Unicorns all the way - Is May lying to herself?

On Wednesday 25 October, at prime minister's questions, Theresa May fell in behind her Brexit secretary and repeated the deluded mantra that she would achieve a trade deal with the EU to be signed the moment after Brexit. Yet the previous Sunday she was reported to have put off discussions of a trade deal in her cabinet until some time in 2018, after the EU have "stated their terms". As an unidentified minister supposedly told the Sun's Tom Newton-Dunn, "Theresa’s fear is the moment we do, half of us walk out. We just don’t know which half will yet". But the EU won't "state their terms" any more than they already have, since Article 50 is not concerned with trade, and Barnier will only ever be allowed to negotiate under the terms of Article 50.

An hour or so after PMQs Ivan Rogers, the UK's Permanent Representative to the EU until the beginning of this year, told the treasury select committee that May's red lines put us too far out of the EU to get anything more than a DCTA (deep and comprehensive trade agreement) like Canada's. He (and other contributors) also reminded us, though who but the cabinet needs reminding, that the talks May hopes will start after the December EU Council summit are not trade talks.

A few of Rogers' words, from the transcript of the meeting, tell us in no uncertain terms, "I stand by every word of what I said, and I used to say it when I was in Government, and it also what I hear in every capital now and from Brussels and Strasbourg now.  What we are talking about going into the new year are not trade talks; they are talks about the future partnership and the framework for that future partnership, and that is what is specified in Article 50.  Those are not trade talks.  I can understand why the press keeps on talking about them as trade talks.  Obviously they get into the whole structure, ambit and scope of the future relationship, which goes to trade, but the trade talks will only begin after we have left the European Union".

Which of course is the way the EU sees it. Here is paragraph 5 of their negotiating guidelines: "While an agreement on a future relationship between the Union and the United Kingdom as such can only be finalised and concluded once the United Kingdom has become a third country, Article 50 TEU [Treaty on European Union] requires to take account of the framework for its future relationship with the Union in the arrangements for withdrawal. To this end, an overall understanding on the framework for the future relationship should be identified during a second phase of the negotiations under Article 50 TEU. We stand ready to engage in preliminary and preparatory discussions to this end in the context of negotiations under Article 50 TEU, as soon as the European Council decides that sufficient progress has been made in the first phase towards reaching a satisfactory agreement on the arrangements for an orderly withdrawal".

And as the Guardian reported on Tuesday 24 October, "Barnier said he could envision a short transition period being agreed between the EU and the UK before March 2019 to ease the UK’s exit from the bloc, but it would require the British government accepting the continuation of EU law and the jurisdiction of the European court of justice. A future trade deal, however, would have to be negotiated over “several years” and “will be very different” from the status quo, Barnier told a group of European newspapers".

The whole evidence session can be viewed on the parliamentary website. You will also hear Rogers try to explain that No Deal doesn't actually mean no deal, because the country would collapse without "mini" deals on specific sectors. And Professor Catherine Barnard (Professor of EU Law, University of Cambridge) points out that many of our current arrangements with the EU - the EHIC (European Health Insurance Card) for example - depend on reciprocity, which can't be enforced by a piece of UK law like the EU withdrawal bill.

One of the most stunning pieces of evidence for me, though, is that 80% of Ireland's exports go either to the UK or through the UK by truck. Ireland is our hostage.

What comes next?

As Theresa May appeared at the EU Council in Brussels, with Merkel and Macron possibly conferring in English at this point, and gurning Tim Barrow (UK permanent representative to the EU) and towering Olly Robbins (May's point man at the talks, no longer reporting to David Davis) at their shoulders, rumours began to spread.

Nobody was expecting this week's council to decide that the Article 50 talks had made "sufficient progress" to move on to phase 2 (these terms are discussed below) but people have started talking about December (the next EU Council is on 14-15 December). Merkel was reported to have seen enough progress to hope it would be possible to "take the work forward and then reach the start of the second phase in December", and the Finnish prime minister was similarly hopeful:  "I hope we can decide the next phase in December’s meeting, but today we are not in that position".

