[This was first posted on Monday 18 September. Between us, Google and I then managed to lose it and revert to an earlier edit. I've reconstructed it as far as possible, but some of it might feel a bit out of date.]
Some campaigners to leave the EU liked to reel off a list of things the British have given to the world, which would stand us in good stead when we set out on the great global journey on our own - things like the English language, the BBC and the
rule of law. And yet...
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"German politician Elmar Brok has ridiculed Theresa May's offer to protect the rights of EU nationals living in the UK" reports the Daily Express, whereas the
government position is that
"The commitment we will make will be enshrined in UK law, and enforceable through our highly respected courts".
If it comes to it I'd generally back UK courts (which is more than the Daily Mail sometimes does) but they can only work with the law they're given and, it appears, the government they work under.
Why would Elmar Brok be so concerned? There might be some detail to sort out but surely a British court is up to the job of guaranteeing people's rights. Yes, but what will be the law they're given to do it with? And will the government take any notice?
On Thursday
the British government expelled an Afghan in contravention of a court order. The young man, who had worked for the Afghan government and US companies, and feared for his life, sought refuge in the UK to join his father who had already been granted asylum. He is his father's main carer.
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| Amber Rudd, Home Secretary |
The
Guardian reports that the Home Office
"decided not to abide" by a court order intended to prevent him being put on a plane to Kabul, so there he ended up. At that point a second order was granted which described the home secretary’s breach of the first court order as
“prima facie contempt of court”. The
Independent reports he is
"expected to be returned to London on Sunday morning after the Court of
Appeal threw out the Government’s attempt to keep him in Afghanistan".
Latest update, 18 September: Mr Bigzad has been brought back to the UK overnight,
as reported by the BBC.
This follows
many stories about Afghans who worked as interpreters for coalition forces during the occupation of their country but found it difficult to seek refuge with their erstwhile employers when the Taliban identified them as collaborators and threatened them with execution.
Those
"highly respected courts" have done their jobs here, but the government has gone against their orders. The same government which declares that the rights of EU expats will be
"enshrined in UK law". Could the UK's intentions, declared to the EU withdrawal negotiations, come into question?
The UK has always made it more difficult than other countries for EU expats who make a home here to apply for permanent residence, which they have the right to do after five years. Until recently our form has been 85 pages long, compared with half a dozen in some other countries, original documents have been required, and sometimes kept for months, and people have sometimes found it necessary to pay for legal representation to navigate the process.
One of the common reasons permanent residence has been refused is that
applicants have no health insurance. They might have been in the UK for a decade, using the NHS as is their right under EU arrangements, but suddenly they were required to have separate insurance. The
EU Commission has warned the UK government that this is not legal:
"Under the Free Movement Directive, EU citizens who
settle in another EU country but do not work there may be required to
have sufficient resources and sickness insurance. The United
Kingdom, however, does not consider entitlement to treatment by the UK
public healthcare scheme (NHS) as sufficient. This breaches EU law".
That was until recently. Now, if you go to the government website to
the page headed Status of EU citizens in the UK: what you need to know you're told
"There is no need for EU citizens living in the UK to do anything now. There will be no change to the status of EU citizens living in the UK while the UK remains in the EU. If you would like to find out the latest information you can sign up for email updates".
Until there is an agreed system, they admit, there's no point in doing anything. Not least because "People who have been continuously living here for 5 years will be able
to apply to stay indefinitely by getting ‘settled status'". This means that people who already hold a permanent residence card, who've filled in the 85 pages and run the gauntlet of the process, who've eventually got all their documents back, will have to do it all again. We're promised it will be a simpler system, which I, EU expats and our EU partners will believe when we see it.
This shouldn't be treated as a postscript, but finally there are the 100 deportation letters sent "in error" to EU expats in the UK. When the alarm was raised across social media apologies came thick and fast, with Theresa May called it an
"unfortunate error", adding:
"I want to assure EU nationals here in the
UK that their rights and status in the UK have not changed". To which an appropriate response might be "Yeah, right".
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Customs is one of dozens of areas requiring detailed negotiation and comprehensive system design to have any hope of working after Brexit. The UK government put out a
discussion paper on customs for the Brussels negotiations which David Davis quickly dismissed as
blue sky thinking. It calls for
"flexible and imaginative" solutions, not least to the question of Northern Ireland's border with the Republic.
