are already living in Britain, and the rights of British nationals in other member states, as early as we can.
“I have told other EU leaders that we could give people the certainty they want straight away, and reach such a deal now. “
There is a woolly commitment which could mean virtually anything as to how many EEA migrants could come to the UK, both skilled and unskilled. Large numbers of skilled people will give British employers no incentive to train our own people and the fact May does not rule out unskilled or low skilled workers suggests there will be large numbers of these.
As for the position of UK nationals living in the EU and EU citizens living in the UK , if an agreement is made to simply guarantee the rights of UK nationals and EU citizens in the countries which they are living, then the UK will be losers because the benefits which most countries within the EU offer are much less generous than those offered in the UK to EU citizens. Health service provision is the outstanding example of this. There is also the question of how honest each EU country will be when it comes to allowing UK nationals access to their benefits after Brexit. For some years there have been reports of the Spanish making access to their health services by UK nationals difficult and since the vote to leave the EU Spain has been trying to get the UK to pay the medical costs of UK nationals living in Spain. .
Perhaps most immediately disturbing is May’s commitment to a transmission period with different periods of transition, vz:.
“I want us to have reached an agreement about our future partnership by the time the two-year Article Fifty process has concluded. From that point onwards, we believe a phased process of implementation, in which both Britain and the EU institutions and member states prepare for the new arrangements that will exist between us will be in our mutual self-interest. This will give businesses enough time to plan and prepare for those new arrangements.
This might be about our immigration controls, customs systems or the way in which we cooperate on criminal justice matters. Or it might be about the future legal and regulatory framework for financial services. For each issue, the time we need to phase-in the new arrangements may differ. Some might be introduced very quickly, some might take longer. And the interim arrangements we rely upon are likely to be a matter of negotiation.
But the purpose is clear: we will seek to avoid a disruptive cliff-edge, and we will do everything we can to phase in the new arrangements we require as Britain and the EU move towards our new partnership.”
Any of the items mention under the heading of Remaining attached to the EU might have a specious rationality about them, but they all offer considerable opportunities to prevent a genuine Brexit simply by their multiplicity.
Devolved powers
May made this commitment:
“I look forward to working with the administrations in Scotland, Wales and Northern Ireland to deliver a Brexit that works for the whole of the United Kingdom.
Part of that will mean working very carefully to ensure that – as powers are repatriated from Brussels back to Britain – the right powers are returned to Westminster, and the right powers are passed to the devolved administrations of Scotland, Wales and Northern Ireland.
So we will work to deliver a practical solution that allows the maintenance of the Common Travel Area with the Republic, while protecting the integrity of the United Kingdom’s immigration system.
Nobody wants to return to the borders of the past, so we will make it a priority to deliver a practical solution as soon as we can.”
This could be an excuse for substantial new powers to be given to Scotland, Wales and Northern Ireland in an attempt to stifle opposition to the UK withdrawal from the EU. But every time new powers are granted to the devolved administrations this edges them nearer to independence because it prepares them for independence.
The Common Travel Area with the Republic of Ireland
Independence is a medium to long term problem. The border with the Republic of Ireland (RoI) is an immediate and very serious problem . If the Common Travel Area is retained then the UK will not have control of her borders because anyone wishing to settle in the UK can do so via the ROI.
May will doubtless come up with claims that new surveillance techniques based on computer systems to identify and track migrants working or drawing benefits, but does anyone have any real faith that the British state will have either the resources or the will to identify those working illegally (many will simply work in the black economy) and deport them?
The lack of a hard border between the RoI and Northern Ireland would also mean that EU goods could be smuggled into the UK if a tariff wall exists between the UK and the EU.
Our Europhile Parliament
But whatever agreement is finally made between the government and the EU it will not be a done deal. Why? Because May revealed that she could “confirm today that the Government will put the final deal that is agreed between the UK and the EU to a vote in both Houses of Parliament, before it comes into force.”
That unequivocal commitment has more to it than might appear at first glance. By committing to allowing both the Lords and Commons to vote on whatever is agreed she has greatly increased the opportunity for Parliament to either delay or even thwart Brexit altogether. Whether the vote is on a motion or on a Bill either can be amended, so matters could be delayed or sent back to square one not only by a vote against the motion or Bill, but also by amending the motion or Bill to overthrow the terms of the agreement between the Government and the EU .