On the British side of the Channel media and political voices immediately translated these tentative hopes into definite promises and started speaking of "trade talks in the new year". The problem is that the next stage referred to is not a trade negotiation. Phase 2 of the Article 50 talks, as defined in the European Council (Art. 50) guidelines for Brexit negotiations which define what Michel Barnier is mandated to talk about, is expected to identify an "overall understanding on the framework for the future relationship", and nothing more.

I've tried to construct a representation of this Brexit thing, and Article 50 is only a small but vital part of it. Nothing in the pink section on the right can be achieved until "exit day" (agreements might be signed later the same day or ten years later, but not before). I'll be amending this as I learn more and have errors pointed out, but here's the current attempt (draft 2).

The problem identified above is that British politics and media seem to think there's an arrow from the end of Article 50 phase 2 to UK-EU trade talks which is not the way the EU27 are working at all. Once the framework for a future relationship is agreed, trade talks might start in parallel, but they are not part of the Article 50 process.

Whatever Brexit is, it isn't what the government says

Let's kick off with a few facts:

1. Article 50 of the Treaty on European Union is about leaving the EU.  It's not about trade.
2. Nobody serious expects a trade deal between the UK and the EU to be negotiable within two years.
3. We have less than one year left

Whatever David Davis tells us, each time he and his hundred civil servants travel to Brussels to meet Michel Barnier and his supporting cast, they are talking about the terms on which we leave the EU.

They might eventually move on to the framework for a future relationship, parallel trade talks or some kind of interim or transition or implementation period, but the reason they're there is to agree on the terms of withdrawal.

Any trade deal (and probably an unknown list of other deals in the security, justice and regulatory areas) can only be signed once the UK has become a "third country" - after exit day - and will be negotiated under rules in a different part of the treaty.

There's a time limit on the Article 50 process.  There's no lime limit on trade talks.  Which is just as well if May & co really want a "deep and special" relationship with our "friends and partners".

One of the Leave slogans which is still quoted is that it'll be easy to come out with a trade agreement because we can just "carry on as we are now".  But we don't currently have a trade agreement with the EU.  We have a Treaty on European Union which the government wants nothing to do with.  Any new deal needs writing from scratch.

As we should be reminded more often, nobody in history has ever tried what May & co have taken on, negotiating a less advantageous trade relationship than the existing one.  The government's red lines mean that it cannot be as good.  The only question is how much worse.

So what is our government actually doing?  Pushing a bill through parliament based on the idea that every aspect of our relationship with the EU can either be discarded or copied over into UK law with any necessary changes on the way.  All by a single exit date, which everybody assumes to be March 2019, not least because that's the only thing that's at all certain.  There's nothing in it (yet) about either transition or implementation.

May's careful use of the phrase "implementation period" while everybody else talks about "transition" means there's not even agreement at the least detailed level about what can be delivered by March 2019.  She seems to assume her "about two years" will be spent getting software up to date and helping business to fall in with new, agreed ways of working.  No chance.

Unless the government's real intention is to walk away from the whole thing (and there are persistent rumours to that effect), I can only conclude that the majority of our political class (government and opposition) have deluded themselves in the same way and/or that none of them are telling us the truth.

Here's a prediction which I think is inescapable:  if the end result is No Deal it will drag Ireland down with us, damaging both economies seriously and probably setting the peace process back decades.  And I'm still being told not to talk the country down.

It is not talking the country down to warn against an incoherent and self-harming No Deal, or to argue that a mass delusion seems to be established in that crumbling palace on the Thames.

So when May and Juncker emerge from a Commission dining room and issue a statement to the effect that their talks have been "constructive and friendly" and that it was important to speed things up in "the coming months", my only response is:  what have they been smoking?

Yet another letter about Brexit - to my MP

We have all heard, for months now, the government's assertion that "no Brexit deal is better than a bad deal" but we've heard little serious discussion of what "no deal" might entail.

We're assured that walking out is an essential negotiating tactic, but never how it might apply in this case.  If you walk out and thereby return to the status quo ante, it could certainly be reasonable - nothing lost but time and perhaps a bit of good will - but that's not the situation Mrs May finds herself in.  Triggering Article 50 has started a process which she claims (correctly or not) cannot be reversed, and which can only be paused with the agreement of the other 27.

