EU versus UK: pre-negotiations

Last Saturday, the leaders of the 27 remaining EU member states quickly agreed to a negotiating path towards a quick divorce deal with the UK. It is now up to the UK to agree to the guidelines so that the talks can begin. The main delay appears to be the UK election.

Despite the unpromising lead-up to Saturday’s summit in Brussels, including an awkward dinner between European Commission President Jean-Claude Juncker and UK Prime Minister Theresa May, and mutterings about the UK blocking EU budget talks ahead of their elections, the EU27 held out clear prospects of compromise.

However, EU leaders did not appear wholly confident, with concerns mounting that the British Prime Minister still does not grasp how long, complex and difficult the path to agreement will be. The main fear seems to be that even if the Conservatives record a strong victory in next month’s General Election, Mrs May will not be willing to moderate her negotiating positions. Indeed, the converse might be true: bolstered with a strong showing, Mrs May might be more inclined to refuse to engage in compromise efforts.

The European Council’s guidelines  define the framework for negotiations under Art 50 TEU, and set out the overall positions and principles that the Union will pursue throughout the negotiation. The European Council is settling itself down for a bumpy ride, and it is not pulling its punches. In the Core Principles section of the guidelines, it writes:

It reiterates its wish to have the United Kingdom as a close partner in the future. It further reiterates that any agreement with the United Kingdom will have to be based on a balance of rights and obligations, and ensure a level playing field. Preserving the integrity of the Single Market excludes participation based on a sector-by-sector approach. A non-member of the Union, that does not live up to the same obligations as a member, cannot have the same rights and enjoy the same benefits as a member. In this context, the European Council welcomes the recognition by the British Government that the four freedoms of the Single Market are indivisible and that there can be no “cherry picking”. The Union will preserve its autonomy as regards its decision-making as well as the role of the Court of Justice of the European Union.

Basically: the UK cannot boast about a hard Brexit, seek to withdraw itself financially from the EU, but still expect to benefit. After all, you cannot have the benefits of club membership without paying your membership fees.

Under Agreement on arrangements for an orderly withdrawal, the European Council  strongly reiterates citizen’s rights:

The right for every EU citizen, and of his or her family members, to live, to work or to study in any EU Member State is a fundamental aspect of the European Union. Along with other rights provided under EU law, it has shaped the lives and choices of millions of people. Agreeing reciprocal guarantees to safeguard the status and rights derived from EU law at the date of withdrawal of EU and UK citizens, and their families, affected by the United Kingdom’s withdrawal from the Union will be the first priority for the negotiations. Such guarantees must be effective, enforceable, non-discriminatory and comprehensive, including the right to acquire permanent residence after a continuous period of five years of legal residence. Citizens should be able to exercise their rights through smooth and simple administrative procedures.

The European Council also recognised the Northern Ireland/Republic of Ireland quandary, and seeks to limit any potential damage:

The Union has consistently supported the goal of peace and reconciliation enshrined in the Good Friday Agreement in all its parts, and continuing to support and protect the achievements, benefits and commitments of the Peace Process will remain of paramount importance. In view of the unique circumstances on the island of Ireland, flexible and imaginative solutions will be required, including with the aim of avoiding a hard border, while respecting the integrity of the Union legal order. In this context, the Union should also recognise existing bilateral agreements and arrangements between the United Kingdom and Ireland which are compatible with EU law.

Whilst EU law must be recognised and upheld, the EU is willing to be flexible in any final agreement in order to prevent the imposition of a hard border.

Developing the guidelines was the relatively easy part, highlighting as they do the elements all member state agree on: the need to negotiate withdrawal terms before agreement on future relations, and prioritising citizens’ rights, the financial settlement, and border concerns — particularly for Ireland.

However, there is always going to be differences under the surface of the guidelines. And the risk of disagreement among the EU 27 on detailed aspects of the Brexit negotiations is high, largely because the interests of individual countries in the Brexit talks diverge as much as they do on any other issue. A key priority which is subject to different interpretations and interests is citizens’ rights. On the one hand, countries such as Poland and Lithuania are concerned about their own citizens now living and working in the UK. On the other hand, countries such as Spain and Malta have a primary interest in the fate of British retirees who live in those countries, and the related costs for health care and other services.

The European Council has prepped its hand. It put on a strong, unified showing in its swift agreement on the guidelines. But for how long will it stay unified?

Fast forward to this week, and it is the turn of the European Commission to lay down its cards in advance of the forthcoming Brexit negotiations.

The EU’s Brexit negotiator Michel Barnier, presenting the European Commission’s proposed negotiating directives today, said it was wrong to try to make people believe the separation will be a painless process with no impact on people’s lives. He added that it was not the European Commission’s intention to “punish” the UK for leaving the bloc.

He hinted the talks process will be long and complicated, and warned no one should expect a quick deal:

“Some have created the illusion that Brexit would have no material impact on our lives or that negotiations can be concluded quickly and painlessly. This is not the case.

“We need sound solutions, we need legal precision and this will take time.”