All the suggestions seem to be based on the twin ideas that:
- The UK should keep its regulations and customs areas aligned with the EU's - oh, and we'll collect each other's customs duties (which should annoy the Brexiters)
- Everything should work much as it does now, but outside the customs union and without the ECJ to underpin the legal framework (which should annoy the EU which would have to foot the bill for a new and more complex system with no advantage to them)
But everyone should get a laugh from
"We acknowledge this is an innovative and untested approach that would take time to develop and implement".
Back in the real world, HMRC
envisages a new unified system to draw together 26 organisations which deal with various aspects of cross-border dealings, but significant work is required even to complete an upgrade of the existing system to handle 130,000 UK companies which import from and export to other EU countries but currently have no need to come into contact with customs due to single market membership.
The number of customs declarations is expected to increase up to five-fold to 255 million a year but as Private Eye (issue 1451) and other commentators point out, new government IT systems don't have a good reputation. The
National Audit Office identifies a
"risk that HMRC will not have the full functionality and scope of CDS (Customs Declaration Service) in place by March 2019 when the UK plans to leave the UK". Since the future UK-EU customs relationship will not be known for some time, and quite possibly not by the likely withdrawal date of March 2019, HMRC are obviously preparing options for transitional arrangements.
But surely, with good will on all sides and a following wind everything will go all right. No? But where would that good will come from?
An inquiry by the EU's anti-fraud office has concluded that the UK should pay a fine of €2bn for customs failures. Other EU member
states acted to stop fraud associated with lost customs duties on Chinese-produced textiles and shoes imported into the EU via the UK between 2013 and 2016, but HM Revenue &
Customs (HMRC) continued to ignore fraudulent evasion of duties. Several countries have also reported significant losses of VAT.
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A final example of this government's shaky relationship with the rule of law goes back a couple of years. The FT's legal commentator
wrote in April 2015:
"In a judgment handed down today the High Court held that yet again the Ministry of Justice under Grayling had acted unlawfully".
Chris Grayling was Justice Secretary at the time, which made him the only minister with a responsibility to uphold the rule of law specifically written into statute. And yet he was determined to ignore his ministry's own statutory rules to force a change of policy about the treatment
of prisoners.
He had told his barrister to argue that the rules (called Directions) had been issued by a Justice Secretary, could be changed or removed by a Justice Secretary, and that therefore they were "not directions
to him but by him, and he cannot be bound by them". The judge dismissed this argument, declaring that "so long as [the directions] remain in force they are
binding on the Board and also binding on the Secretary of State, in the
sense that he cannot lawfully tell the Board to ignore them or his
officials to frustrate them".
Saboteurs department
Boris Johnson decided that six days before May makes her speech in Florence was a great day to write 4000 words (maybe 1000 when you remove the waffle) on his "optimistic" vision of Brexit. The full piece is
here, and Christopher Hope's bullet-point style introduction to it is
here. Both are behind a paywall, so here's an even more bullet-point style illustration just in case.
This was prepared by someone who is far from friendly to Johnson's cause but does reproduce Hope's ten headlines faithfully. To take just one of these "points from a plan", does this look like a point from a plan?
And to take just one passage from Johnson's original article (this is from the section entitled "Our destiny will be in our own hands"):
"But, of course, this country still has chronic problems, and at least some of them have been exacerbated by the rigidities of EU membership - and certainly by the way we have chosen legally to apply those obligations. Our infrastructure is too expensive - and takes far longer than France or other countries. Successive governments have failed to build enough homes - though this is now being tackled by Sajid Javid.
"Our vocational training is often superb - but still not inspirational, and we have yet to find a way of persuading middle-class kids that they might be just as well off getting a skill as a degree. We do not conduct enough basic research in science, and I am afraid we still have too many schools that are content with second-best. The result of all these failings - over decades - is that we have low productivity: lower than France or Germany."
So according to Johnson, EU membership has exacerbated at least some of this country's problems and the way we've chosen to implement them has certainly exacerbated some of them. Note that word "chosen". It's up to each member state to decide how to implement each EU directive, and I'd certainly look at any examples Johnson puts forward.
But what does he put forward? In infrastructure, house building, vocational training, basic scientific research, school quality, we're just not doing as well as... France and Germany. What exactly is he blaming on the EU?
Finally, this morning's contribution from Chris Giles, the Financial Times' economics editor, is valuable because it analyses the claim made, seeks out the source and then evaluates the argument. Importantly, and again, Brexit turns out to be irrelevant. Read the thread of tweets for yourselves.