And then, what exactly is Mrs May ready to walk out of?  The Article 50 process, as well as tending inexorably to a defined end, allows for the production of a "framework for [the withdrawing country's] future relationship with the Union".  This framework might in the end be as much as the recent political agreement between Japan and the EU, perhaps leading to a full trade agreement in a couple of years time, or it might simply be a set of holding principles and arrangements to enter an interim or transition period which is then intended to produce a full trade deal.

Article 50's intended output is an agreement on "arrangements for [the withdrawing country's] withdrawal", which is why there's such emphasis on settling the accounts and establishing the rights of those who are based in a country other than their own.  Yet the only thing most of the media and - it seems - MPs seem to be concerned with is the trade deal or WTO question.

There's a time limit on Article 50 - the famous two years, of which less than one remains before the ratification process would have to start - but trade negotiations can go on as long as it takes for the deal to be signed.  Or abandoned.

There are many other deals which might be required, depending on how completely Mrs May intends to allow us to drift away.  Can we reconstruct a working relationship with Euratom, the REACH chemicals regime, the EMA medical regulator which we have led in while it was based in London?  To say nothing of the dozens of other decisions which must be addressed - on Europol, the European Arrest Warrant, cooperation on security using databases based on EU data protection regulations (which we are currently proposing to implement), but resting on a bed of law overseen by the ECJ.  Who is going to certify that UK aeroplanes are fit to fly?  And what legal and logistical arrangements will we make for planes, people and goods to land somewhere else?

Which of these perhaps dozens of deals is Mrs May telling us we can do without?  All of them?  Just the odd one that's a problem?  Would she countenance walking out of talks with Euratom and staying with the rest, or fall in with Balpa's reminder today that "UK airlines could find they have to stop flying...  And this would impact passengers long before March 2019 because airlines couldn't sell advance tickets and, frankly, would passengers risk buying them?" while kissing a trade deal goodbye?

Lastly, if there is to be no deal in any of these areas, where are the preparations?  Where are the compulsory purchase orders for vehicle handling areas around Dover, the building projects for customs checks along the Irish border, the recruitment and training programmes for border, customs, regulatory, home office and many other staff that would be required?

The books might tell us it's good tactics to show yourself willing to walk away, and to keep your cards close to your chest.  But not if the people on the other side of the table begin to wonder if there's anything written on your cards, and can't believe you'd be stupid enough to engage in the self-harm of "no deal".

I'd like to know what your party managers are briefing you about this - what are the lines to take - but I imagine those really are cards you'll keep close to your chest.  Even more than that, I'd like to know your own feelings about the "no deal" issue.  Can you reassure me that I'm overly concerned, but without the standard "letter from MP" language which won't reassure anyone?

These are our friends and partners, honest

In the wake of Theresa May's Florence speech I've heard another wave of arguments that "we should have guaranteed EU expats' rights from the start".  The Leave campaigns, being in no position to be held to account for it, were quite happy to make the "pledge", but government has been much more reticent from 24 June 2016 onwards.

May & co haven't gone as far as UKIP's Lord Pearson of Rannock, who suggested that expats should be used "as hostages in the negotiations" but May, then Home Secretary and leadership candidate, told us last July:  "I want to ensure that we are able to not just guarantee the positions of those people but guarantee the positions of British citizens in other member states"  but she didn't want to go further for fear of attracting a "surge" of migration from the EU in the run-up to actual withdrawal.

On Friday I heard Diane Abbott (Labour, Hackney North and Stoke Newington, majority 35,139) pushing the "do it now" line, and Penny Mordaunt (Conservative, Portsmouth North, majority 9,965) crowing that she'd been saying the same thing throughout the referendum campaign. And of both of them I ask:  what rights, and who gets them?

The rights of citizens of the EU while in another EU country are specified by a variety of EU directives and implemented by the member states to fit in with citizenship, residence and immigration policies which are otherwise up to each country.  There is no suitable status which could be granted under UK law other than EU citizen, which exists now but under Tory and Labour policy would be abolished.  May & co have had to invent a new "settled status", the terms of which are now (slowly) being thrashed out.

And who gets this status?  We don't know who's here now, and we won't know who's arrived in another week's time.  We could have required incomers to register - many other countries do - and we could have used the same rules to require EU expats who've been here for three months to "go home", but we chose not to, perhaps for good reason.