Barnier said in order to ensure the talks succeed and agreement is reached, the UK “must put a great deal of energy and effort” into reaching agreement on key three areas: borders (especially between Northern Ireland and the Republic of Ireland), the rights of EU citizens, and the process for calculating a financial settlement.

It was said that the so-called divorce bill – now estimated at €100bn (£84.5bn) -was not a punishment for the UK leaving, but rather a “settling of accounts”.

Barnier made sure to highlight the remaining 27 member states’ show of unity at last weekend’s summit.

It is evident that the looming negotiations will not be straightforward – perhaps much to the displeasure of the British government, especially if time is spent wrangling over the divorce bill. ‘Take Back Control’ must seem like a distant memory, now.

I for one welcome the stance taken by the EU institutions pertaining to the island of Ireland. It is great to see the EU confirm it will attempt to be as flexible as possible when considering the imposition of a border. It certainly makes a change from the endless refrain of “no return to the borders of the past” from the British government…

Conservatives and European Convention on Human Rights… Again

Whenever the Conservatives are not falling out over Europe in the form of the European Union, they are falling out over human rights. Merge these two traditional battlegrounds together, and you are left with the European Convention on Human Rights (ECHR). And after the Prime Minster’s sudden announcement of a snap General Election, it should come as no surprise that the ongoing ECHR issue will inevitably feature in some form.

Yes, the Conservatives have a habit of expressing their desire to repeal the Human Rights Act 1998, the legislation which enshrines the Convention into domestic law. They also have a fondness for expressing their deep-rooted hope to see the creation of a British Bill of Rights in place of the 1998 Act. The more daring and extreme will speak too of the UK withdrawing from the European Convention itself.

I have written about all this before, but this once again is of topical relevance since the announcement we shall return to the polls on the 8th June.

Since becoming Prime Minister – back when she kept vowing she would never call an early election – it was reported Mrs May planned to fight the 2020 General Election on a platform of leaving the ECHR. Apparently, the Prime Minister sought to “lift and shift” rights protections so people in the UK could only seek rights protections in UK courts, not the ECtHR.

It was also reported Mrs May “has decided that she cannot start that fight with the prospect of negotiating Britain’s exit from the European Union set to dominate Parliament over the next few years.” Therefore, Conservative plans to replace the 1998 Act with a British Bill of Rights were seemingly put on hold, albeit temporarily, because of the Brexit result. And recall that during her leadership bid, Mrs May said pulling out of the ECHR was not something she could pursue in this Parliamentary mandate because of the Conservative’s slim majority.

So the question becomes this: if Mrs May intended to fight the 2020 General Election on a manifesto pledge to see the withdrawal of the UK from the ECHR, might it feature now, during this snap campaign? Moreover, if Mrs May is calling this early election on the basis of her slim majority and the need for a greater mandate, should she acquire a comfortable majority, would she venture forth and take the UK out of the ECHR?

It would appear I am not the only one querying what might unfold. Theresa May has apparently been urged to commit to staying in the ECHR in the next Parliamentary term, dude to concerns she could try to get a mandate at the election for taking the UK out of the treaty after Brexit. And this comes from within her own party, as some in the liberal wing of the party (yes, such a wing apparently exists in the Conservative party) are worried that Mrs May will be tempted to include leaving the convention in her election manifesto.

After all, her predecessor David Cameron at the last election submitted plans for a British Bill of Rights to restore some sovereignty over human rights whilst remaining within the ECHR. Thus Mrs May now finds herself having to decide whether to proceed with those plans after Brexit, or go even further and withdraw the UK . This was advocated last year by Nick Timothy, her co-chief of staff – who just happens to be heavily involved in drafting the Conservative’s manifesto.

I wrote only a few months ago:

Yet, it was suggested the drafting and implementation of a British Bill of Rights is now unlikely to happen at all due to concerns that Mrs May would face a rebellion by Conservative MPs. And as previously outlined, all it would take is a small band of backbench Conservative rebels to cause trouble, given Mrs May’s slim majority in the Commons.

Of course, the Prime Minister could call for a snap election in an attempt to boost her majority. Whilst this is unlikely, it is not completely so: British Labour is struggling in the polls, and as the UK Supreme Court recently ruled the UK Parliament must be granted a vote on Art 50, Mrs May might think it better to increase her majority now for an easier life in the long run.

At this point, after so many ups and downs in politics and a never-ending stream of elections, I will say this: never say never. I would not be surprised if Mrs May, intent on pursuing a hard Brexit, might go further and not only oversee the UK withdrawing from the EU, but perhaps the ECHR as well.

From snap press conference, to snap General Election.

And so it came to pass, the Tuesday after Easter weekend, that the British Prime Minister did announce her intention to call an early General Election.

What started out as a sudden announcement of a press conference outside Downing Street quickly descended into rampant speculation. Had Queen died? Is Theresa May resigning? Are we going to war with North Korea? Had Theresa May set off Trident? Is Jeremy Corbyn going to organise an Official Opposition? (Then again, maybe not. I did say it was all mere speculation.) And then, because Northern Ireland is that political thorn in the side of the British government these days (we still do not have an Executive, just so you know) there was some murmurings that perhaps the Prime Minister was about to deliver a statement on the political impasse here, and potentially announce the introduction of direct rule.

