Friday 16 June 2017

These times are far too interesting


Following the election on 8 June we have a prime minister on probation, who has selected a cabinet by asking just about all of the top ministers who are still around to carry on doing their jobs, and filling a couple of gaps (sorry Liz Truss).  But this is also a government on probation, without the authority (or even the legal status) to do much until they can demonstrate majority support in the Commons.

#MrsMe has also appointed a full set of junior ministers, whose legal status is even shakier until the queen's speech is past.  MPs don't get paid until they've taken the oath (which all of them should have done by the end of Thursday), but what triggers payment of higher salaries for the various grades of minister?

What they're all waiting for, the queen's speech, depends on the Tories reaching a confidence and supply agreement with the DUP, thereby creating a minority government which can command a majority in the Commons on the big things at least.  As Thursday progressed there was doubt that the deal was anywhere near finalised.  This thing was taking longer than it took two parties to reach a real coalition agreement in 2010.  It has to be ready for Wednesday 21 June, however, because we've been told that's the date.






Later reports suggested the "Confidence" bit, allowing the DUP to support a "revised Queen's Speech" had indeed been agreed.  People will be laying bets on which pages of the Conservative manifesto have been ripped out at Arlene Foster's request and which because of Tory embarrassment and weakness.  The speech itself might need a few final touches but the major sticking point is elsewhere.

Enter, stage left, another villain, the Treasury.  Everybody and the family pets have been saying the DUP will be asking for money.  They're very conservative in some ways but rather welfarist in others, and they see the province itself as a claimant, which habit has grown through the Troubles and emergence from them.  Northern Ireland receives more public money per head than any other part of the UK, and has had a sizeable chunk of "peace money" from the EU.

Philip Hammond's people will be concerned if any promised allocation has implications for Scotland or anywhere else under the Barnett formula.  (This was put together in 1978 as a "temporary expedient", has "no legal standing or democratic justification" and which its author Joel Barnett was still wishing to see replaced until his death in 2014.  It's now a major factor in budgeting across the central government and devolved nations of the UK, and one of those stupid things whose replacement would be hellishly difficult to define and agree.)

And then there's the Renewable Heating Initiative, whose cost is pushing up towards £500m and which caused the collapse of the Northern Ireland executive and a new Ulster election in March of this year.  Forming a new executive is now an urgent task, since it is legally required by 29 June.  It's hard to imagine the Treasury simply covering that bill, but I'd be amazed if it wasn't somewhere in the workings.  So the people at Horse Guards Road will be questioning the total cost of this not-coalition and also any loose ends which might look tempting to Holyrood or Cardiff Bay.  This thread from Faisal Islam sets out some of the story.




What else is happening next week?  Wasn't there something in Brussels?  Oh yes, the opening of the Brexit talks.  When we don't actually have a government.  And, it appears, when #MrsMe hasn't consulted the putative opposition about "her team's" approach.  When the "Gina Miller" judgement was delivered at the Supreme Court and the prime minister starting to close down any talk of further parliamentary scrutiny I thought "it's royal prerogative all the way from here".  She still has that attitude, but she's now so weak, and making so many mistakes.




I've seen claims that David Davis is regarded as stupid by civil servants and won't read briefs, that his department hasn't consulted academic lawyers in its research, and many claims that industrial companies and bodies have been listened to more attentively if they are basically "on board with the project".  Select committees have made extensive use of outside expertise.  Of course government should have the best lawyers to hand, and the civil servants who work with EU law all the time will be invaluable in this exercise, but a department which won't open itself up to scrutiny, or even leads us to think it won't because it is excessively secretive, doesn't engender confidence.

The problem was exemplified in testimony to the Treasury select committee just two weeks after the referendum vote.  Michael Dougan, Professor of European Law at Liverpool University stated that the "having regard to" clause in Article 50 means that there must be talks on the future UK-EU relationship during the negotiations starting next week (what Davis wants to hear), but strictly speaking the EU can only negotiate in the legal sense with a "third country", which the UK would only become after leaving (which Davis doesn't want to hear).

Anyway, the EU27 have released an anodyne agenda for their opening meeting.  They'll talk to Davis, whatever his credibility level.




BBC News reported on Friday that Davis had agreed to the EU27's timetable - progress to be made on expats' rights, the financial settlement and Northern Ireland before Michel Barnier will even be allowed to address the subject of a future relationship.  DExEU issued a denial imprecise enough not to directly contradict the BBC report.  David Allen Green, the FT's legal commentator chased the department to clarify whether the simple statement that "UK has agreed to EU sequence", as tweeted by the BBC's Damian Grammaticus, is true. 

After several hours the press office responded,  “We have nothing further to add to our statement.”

 
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