How many people we're talking about, and how to get to them, was a major part of the discussion when the Commons DExEU committee spoke to representatives of various think tanks in February.  Some of these people would be easy to find, was the message, others less so, but the fact remains that there are millions of them, and the Home Office will need a) lots more resources and b) to perform much better than it's famous for to deal with them.

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The subject of what rights expats should get is about the only area of the Article 50 negotiations where progress can be seen, as the two teams have put together a clunky table representing areas of agreement and disagreement after the third round of talks (there are 15 pages of this).

But then came Florence, and May took a question from an Italian journalist:

"As you said, 600,000 Italians now live in the UK.  You said that you want them to remain.  What is going to change for them – I guess something is going to change?"

and replied:

"We set out that for those EU citizens currently living in the UK who have made the UK their home, including those 600, 000 Italians who are in the UK, we want them to be able to stay and to have the same rights as they have at the moment."

This is discussed by Jonathan Portes, Professor of Economics and Public Policy at King's College London, in his blog.  The problem is that the government has "set out" no such thing.  The proposed settled status doesn't, for example, give an EU expat resident in the UK the continuing, automatic right to be joined by his or her family.

We are going to be told tomorrow that Mrs May "misspoke", that of course she didn't mean that, and by Wednesday the message will be that she didn't say it either.  These people couldn't organise a presentation to the press in a hotel room in Reading.

Persuading yourself is the first thing

It came as a surprise to some when the government white paper The United Kingdom’s exit from and new partnership with the European Union included the line "Whilst Parliament has remained sovereign throughout our membership of the EU, it has not always felt like that".

As the Independent reported in February 2017, this "completely contradicts a key argument for Brexit".  We are of course sovereign in that we can trigger article 50 of the Treaty on European Union and - if that's what the people the referendum dumped this thing on decide - just twiddle our thumbs and drop out.

While we are members, we have shared sovereignty in areas covered by the treaty.  We are part of the decision making process, through ministers of the UK government, a commissioner, civil servants and of course our elected members of the EU parliament. Over the most fundamental decisions we have a veto, but we have entered a collective process.

Brexit involves withdrawal from that shared sovereignty, "taking back control" by pulling back from that collective process, but also incorporating the vast majority of EU law into the UK (and eventually the devolved administrations') statute book.  This is because it's currently our law, and we'd cease to function without it.  I would lay a pointlessly large bet on a major part of it still being in place in 50 years time.

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During the election, as I noted in my blog post at the time, Jeremy Paxman asked Theresa May "When did  you change your mind on the biggest issue of the day?", referring obviously to Brexit, then "Are you trying to achieve something that you think is bad for us?", since she had been a less than ardent but occasionally visible campaigner to Remain.  (The wording of the questions is taken from notes, but I think it's fair.)

On 29 May she wouldn't say that she had changed her mind on Brexit, or that she actually believed in it now, only that she believed in "making a success of it".  She must have had a good think about that (or somebody must have had a word), because by 3 June the line was "You can only deliver Brexit if you believe in Brexit".

"You can only deliver Brexit if you believe in Brexit," says Theresa May pic.twitter.com/dDgK4plbkE

— The Telegraph (@Telegraph) 1 June 2017

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To wrap up this probably rather strange burrowing into parts of the mind of May I turn to the Florence speech of 22 September, in which she said "The strength of feeling that the British people have about this need for control and the direct accountability of their politicians is one reason why, throughout its membership, the United Kingdom has never totally felt at home being in the European Union".

That reminds me of her foreword to the white paper I began with, where she wrote:  "But one of the reasons that Britain’s democracy has been such a success for so many years is that the strength of our identity as one nation, the respect we show to one another as fellow citizens, and the importance we attach to our institutions means that when a vote has been held we all respect the result. The victors have the responsibility to act magnanimously. The losers have the responsibility to respect the legitimacy of the outcome. And the country comes together".