I thought the chat about the Prime Minister announcing a resignation on health grounds was unlikely. And, I also considered that despite some questionable decisions since last summer, Theresa May was unlikely to have accidently fired Trident. Firing metaphorical shots about Gibraltar is where it stops with this Prime Minister.

On the speculation about the suspension of Stormont, well, I did not think it to be entirely impossible. The British government is keen for resolution here; it has to present a united front of sorts during the upcoming Brexit negotiations. Moreover, no British government has ever enjoyed dealing with the political crises Northern Ireland throws up. However, I ruled this out because any announcement on Northern Ireland, whether to impose direct rule or call yet another snap election, would surely come from the Secretary of State. James Brokenshire has taken the lead on Northern Ireland since the Executive’s collapse over the RHI controversy in early January. Theresa May has taken a back seat, especially over the recent negotiations and their subsequent collapse and re-formation. James Brokenshire had said he would come to a decision after the Easter weekend, and the political parties do seem to be stuck in stalemate. But I doubted the Prime Minister would summon the UK-wide media to a sudden press conference just for Northern Ireland.

That left speculation over an early General Election. This seemed possible to me, with Labour polling in dire straits, with the Conservatives polling strongly in marked contrast. And after all, Theresa May needs a mandate, and urgently. She found herself anointed as Conservative Party leader and thus Prime Minister last summer; she was never elected to be Prime Minister. Attempting to oversee the most divisive operation in Brexit, she needs to say she has the support of the people – at least, the support of the majority of those who vote. Moreover, she does not wish to be simply the Prime Minister who heralded Brexit. As we have seen with her stance on education, particularly around grammar schools, there is a whole domestic policy agenda she wishes to pursue.

The scene is set. The Prime Minister settles down at her podium, ten minutes before she was expected. Truly, we all should have picked up the theme was ‘early’ from that alone.

And so she duly announced she had spoken with her Cabinet, and all had agreed an early election was the most suitable course. It shall be held on the 8th June, and essentially contested on Brexit.

In her statement, May said her government was trying to deliver on last year’s referendum result by making sure Britain regained control and struck new trade deals.

“After the country voted to leave the EU, Britain needed certainty, stability and strong leadership. Since I became prime minister the government has delivered precisely that,” she said, but claimed that other political parties had opposed her efforts.

“The country is coming together but Westminster is not. Labour have threatened to vote against the final agreement we reach. The Lib Dems have said they want to grind the business of government to a standstill. Unelected members of the House of Lords have vowed to fight us every step of the way.”

Now, Theresa May has been quite clear in the past about wanting the next general election to be in 2020, so she stunned many in Westminster by announcing that it would actually be held this year.  The Prime Minister claimed she had changed her mind “reluctantly”, although the spate of polls putting the Tories as much as 21 points ahead of Labour may have made it easier. You know, 21 points ahead means 21 points ahead. And all this, despite a recent policy blitz by Jeremy Corbyn and Labour. Evidently, the Prime Minister was tempted to capitalise on the poor ratings in an effort to boost her slim working majority in order to pass both Brexit and domestic legislation. (This, of course, will render her current reliance on the support of the DUP in the Commons null and void…)

The Prime Minister will first have to win a vote by MPs today to hold an early election thanks to the Fixed Term Parliament Act. Under the Fixed-term Parliaments Act, she cannot call an election directly, but must laydown a motion in the House of Commons. This will require two-thirds of MPs to back it. The Commons vote will follow a 90-minute debate on Wednesday, after Prime Minister’s Questions and any urgent questions or ministerial statements.

That shouldn’t be too hard for her to win given that Labour has welcomed the move, while the SNP and Liberal Democrats would find it hard to vote against it as they would be effectively voting to keep the Tories in power.

Currently, the Commons composition looks like this: the Conservatives have 330 MPs, giving the party its working majority of 16. Labour has 229, the SNP 54, and the Lib Dems 8. The DUP hold 8, Sinn Féin 4, the SDLP 3, and the UUP 2, with one Independent. Plaid Cymru have 3 seats, the Greens 1, and there are four other independents. (Note that UKIP recently lost their only MP, when Douglas Carswell announced his resignation from the party. If he votes with his old party, the Conservatives, he gives the government a majority of 17.) Based on current polling, Labour could lose around 70 seats.

The Conservative leader said the vote would give “certainty and stability” to the country for the Brexit process. As nothing promises stability and certainty quite like an early General Election on the most divisive issue of our times in Brexit.

Moreover, Theresa May might have hurt her public image slightly by calling this election. After vowing for months that she would not seek a snap election, insisting she would see the government through to the next statutory General Election in 2020, she now appears to have gone back on her word for the sake of her party, and party seats. The Independent has rather helpfully complied a list of her statements on the issue of an early election. It is worth highlighting that the most recent comment on the issue came just under a month ago.