As the Prime Minister has committed the Government to allowing the Lords and Commons a vote, it would be impossible to meaningfully accuse those in Parliament who voted against terms of the agreement between the Government and the EU of acting against the will of the people because by agreeing to allowing the Lords and Commons a vote they have accepted that Parliament has the right to refuse or amend the terms agree with the EU. Not only that it would be politically hideously difficult going on impossible to ensure the Lords voted for whatever terms were put before them by arranging to have hundreds of new peers created who could be trusted to vote for the terms. Not only that, but by agreeing to a vote by the Lords May has given the peers who want to remain in the EU a respectable excuse for going against the referendum result and, if the Commons did vote to agree the terms, of thwarting the Commons as well by delaying matters. The Government could use the Parliament Act to force a Bill through after a year or so but has no power over a defeated motion, so if a motion was rejected a Bill would have to brought forward which would mean further delay. Because of this a Bill is more likely than a motion of both Houses.
There is the further complication of legislation to give legal post-Brexit status to all the EU law which the UK is already committed to – “as we repeal the European Communities Act, we will convert the “acquis” – the body of existing EU law – into British law.”
Presumably this would be legislation separate from any legislation brought forward to allow the Lords and Commons to vote on the terms agreed with the EU. If so that would allow further opportunities for substantial delay. Moreover, if the UK leaves after two years (the period stipulated in Article 50 if the EU does not agree to an extension) without any agreement having been reached between the UK and the EU, the need to pass a Bill making EU derived law UK law would still exist and the opportunities for delay or rejection by one or both of the Houses of Parliament would still be there, arguably in an enhanced form.
As things stand the earliest the UK can escape from the EU will be March 2019. The next General Election is due on 7 May 2020 according to the Fixed Term Parliaments Act 2011. The only ways an election could be called earlier is either two thirds of the House of Commons (that is two thirds of the total number of Commons seats not two thirds of those who vote – 417 seats out of 650) vote for an earlier election or the Government loses a vote of No Confidence. With the present balance of the Commons the first option is very unlikely and the second would require the absurdity of Theresa May somehow engineering a vote of confidence against her own government. Hence, either is very unlikely. That would mean that when Parliament gets to vote on whatever agreement is reached by the Government and the EU , even the Lords alone would have the power to delay matters either into the general election or shortly after it.
The political weather might change radically by 2020. It could be that the EU deliberately gives the UK the run around for two years or more and no agreement is reached before March 2019 or one or more of the 27 remaining EU members refuses to ratify the proposed agreement. The UK would then be forced either to leave the EU without an agreement and trade under WTO rules or the UK government under the pressure of time would have to cave in and agreed to very disadvantageous terms for the UK. It could even be that the Government, their backbenchers or the entire Parliament of both Houses will secretly be delighted if the latter happens because it would probably re-attach the UK to the EU it is a way to enable future UK Governments to be able to use to embed the UK ever more firmly into the EU. Improbable? Well, remember this, the Government , the Commons and the Lords are strongly in favour of the UK remaining in the EU. The Prime Minister, Chancellor and Home Secretary are all remainers at heart and the Foreign Secretary of a shameless opportunist who would come out for remain at the drop of a hat if he thought it would aid his political career. Not only that but the Civil Service at least at senior levels are also very wedded to the idea of the UK being in the EU.
The idea of leaving and trading under WTO rules until if and when new trade arrangements can be made with the EU is not an unattractive one. The problem is that if it happens in 2019 that will have cost the UK a great deal . If it was done now it would have a number of great advantages. It would immediately bring certainty whereas delaying the UK’s departure until March 2019 or even later will involve a great deal of uncertainty. In addition The UK could stop paying the huge subsidy the EU extracts from the UK each year soon, decide where the money the EU currently returns to the UK with strings attached may be spent, be immediately removed from the reach of the European Court of Justice, be free to make new trade deals with the rest of the world, control immigration from the European Economic Area (EEA) and repeal or amend any of the EU inspired legislation which is on the Statue Book.
If the UK remains entwined within the EU until March 2019, regardless of whether any agreement is reached between the UK and the EU , will have since the vote to leave on 23rd June last year have paid 33 months of the huge annual subsidy to the EU (33 months worth would be around £26 billion), have had to spend the money which the EU currently returns to the UK on what the EU directs it shall be spent on, accept any new EU laws and regulations which cannot be vetoed, remain under the European Court of Justice’s jurisdiction and, most importantly , be unable to control immigration from EEA, which if it remains at the level of last year (net EEA immigration to the UK is estimated to be 189,000 in the Year Ending June 2016) would mean around half a million more immigrants by the time the UK leaves the EU (and it could easily be higher as would-be immigrants scramble to get in before the UK’s departs the EU).
The long and the short of the speech is that despite its range of topic May’s speech provided precious little clarity overall about either what the Government will be seeking or what will happen once an agreement is made between the UK and the EU or no agreement is made.