There's some sense and some truth in both passages. but they also both suggest an oversimplification, a detachment from the real world.  There are obviously people who have felt at home in the EU.  I bet there are more who hadn't given it much thought until they were put on the spot.  And we have negotiated our own relationship with it, as have Denmark and Ireland, and Sweden and probably every member state, whether it's a small part of a protocol (such as the "list of conventions and protocols to which Bulgaria and Romania accede upon accession") or a major reservation (like the UK's opt-out of the euro).

The country has not come together, other than in resignation ("Sod 'em, let them get on with it").  A significant minority feel Brexit as a personal attack, on themselves, their families, their rights and their view of their country.  And, at least in the unrepresentative echoings of Twitter I encounter anything but magnanimity from some "victors".

May's own party is not united.  Jacob Rees Mogg has expressed his opposition to the proposed transition period and Iain Duncan Smith seems likely to object very strongly when he discovers that his latest repetition of "we will no longer be subject to the EU’s laws or to its court [as of 29 March 2019]" is unlikely to be true.

And it really is pushing it for May to call on the "strength of feeling that the British people have about... direct accountability of... politicians".  This is the woman who wasted an extra two months on a supreme court hearing to prevent elected MPs having a say on the triggering of Article 50.  To say nothing of her Henry VIII complex.

I'm not persuaded.  Is she?

Multilateral relations, rules-based systems and international frameworks. Of a sort

May going into No 10 - from @PoliticalPics (I would have used his actual tweet if he let ordinary people access them)

Theresa May is in a cabinet meeting as I begin this, her aim to achieve unanimous agreement on the speech she will give in Florence tomorrow.  The story is that she practically stepped off the plane and into No 10, which means last night's supposed mini-summit with Boris Johnson over the Atlantic came to very little.  Adam Boulton on Sky reports that she told him she needed some sleep.

The speech is billed as an "open and generous offer" to "break the deadlock" in the Brexit negotiations, but it seems to be the wrong time - the September round of talks has had to be postponed until next week - and possibly the wrong place.

May took her "fair and serious" offer on EU citizens' rights to the EU Council in June, three days after the first round of talks had done little more than set up a few working groups and agree the timetable which May & co had refused to countenance until they screwed up an election.  Some EU leaders greeted it politely as "insufficient" and others as "at least it's something" but they basically told her it would have to wait until the July talks because when they told us the negotiations would be done by Barnier, not heads of state and government, they meant it.

Will choosing her own time and place be seen as a sign of strength or of not taking things seriously?

HR News

The Department for Exiting the EU has announced the renomination of the British judge to the Court of Justice of the EU (CJEU or ECJ, according to taste).  Christopher Vajda QC, who has done the job since 2012 after 30 years of practice in European Law, should encounter no difficulties as he goes through a scrutiny panel and approval of his appointment by the Member States.

That first nomination in 2012 was announced by the Foreign Office, but all relationships with the EU seem now to be handled by the bunch responsible for getting us out of it.  As the new announcement says, "While we continue to be a Member State, we will honour our rights and obligations, this includes nominating a judge to the Court of Justice".

Saboteurs department

Before she addressed the United Nations General Assembly (or at least a few of them) on her ideas of multilateral cooperation Theresa May spent a day in Canada, emerging with an agreement that "Canada's free trade deal with the European Union will form the basis for a swift transition to a post-Brexit trading relationship between Canada and the U.K."

A UK-Canada working group will be established to work on a "seamless" transition to a new trading relationship when the UK is legally able to agree one.

Note, as Justin Trudeau did, that the word "basis" means "starting point", not the "copy and paste" reported by some of the media.  In Trudeau's words:  "We will be able to move forward in a smooth transition that keeps the essence of CETA applicable to the U.K. in ways that respect the EU's requirements and rules".  Other CBC comment says this is "a shrunken ambition for those who campaigned for Brexit.  After all, breaking free of the EU was supposed to restore a golden age of free trade as countries rushed to renegotiate deals with a Britain free of Eurocratic interference.  The best now on offer, it seems, is to try to hang on to the deals Britain already has under the EU".

This is one of thousands of things we will have to keep an eye open for.

Stop press!

The cabinet meeting hasn't finished yet.

The rule of law, British style

[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.

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:

1. 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)
2. 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.