This will be the second General Election in as many years, and the third UK-wide vote in two years. But spare a thought for my fellow citizens in Northern Ireland. We have had two Assembly elections in less than a year, and now have to return to the polls in a few months. And it gets better: if there is no agreement reached between the main political parties, we face the prospect of a third Assembly election in a few months, too.

Of course, one could argue that the decision of the Cabinet to support the Prime Minister in calling for an early General Election, during a time of political instability in Northern Ireland, is evidence of their (dis)regard for the peace process here. One could argue this. But as for myself, I’m digging around for my canvassing shoes. It is going to be a long few weeks.

Child tax credit limit reform.

In March, a controversial proposal became law without any debate or vote in the UK Parliament. It requests new mothers who are rape survivors for verification if they wish to claim tax credits for more than two children.

The 6th of April marked an important, albeit shameful date in the political and social calendar. It marked the date when the new change to child tax credit policy came into effect. What change? The one which says any child, the third in the family, born after the 6th April 2017, will not eligible for child tax credit for that family. It also saw the coming into effect of the ‘rape clause’.

The regulations, announced in the 2015 Budget by the then-Chancellor, George Osborne, were put into law through a statutory instrument, a form of legislation that allows laws to be amended without parliament’s approval. The policy implemented on 6 April restricts tax credit entitlement for new claimants to a maximum of two children, with exceptions for multiple births – and for women who could show that their third or subsequent child was conceived as a result of rape.

Those seeking to claim the exemption for rape must be assessed by what the British government has described in a consultation as a “professional third party”, which could include health workers, police, social workers or rape charities.

The Department for Work and Pensions has described the changes to tax credits as “a key part of controlling public spending”, and has pledged to implement the exemptions in “the most effective, compassionate way”.

Controlling public spending. This is an ideological battle of finance, a promulgation of the lazy stereotype that the poor claim hard-earned taxpayers’ money. It is not about consideration of all citizens. This is not about compassion.Moreover

It is wrong that the British government’s reforms of child tax credit target women and families from socio-deprived and disadvantaged backgrounds.

How many families might be thrust into poverty because of this? Policy in Practice recently published a paper which estimates child poverty could be driven up by 10% by 2020. You see, families receiving child tax credit are using it to bring up their children, to assist them in times of ever-increasing cost of living. It is not, and never has been, about receiving ‘freebies’. It is not, and never has been, about incentives to keep giving birth and claim state handouts.

Try as I might, I cannot forget the week beginning 3rd April, and the implementation of these reforms. These reforms are essentially an attack on women and single mothers. If you oversee a family of more than two children, and you struggle to make ends meet, this government will punish you for having that third child. If you are a woman with a struggling family, or a single mother with a struggling family, the government is telling you it shall not assist you with your children, because you dared to have three. You are too poor to have more than two children, whereas your middle class peer is welcome to have three children.

A man might have multiple children with multiple partners, and he shall not suffer the consequence of these reforms. Women, who comprise the majority of primary -givers, will feel the repercussions of this policy.

This is punishing poorer women. This is punishing children. Child poverty could increase by 10% within three years as a consequence of these reforms, but the government does not care. It does not want to assist the less well-off in society, despite evidence illustrating that investing in early years and children pays off. Lifting children and families out of poverty increases their future prospects – health, education, self-esteem, well-being, mental health. This government talks abut looking after the JAMs, the Just About Managing, but apparently only so far as they do not have more than two children.

Moreover…It is reprehensible that the British government’s reforms of child tax credit include making women prove their third child was the result of rape.

It is degrading and wrong to expect rape survivors to recount their ordeal. It is heartbreaking that such a callous policy was ever mentioned, let alone implemented by the British government. This ‘rape  clause’ might open women to re-traumatisation; it takes no account of their dignity and humanity but cares only about finances.

Imagine being a survivor of rape. Imagine discovering you are pregnant. Imagine making that difficult decision to keep the baby. Imagine opening a form, just to see you are expected to sign a little box which says your third child was the result of ‘non-consensual conception’ – a jumble of policy-speak, lacking empathy and understanding of your painful circumstances.

But then again, this is just an exercise in curtailing excessive public spending. The British government is going about this exercise in the most compassionate way.

Really.

 

Mr Osborne goes to London… Evening Standard.

George Osborne’s career looked finished after the overall vote for Brexit, and after he was unceremoniously ousted from Cabinet by the newly-crowned Prime Minister, Theresa May. The final nail in the coffin, it was thought, was when it emerged that his parliamentary seat of Tatton would be abolished in the boundary review. It seemed as though the former Chancellor of the Exchequer, having lost the Brexit gamble, had lost his political gravitas.

But then again, maybe not. For Mr Osborne has now found himself a safe seat – the Editor’s chair at the London Evening Standard.

Mr Osborne is expected to take up the new role in May, while keeping his seat in Parliament. He will have to balance his time carefully in order to fit in his other jobs: advising the investment manager Blackrock, chairing the Northern Powerhouse project, working as a Kissinger fellow at the McCain Institute and his speaking on the after-dinner circuit. His bulging portfolio has led to calls for him to stand down as MP for Tatton.

Yet Mr Osborne believes he can manage both jobs as ‘this paper is edited primarily in the morning’, while ‘Parliament votes in the afternoon’. This is rather ambitious: surely an editor needs to be an active presence in the evening, to confirm the final version before print? Extraordinary time management indeed.

Then again, one can afford such management. It has been suggested that since his fall from Cabinet grace, Mr Osborne has garnered more than £700,000 from public speaking; secured a £650,000 stipend for four days’ work a month from BlackRock; been granted a £120,000 fellowship at the McCain Institute; and can now expect to take home more than £220,000 for a four-day week at the Standard. That’s on top of his £75,000 salary as an MP.

Needless to say, the announcement of the selection of Mr Osborne caused such a furore, because MPs who undertake second jobs will now fear Mr Osborne’s dealings will lead to a crackdown on outside earnings that, in turn, will cost them money. Already it has been suggested that this will trigger an official review by the UK’s chief standards watchdog, the Committee on Standards in Public Life.

And so cue the argument for Mr Osborne to step down from his position as a MP immediately. This is not just on the basis of money, but also on the basis of the conflict of interest argument.

Claims of a conflict of interest between his membership of the third and fourth estates -and between his City and newspaper roles – are loud. It has to be said: how can Mr Osborne edit a newspaper, de facto positioning it along a political axis, whilst undertaking advisory work at BlackRock? How will he juggle engaging in private MP meetings, and overseeing political columns?

The former Chancellor’s break into journalism will give him considerably more influence than he would have as just a humble backbencher. Might it just offer him a means to exacting revenge on his political rivals?

It was noticeable that Number Ten was not in the loop over the former Chancellor’s work. The Prime Minister’s official spokesman was rendered speechless when the news was broken to him in his regular morning briefing.

Mr Osborne himself has made clear he would not be above giving his own government a hard time:

“We will judge what the government, London’s politicians and the political parties do against this simple test: is it good for our readers and good for London? If it is, we’ll support them. If it isn’t, we’ll be quick to say so.”

It might be argued that by taking on the position of editor of a newspaper with an estimated circulation of one million in the City of London, Mr Osborne might just be able to wield some political influence, namely through the political position adopted by the paper.

The main issue is that of Brexit: the former Chancellor was firmly on board with former Prime Minister David Cameron in campaigning for Remain. The current government is tasked with acquiring and implementing Brexit, but seems keen to go a step further than merely withdrawing from the EU – exit from the Single Market has been voiced. Mrs May has been adamant in her stance that there will not be an ongoing briefing to Parliament during negotiations – probably to prevent any criticism at home from weakening her position. Nevertheless, the media will still cover the negotiations to the best of their ability – the coverage – and angle – offered by the Standard during this time will be interesting.

Moreover, whilst Mr Osborne will no doubt be careful not to attack Mrs May personally, he could just use the paper to campaign for policies that will put him on a collision course with her instincts for more state invention on economics and immigration, on the basis that these are issues particularly important for London.

But any potential power of this position should not be overestimated. It should be remembered that the Standard’s current track record of persuasion is not exactly impressive. The Standard did come out in favour of Remain (check out that not-exactly-complementary reference to George Osborne) during the EU referendum last year, and London as a whole did vote Remain. However, on the basis of party politics: the Standard supported the Conservative Party in the general election of 2015, but it was the Labour Party who dominated. Moreover, the Standard supported Conservative candidate Zac Goldsmith in the 2016 London Mayoral election (who had announced his support for the UK to leave the EU) – Labour candidate Sadiq Khan was the victor.

Spare a thought during all of this for the constituents of Tatton. How must they feel, knowing their MP has multiple jobs and has declared himself a ‘Londoner’? As the MP for Tatton, Mr Osborne has duties in the North of England which do not align with his new-found duties as a newspaper editor in the South.

No doubt there will be more coverage of this story, and further developments. It is something to note though that on the same week the Prime Minister publicly reversed her Chancellor’s announcement on his policy of NI and the self employed – to his embarrassment, surely – the former Chancellor has proven he is quite content with life outside of the Cabinet circle – and that he hasn’t gone away.

The Brexit Bill.

And so it came to pass, that the UK government did finally publish a Brexit bill to present to the UK Parliament.

Yes, following the UK Supreme Court’s judgment that the UK Parliament must give its consent for the commencement of Brexit negotiations, the U.K. government tabled the bill which enables such a vote to obtain Parliamentary consent. It is this 137-word bill that will give Prime Minister Theresa May the power to trigger Art 50, and officially begin Brexit negotiations.

The European Union (Notification of Withdrawal) Bill was introduced to the House of Commons and given its First Reading on Thursday 26 January 2017. This stage was a formality, meaning that the bill is presented to the Speaker, its title read out, and all this takes place without any debate. In a statement with the bill, Secretary of State for Exiting the EU, David Davis said he trusted that the UK Parliament “will respect the decision taken by the British people and pass the legislation quickly”. In other words, neither he nor the Conservative government will brook no opposition to the bill, and will argue that to reject the government’s bill is to reject the overall decision of the UK to leave the EU in the 2016 referendum.