While Boris Johnson's lies about £350m got most people's juices flowing, I was intrigued but this claim in his Brexit "essay" pic.twitter.com/Xw5fG9lT0T

— Chris Giles (@ChrisGiles_) September 18, 2017

Labouring under a preconception

The third round of Brexit talks begins on Monday morning.  Those cruel EU bureaucrats, forcing David Davis & co to work on a Great British bank holiday!  Perhaps the Brexit Bulldog should have thought of that when he decided to forego the "row of the summer" at the opening session in June, and meekly went along with the EU27's proposed timetable.

As far as we know the topics for discussion are the same as last time - citizens' rights, a formula for a financial settlement, the Irish border and "other separation issues".  The Sun tells us Davis is going to be tough (Wham!) and might even refuse to attend the joint press conference on Thursday (Kapow!) but one way or another we should see by the end of August whether any recognisable progress has been made.

Sunday morning saw Labour's latest Brexit policy outlined in the Observer, "agreed after a week of intense discussion at the top of the party" and "signed off by the leadership and key members of the shadow cabinet on Thursday".

The new policy is widely presented as a softer Brexit than the government's current plans, though Labour has promised that much since it refused to consider the idiocy of May's "no deal" option.  More significant is that it seems to be softer (and more coherent, until we hear shadow ministers on Monday disagreeing about what it actually means) than Labour has presented before.

“Labour would seek a transitional deal that maintains the same basic terms that we currently enjoy with the EU,"  Labour's shadow Brexit minister Keir Starmer informed the paper.  "That means we would seek to remain in a customs union with the EU and within the single market during this period. It means we would abide by the common rules of both.”

Further, "Labour is flexible as to whether the benefits of the single market are best retained by negotiating a new single market relationship or by working up from a bespoke trade deal".  And the party holds out the prospect of this "some kind of single market and some kind of customs union" relationship indefinitely if Labour could negotiate "a special deal on immigration and changes to freedom of movement rules".

But what is this "promising", "seeking" and "negotiating"?  The one thing Tories in government are supposed to be good at is staying in government.  Can even this weakened Conservative administration manage to grasp defeat from the jaws of Pyrrhic victory by falling apart over Europe again and letting in a Corbyn government?  (It would have to be a very weak minority government, since yet another election would ensure that any eventual Labour "master negotiator" would not have the time to agree anything other than the size of the parachute to avoid bailing out without a deal.)

Labour, we are told, will try to attract enough Tory rebels to back them on softening Brexit.  They'd better not enlist Laura Pidcock as an ambassador in trying to construct that majority.  But how do they hope to do it anyway?  May & co have no intention of allowing a substantive (i.e. effective) vote on anything to do with the negotiations.

There'll be the EU Withdrawal Bill, and that's your lot.  Any amendment trying to shape "a customs union" will be ruled out of order, and a vote on an opposition option (when the government finally gets round to allocating a few days for them) has zero power.  Starmer might achieve a moral victory but it would have no effect on the negotiations.  And don't forget, as I reported on Wednesday,  MPs are hardly in the Commons for two weeks between now and the October EU Council which has to decide whether negotiations can go on to talk about future UK-EU relationships.

Polls and the British Election Study tell us that, whatever its currently declared policy, Labour is seen, especially by its new, young supporters, as the party of soft Brexit or no Brexit.  I still haven't seen an explanation of the "compositing error" which invalidated this motion at last year's Labour conference:

"[Conference] recognises that many of those who voted to leave the EU were expressing dissatisfaction with EU or national policy and were voting for change, but believes that unless the final settlement proves to be acceptable then the option of retaining EU membership should be retained.  The final settlement should therefore be subject to approval, through parliament and potentially through a general election, or a referendum."

The motion was passed unanimously, then voided.  Let's see what happens this September.

So... "let me be absolutely clear".  Labour will prioritise jobs (which any kind of Brexit will hit) and working conditions (which are entirely a matter for the UK parliament under the EU Withdrawal Bill) in negotiations it has no part in.  So that's OK.

Corbyn & co seem to be pushing us into a position where we accept EU legislation without representation.  The last thing our MEPs will do at this rate will be to approve our exit from the EU.  Nigel Farage will have more power over this than any Westminster MP.  Right up to the end.