During Departmental question time, also on Thursday, Mr Davis refused to guarantee that the parallel government white paper on the withdrawal process, which was announced on Wednesday, would be published before the Art 50 bill had been debated in the Commons:

“It will be as expeditious as we can be, it takes time to do. But we won’t waste time in producing it for the house.”

The publication of this bill prompted UK Labour to table a series of proposed amendments, including one seeking to guarantee that the UK Parliament has a final say on any final deal.

The bill, containing just two clauses and only 137 words long, will be granted five days of time in the Commons, the government announced, prompting concern from some Labour MPs that it could not receive proper scrutiny in such a period. David Lammy MP, for example, said the bill was the “most important decision taken for generations” and allowing five days “shows contempt for parliamentary sovereignty”.

MPs will next consider the Bill at Second Reading, and this is the exciting bit in that MPs will have the opportunity to debate the bill. It is expected to have its Second Reading debate on 31 January 2017, with conclusion of Second Reading scheduled for 1 February 2017.

MPs can table ‘reasoned amendments’ to the motion for second reading, declining to give the Bill a second reading. The choice of any amendment to be considered is made by the Speaker. Any amendments that have been tabled are published in the Order Paper, and to date, five reasoned amendments have been tabled.

The Bill is then due to be considered in Committee on Monday 6 and Tuesday 7 February 2017, concluding in Committee on Wednesday 8 February 2017 when the remaining stages are also due to take place.

S1(1) of the Bill provides that the Prime Minister ‘may notify, under Article 50(2) of the Treaty on European  Union, the United Kingdom’s intention to withdraw from the EU.’. Moreover, s1(2) states that this section ‘has effect despite any provision made by or under the European Communities Act 1972 or any other enactment.’

Interestingly, it is not the only Brexit bill tabled in the UK Parliament. Conservative MP and long-time Eurosceptic, Peter Bone, tabled the PMB, the Withdrawal from the European Union (Article 50) Bill 2016-17. This Bill was presented to Parliament on 30 November 2016, and is expected to have its second reading debate on Friday 24 February 2017.

There is a subtle difference between Mr Bone’s bill and that of the UK Conservative government’s. Whilst Mr Bone’s bill seeks ‘to require Her Majesty’s Government to notify the European Council by 31 March 2017 of the United Kingdom’s intention to withdraw from the European Union’, the government’s bill aims ‘to confer power on the Prime Minister to notify, under Article 50(2) of the Treaty on European Union, the United Kingdom’s intention to withdraw from the EU.’ The UK government’s bill, if/when passed by both the Commons and the Lords, directly confers the authority to invoke Art 50 on the Prime Minister. Mr Bone’s bill is basically a ‘hurry it up’ type of bill, stating a deadline for the Prime Minister to notify the EU of her intention to trigger Art 50.

Mr Davis might have commented that he hoped MPs would accept and support the bill, and so ensure the legislation was swiftly passed. However, there could be trouble ahead in the form of the Official Opposition. Labour is divided between following the lead of its leader, or listening to constituents.

The Labour leader, Jeremy Corbyn, confirmed he would seek to oblige his MPs to back the bill, a decision that seems set to cause considerable opposition within the party. (Quelle surprise.) Moreover, when speaking to Sky News, Mr Corbyn said he would impose a three-line whip to ensure the PLP backed the bill.

“It’s clearly a three-line whip…It is a vote on the Article 50 … We will put out a statement today to our members that we want them to vote for Article 50.”

Mr Corbyn acknowledged the pressures MPs faced from their own personal views on Brexit, and that of their constituents, but urged all Labour lawmakers to “unite around the important issues of jobs, economy, security, rights, justice” to help frame the UK’s relationship “with Europe in the future.”

Perhaps trying to achieve the best of both worlds and satisfy all sides, Labour has tabled seven planned amendments to the bill. One such amendment would guarantee a “meaningful vote in parliament” on any final deal. Another amendment would be to guarantee the protection of workers’ rights and securing “full tariff- and impediment-free access” to the EU’s single market.

The other five amendments are: to ensure Mr Davis reports on progress to the Commons at least every two months, guaranteeing the rights of foreign EU nationals living in the UK; obliging regular consultation with the devolved governments, require regular impact assessments on the effects of leaving the single market, and to oblige the government to keep all existing EU tax avoidance and evasion measures.The final amendment is targeted at the government’s threat that if the UK does not get a sufficiently good deal from the EU it will walk away and shift the economy towards low regulation and tax.

The party will also support two more amendments, drafted by Melanie Onn MP, connected to protecting workers’ rights.

There has now been over sixty pages worth of amendments submitted, including a joint amendment from the SNP and SDLP, who are advocating the Scottish and Northern Irish Remain mandates respectively, and seek to uphold the devolved administrations’ role in the negotiations.

The issue becomes, of course, whether any of the numerous amendments will succeed: they would require cross-party support to pass. With so many amendments, there comes a risk that amendments will fall as parties feel other parties’ amendments do not go far enough, or go too far.