How to prepare for important negotiations... badly

Theresa May's house of cards

The government whose manifestos have proclaimed that an annual net immigration figure below 100,000 is a pledge (2010), an ambition (2015) and an objective (2017) is beginning to admit that it has based policy on bad or non-existent data.

Amid fears of huge numbers of foreign students staying on after college and fading into the British economy, Theresa May as home secretary "closed down hundreds of bogus colleges" and tightened the rules on student visas.  Some of the targeted students and colleges were treated unjustifiably (Disaster for Theresa May as legal ruling brings student deportations to a halt) and the UK was reported to be "losing the economic argument over international students; that priceless political soft power, which for generations has been one of the greatest assets arising from British education... trashed by a Conservative government that has been making decisions based on spurious evidence".

But at least the numbers were right.  Weren't they?  Until the Telegraph (notorious friend of immigrants) reported that "the Government will reveal on Thursday that new border checks  introduced last year found 97 percent of international students - one of the biggest groups of immigrants - left after finishing their studies".  Doubts over these numbers, and others based on airport survey figures, have been raised for years, often by such "pro-immigration" commentators as Jonathan Portes, whose comment on the following quote from May is "We should be clear - at the time Theresa May said this, she, and everybody else who understood [the] issue, knew it was nonsense".

Theresa May, Oct 2015: "The fact is too many students are not returning home as soon as their visas run out. Students, yes; overstayers, no" pic.twitter.com/ZJw2bjINmM

— Stewart Wood (@StewartWood) August 24, 2017

As the Office for National Statistics reported another fall in net immigration - "These results are similar to 2016 estimates (published in May 2017) and indicate that the EU referendum result may be influencing people’s decision to migrate into and out of the UK, particularly EU and EU8 citizens. It is too early to tell if this is an indication of a long-term trend" - now home secretary Amber Rudd has thought to ask the government's Migration Advisory Council "to examine the effect that both EU and non-EU students have on the labour market and economy while in the UK and [to] report back next September".

The ONS also reported on the work they've been doing to generate better numbers on international student migration, the first fruits of which we are seeing now.

Oh yes, Thursday was also the day that the first results under a new maths GCSE marking standard were announced.

We're leaving now, but save this seat for me 

Thursday's publication for the Brexit negotiations was a "future partnership paper" (not a position paper, not even as definite as that).  It seemed to come with none of the media management that's been normal so far in August, which made me think it might be expected to annoy the Brexiters among us.

A couple of weeks ago the government announced that it would be passing a new data protection law.  The Telegraph was refreshingly honest (if optimistic) about it:

"Why are we doing this?
Next May, the GDPR, a new set of cross-EU data rules, comes into force. The UK’s existing data rules must be updated to match them so they are equivalent to the EU's laws after Brexit. This is to ensure that organisations can freely send data back and forth with Europe after we leave."

The Mail seems to have had the same memo.  Their main interest was (quite reasonably) the consumer protection side of things, but they did have the EU angle:

"The legislation will bring the European Union’s General Data Protection Regulation (GDPR) into domestic law.  This will help Britain prepare for Brexit because it will mean the systems are aligned when the UK leaves the bloc."

This law would cement the right to be forgotten, even to have everything embarrassing you posted online before the age of 18 to be deleted (but not those pictures from your 47th birthday party at the Rose and Crown...).  The government, and spokesperson Little Matty Hancock (pictured), didn't shout very loudly about its place in the EU scheme of things (a member like the UK has to have implemented the General Data Protection Regulation by May next year) but somehow the papers got the idea that it was to prepare for Brexit.

And then on Thursday came the "future partnership paper" which might one day feed in to negotiations on a future UK-EU relationship.  Steve Peers, Professor of EU, Human Rights and World Trade Law at Essex University, runs through it in the tweet thread below, but the overall impression from commentators was that May & co intended that the UK would have a framework of data protection regulation on "exit day" which is perfectly aligned with the EU's regime, that we would keep it aligned for ever, and that we rather expect to be consulted on any changes the EU might want to make to these things in future.