It had been wondered whether Mrs May might have to contend with trouble from within her own ranks, let alone from across the aisle. After all, Mrs May has a slim majority in the Commons, and one which she must guard and monitor carefully. A handful of backbench rebels, especially on Brexit, would present the perception to the public that she cannot control her own party, let alone the Brexit negotiations which will soon take place.

However, it appears that the Prime Minister might be able to strike one concern off the list: she most likely will face no rebellion, and will only have to face down any Labour MPs who rebel Mr Corbyn’s three-line whip, and other MPs who have vowed to vote against the government’s bill, including the Lib Dems, the SNP, and the SDLP.

Indeed, news came today that potential Conservative rebels are now quietly backing away from supporting amendments proposed by Labour, or other opposition parties. Moreover, a band of Conservative MPs fighting in particular against a hard Brexit are indicating they have been largely satisfied by the prime minister’s promise of a white paper. Consequently, Labour and the Liberal Democrats now believe there is very little chance of getting enough cross-party votes for amendments – the very issue I had previously addressed. They had hoped to win support on issues such as guaranteeing the rights of EU nationals, and a more meaningful vote at the end of the two-year negotiations or protections in the House of Commons. Instead, opposition parties are now concentrating on getting the government to concede points voluntarily, with Labour MPs believing the most likely proposal to be accepted is a demand for the Prime Minister to provide quarterly updates to the UK Parliament on the negotiations.

This does not mean that MPs will not seek to hold the UK government to account. Indeed, some MPs may still table amendments or support tabled amendments in an effort to restrain the Prime Minister in her quest for a hard Brexit. For example, MPs may come together to focus on ensuring the UK is not taking out of the Single Market without a Parliamentary vote. After all, the referendum last year asked the electorate whether they wanted the UK to remain in or leave the EU – it never mentioned anything about withdrawing from the Single Market, or the Customs Union.

Mrs May is aiming to have the bill passed through both the Commons and the Lords to meet her self-imposed deadline of invoking Art 50 by the end of March. It seems more than likely her government’s Brexit bill will pass, but not without debate and bumps along the way. How she emerges at the other end before triggering Brexit remains to be seen, but it is important that she does not appeared weakened after a bloody battle with MPs.

 

 

The Conservative Party, the ECHR, and the endless quest for British Bill of Rights.

Too many u-turns, and your neck will ache as though you could put in for a whiplash claim.

At least, this is how I feel when it comes to the British government, and the British Prime Minister, Theresa May, in particular with regards to the European Convention of Human Rights (ECHR). Will they withdraw the UK from the Convention, or will they not? Will we have the so-called British Bill of Rights, or will we not?

It feels as though this hemming and hawing has been going on for years. That’s because it has.

It started in 2010, in the Conservative Party’s manifesto for the General Election. The party pledged to repeal the Human Rights Act 1998, and replace it with a British Bill of Rights. Sound familiar? It should: the same pledge was included in the party’s 2015 General Election manifesto. (The same manifesto which promised to hold a referendum on the UK’s membership of the EU, and look how well that one turned out.)

Why is the Conservative party so desperate to repeal the Human Rights Act 1998, and implement instead a British Bill of Rights? After all, the aforementioned Bill of Rights would undoubtedly contain rights already legally recognised and protected in the 1998 Act. But the 1998 Act enshrines the ECHR rights into domestic application, and the ECHR just feels ‘foreign’ to the Conservative party. It’s probably the ‘European’ in ‘European Convention of Human Rights’ that does it.

The thought process of the Tories seems to be that by scrapping the 1998 Act, any formal link between British courts and the European Court of Human Rights (ECtHR) will be broken, and so the British courts ‘reclaim sovereignty’. Moreover, the reasoning goes, severing this link and withdrawing from the jurisdiction of the ECtHR would empower the UK Supreme Court as the highest legal authority. Conservatives argue foreign nationals who have committed serious crimes are able to use the freedoms guaranteed within the 1998 Act to justify remaining in the UK. They have also expressed their concern at perceived overreaching by the ECtHR, attempts to overrule decisions made by the UK Parliament and the courts e.g. lifting the ban on prisoners’ voting rights, or banning whole-life sentences for serious crimes.

The Conservatives therefore plan to introduce this infamous British Bill of Rights rooted in “British values”. The Human Rights Act contains a “laudable” set of principles for a modern democratic nation, says the party, and it does not plan to introduce new basic rights. Instead, the intention is to restore common sense and tackle this apparent misuse of the rights contained in the ECHR. The Conservatives published a short strategy paper outlining some of the key ideas in 2014 and promised to publish a full draft bill before the 2015 general election, but this never materialised.

The fun fact is, there are major blocks before the Conservative government, and always have been. In 2010, it was their coalition partners, the Liberal Democrats, who refused to back the repeal of the 1998 Act. In more recent times, the Commons, the House of Lords and the devolved Assemblies are set to be headaches for the UK government.

In the Commons, it must be remembered that Prime Minister May holds only a thin majority. Any backbench Tory rebellion against a proposed repeal bill/introduction of a British Bill of Rights, any suddenly Mrs might find herself caught in a tight spot by a relatively small number of rebels joining Labour and SNP ranks. This isn’t unthinkable: several prominent Tories have already voiced their criticism, including former justice minister Ken Clarke and former attorney general Dominic Grieve QC. They have warned repealing the 1998 Act could undermine the rule of law and risks putting the UK into conflict with the European court. Even if any bill managed to scrape pass the Commons, the Tories are outnumbered in the House of Lords.

The devolved administrations would serve as a thorn in the side of the UK government. In Scotland, First Minister Nicola Sturgeon has repeatedly vowed to oppose the plans. In Northern Ireland, moves by the UK government to repeal the 1998 Act would breach the Good Friday Agreement, in direct violation of international law. (The Good Friday Agreement is recognised as an international treaty, and was lodged with the UN.)

The plans also contravene various national agreements. The Sewel convention dictates that parliament cannot legislate for devolved matters without the consent of Scotland and Wales. Pushing any proposed bill through would therefore violate this convention. This, and the breach of the Good Friday Agreement, would provoke a constitutional crisis in the UK.

However, none of the above seems to have deterred the Prime Minister, and her Cabinet, from pursuing their objectives. That is, not until the outcome of last summer’s referendum on the UL’s membership of the EU. Since then, we have seen an interesting turnabout in rhetoric and policy.

In December 2016, it was reported that Theresa May was planning on putting withdrawal from the ECtHR at the core of the 2020 Conservative general election manifesto. Before she became the Leader of the Conservative party, and Prime Minister, Mrs May had made clear that she wanted the UK to withdraw from the ECHR, and the jurisdiction of the ECtHR.  In a speech in April she said the ECHR:

 “can bind the hands of parliament, adds nothing to our prosperity, makes us less secure by preventing the deportation of dangerous foreign nationals and does nothing to change the attitudes of governments like Russia’s when it comes to human rights”.

Yet during her leadership bid, Mrs May said pulling out of the ECHR was not something she could pursue in this Parliamentary mandate because of the Conservative’s slim majority.

And interestingly enough, the details of the Bill of Rights plans were initially drawn up by former Justice Secretary Michael Gove, who was sacked as part of Mrs May’s 2016 summer reshuffle.

Since becoming Prime Minister, it was then reported Mrs May planned to fight the 2020 General Election on a platform of leaving the ECHR. It was reported the Prime Minister sought to “lift and shift” rights protections so people in the UK could only seek rights protections in UK courts, not the ECtHR. It was also reported Mrs May “has decided that she cannot start that fight with the prospect of negotiating Britain’s exit from the European Union set to dominate Parliament over the next few years.” Therefore, Conservative plans to replace the 1998 Act with a British Bill of Rights were seemingly put on hold, albeit temporarily, because of the Brexit result.

The report also said:

A senior Government source said: “We would have been looking at having a huge row with a Parliament to get through the Cameron plan and we might even have failed. A clean break is by far the best option and, if we put it in the manifesto, even those Tory MPs who are squeamish about the idea will have to get behind it. A manifesto pledge also means the Lords will have to let it through eventually. All the signs are that the Prime Minister is up for this.”

You have to note the irony here: the Conservatives’ long-hyped promise to repeal the 1998 Act was admitted to have been temporarily shelved because of the delivery of another manifesto promise, that of the EU referendum.

But it does not end there. You see, come January 2017, it becomes apparent that perhaps the shelving of the plans was not going to be temporarily after all.

It was reported that Theresa May was preparing to permanently abandon plans for a British Bill of Rights after the UK leaves the European Union, because of the belief that Brexit would strengthen the sovereignty of UK courts.

Comments delivered in the House by Sir Oliver Heald, a Justice Minister, had suggested a decision on whether to introduce a British Bill of Rights will not be made until after the General Election in 2020. Yet, it was suggested the drafting and implementation of a British Bill of Rights is now unlikely to happen at all due to concerns that Mrs May would face a rebellion by Conservative MPs. And as previously outlined, all it would take is a small band of backbench Conservative rebels to cause trouble, given Mrs May’s slim majority in the Commons.

Of course, the Prime Minister could call for a snap election in an attempt to boost her majority. Whilst this is unlikely, it is not completely so: British Labour is struggling in the polls, and as the UK Supreme Court recently ruled the UK Parliament must be granted a vote on Art 50, Mrs May might think it better to increase her majority now for an easier life in the long run.

Whilst Mrs May and her Cabinet might have agreed to quietly abandon the plans to repeal the 1998 Act and introduce a British Bill of Rights, I wonder whether those who supported the plans within the Conservative backbenches will also stay quiet.

Mrs May imposed a March 2017 deadline to invoke Art 50, and thus commence the negotiations with the EU which would conclude with the UK leaving the EU. It will be interesting to see whether or not repealing the 1998 Act will be brought back, especially if there should be a snap election. Would this once more be a pledge in a manifesto?

Whatever happens, it must be noted that any move to withdraw the UK from the ECHR and the jurisdiction of the EctHR is something to be cautious about.