1/ Time for the daily thread on the government's latest Brexit paper. If it's Thursday, it must be data protection (links below). https://t.co/qhPLTm1nH7

— Steve Peers (@StevePeers) August 24, 2017

A phrase from my student days, which has been hovering at the back of my mind for a while now, can no longer be denied.  These proposals are "on the hubris side of chutzpah", where hubris is "extreme or foolish pride or dangerous overconfidence" and the favoured definition of the Yiddish word involves the man who kills his parents, then throws himself on the mercy of the court because he's an orphan.

Brexit talks resume next Monday

There's some indication that Brussels is discussing Westminster's latest output.  But also that they're having a good giggle.  And UK civil servants are playing a straight bat at best.

UK govt Brexit euphemism of the day.
Reporter: Do you see any upsides in [x policy field]?
"We are not looking for any additionality."

— Matthew Holehouse (@mattholehouse) August 24, 2017

Take back control... of the government

What are our MPs doing?

With the Commons still not sitting, some of our elected representatives could think of nothing more important than the "last bongs" of Big Ben, gathering outside Parliament to shed a tear and perhaps start a protest group.

Stephen Pound MP - lead protester

Refurbishment of the Elizabeth Tower, which houses the clock and bells, is already "delayed" and "cannot be delayed" further until the equally late restoration and refurbishment programme for the whole Palace of Westminster begins, according to the FAQ paper published by the parliamentary authorities.

Some MPs are still muttering about having to leave the asbestos-ridden and vermin-infested palace when the real work starts.  For now a sudden attachment to the bongs is a symbolic statement of just the kind of ridiculous attitude to their jobs that contributes to their low public status.  And it's so important to them that they've demanded a rethink:

"UPDATE:
When Parliament returns, in light of concerns expressed by a number of MPs, the House of Commons Commission will consider the length of time that the bells will fall silent. Of course, any discussion will focus on undertaking the work efficiently, protecting the health and safety of those involved, and seeking to ensure resumption of normal service as soon as is practicable given those requirements."

What is our government doing?

In advance of round three of the Brexit talks which start on bank holiday Monday, the answer seems to be "mostly media management", as the Financial Times legal commentator observes.

Official Brexit documents should just be published to the public as and when available.  No privileged prior 'embargoed' access to media.

— David Allen Green (@davidallengreen) August 22, 2017

A sequence of documents (specific position papers to inform the withdrawal negotiations and more nebulous "future partnership papers" to feed debate on later options) has emerged over the last few days.  Each is embargoed - barred from full discussion before the overnight and morning news media have reported the government press statements and interviewed the supplied ministers.  The ministers disappear when the actual document is "released".  And most of the media have simply played along.

This summer has been a frustrating time for supporters of parliamentary democracy against executive power.

Round 1 of the Brexit talks began when we had no operational government.  MPs had just about finished taking their oaths of office for the parliament elected on 8 June when David Davis and his team travelled to Brussels for the first formal session with Michel Barnier.  But the queen's speech, setting out May's approach for her somewhat diminished government only came two days later, and the deal with the DUP, which guaranteed May's majority (for now at least) at the beginning of the following week.

Then after four short weeks of minor legislation and general debates they were off on holiday, which is where we are now.  There are no Commons select committees (though the chairs have been chosen) to keep an eye on what ministers do.  The Brexit committee (still to be chaired by Hilary Benn) took a long time to come together in the last parliament and I expect it to be among the last in this.  Couple that with the fact that David Davis doesn't intend to give evidence to the House of Lords EU select committee until October, and he basically has a free ride.

After a brief return, during which they'll spend a couple of days on the monstrous (in scale and constitutional impact) EU Withdrawal Bill, they're all off for the conference recess, returning on the day the fifth round of Brexit talks begin and less than two four-day weeks before May toddles off to Brussels in the hope that "sufficient progress" has been made by then to get the EU Council to agree to instruct Barnier to talk trade.

Great Brexit Bake Off 

After all the cake symbolism of recent months, from Boris Johnson's original "have your cake and eat it" model of Brexit to today's "Get yourself a cake, eat it, and see if it's still there" from Poland's former foreign minister Radoslaw Sikorsky on Radio 4's World At One, we have a contribution from Ireland:

Quote of Sunday - Irish MEP Mairead McGuinness: UK's Brexit proposal for Northern Ireland "is an attempt to have its cake and eat ours".

— Tom Newton Dunn (@tnewtondunn) August 20, 2017