Westministenders. Whilst Boris makes more daft promises, a50 hits the courts. Poo and Fan Time.

[RedToothBrush]

There is no plan. Or is there?

We’ve talked on the last thread about how it’s being set up as ‘Hard Brexit’ or ‘Unilateral Continuity’ (dubbed here as the ‘Off The Top Of The Cliff Plan’) by the hard line Brexiteers either as the plan or the means by which to force a softer deal with the EU (which perhaps seems to be preferred choice of Mrs May herself).

The last few weeks have been plagued by comments by various members of the Cabinet over what Brexit means – comments which are frankly bollocks and show an outstanding world class level of ignorance – and have led to us being laughed at (Verhofstadt head of EU negotiations), facing outright anger and demands for compensation (Japan) and pure bewilderment (USA unless your name is Donald).

And they have been repeated contradicted and undermined by May in response with, the response that this is not government policy and she will not be giving a running commentary.

Thus making the UK look like the world’s leading political basket case whilst at the same time being ‘an excellent place to make new investment in’. Obviously. As long as you prattle the words ‘Free Trade’ a lot a bright new world of opportunity will open up. Just look at the Japanese position on that.

-------------------

But really the reason why ‘Brexit means Brexit’ is still so vague, could be a legal one.

The next step in the Battle for Brexit, is in the courts and over whether the Royal Prerogative can be used to trigger a50 or whether May will have to first pass it through Parliament before she can notify the EU that we are leaving. This may prove to be a big hurdle for the government and one they have a real chance of losing particular the NI case.

The two big a50 challenges (though there are others) come from a cross party NI challenge supported by the NI Attorney General in Belfast and a crowdfunded ‘People’s challenge’ in the English courts. The NI challenge is characterised by a loss of rights and the international agreement that is the Good Friday Agreement, whilst the English challenge includes this as well as other acquired rights and concerns over the devolved assemblies and the Act of Union.

The government’s defence to this, which they sought a bizarre court order to protect and keep secret which was later overturned, is that ministers have better expertise to implement the start of Brexit than the courts (see Johnson, Fox and Davies), that it does not fall under parliament’s jurisdiction and that whilst the Royal Prerogative can’t be used to remove rights, because ‘Brexit means Brexit’ is so vague it’s impossible to challenge use of the Royal Prerogative because we don’t know precisely which rights will be affected!

The case for the government is also being presented by a relatively inexperienced lawyer.

However, some very respected constitutional law academics think the core of the government’s argument is sound, though this might be lost in the ridiculous other defences, the government have put along it. Their lead of the defence is a lawyer, who has little public law experience too.
The government need to win both these big cases, to ensure that they can use the Royal Prerogative. Don’t forget the likelihood of appeals regardless of the first ruling too.

-------------------

Into the political void the Irish PM has stepped in to led discussions into the future of the island, the Japanese have issued a Brexit ‘wish list, the Spanish have staked a claim to co-sovereignty of Gibraltar (something rejected overwhelming in a referendum in 2002) and threatened to block negotiations otherwise, a French Presidential hopeless has kindly offered us another referendum, the USA have reiterated that they won’t do a deal with us until our WTO status is in good order and the Italians have said ‘No chance!’. This is the UK taking back control folks.

At home Ken Clarke has said that May needs to get her act together, George Osborne has said Brexit did not mean hard Brexit and Dominic Grieve has urged her not to sleepwalk into a hard Brexit. The Tory conference looks set for all out Tory War.

-------------------

In a side issue the pro-Brexit newspaper, The Sun has come out in an editorial telling the Government to have the courage to pull the plug on the child sex abuse inquiry which was set up by Theresa May when she was Home Secretary, calling it a ‘farce’ and saying its scope was too wide and unmanageable… It might seem unrelated, but it calls May’s judgment and handling of large issues into question. If she allows it to plow on, it could turn into an even bigger farce and embarrassment, yet if she U-Turns it could make her look weak and have the potential to do the same over Brexit. She’ll struggle to throw Amber Rudd under the bus over the matter, because most of this happened on her watch. This will come back to haunt May. It also starts to question Murdoch’s position and opinion of May. Is this a withdrawal of support for her?

-------------------

In summary, the next six to eight weeks are crucial to what Brexit looks like. It’s time for the shit to start hitting the fan. Brace yourselves for next couple of weeks. Get stocked up on the gin

We are not being led by UK politics anymore nor even internal squabbles really but the courts and outside forces which are shaping what is possible and achievable rather than what we want.

All talk is of a hard Brexit. It might well prove to be the case yet. We aren’t there yet though. There could be some more twists and turns yet.

An article 50 defeat in the courts for the government throws it back to Parliamentary scrutiny, taking up time and potentially watering down demands. It could even produce the result that a50 is deemed not fit for purpose and we have to go back to the EU begging for a new treaty for a way out (which technically they would have to do as they legally have to recognise democratic votes). This might be our only way to prevent a chaotic exit from the EU. This might led not to an exit though, but a two tier EU – a proposal suggested by, errrr Guy Verhofstadt, Head of EU Negotiations – and is very unlikely to prove to be the quick exit by 2020 that Kippers so desperately want. And a second referendum on the deal reached, in order to prove it was the will of the people. It could also prove a threat to the current government and raise the realistic spectre of a rebellion and a vote of no confidence and in turn a General Election.

Of course the EU themselves have a couple of their own headaches at the polls to survive too, whilst the German banks start to get the jitters. And there is the small matter of America having their own Brain Fart in the coming months, which could have a big impact on what happens next.

Yep, this is taking back control folks. What do you mean it feels more like a game of roulette? So might even say Russian roulette.

Wwwwoooo Brexit. Austerity is over.

Isn't it?

Faisal Islam ‏@faisalislam
Hammonds tribute to @George_Osborne fiscal credibility gets applause in the hall
"Many businesses that trade with the EU are uncertain about the path ahead" says Chancellor "I understand their concerns".
Chancellor: "the British people did not vote on June 23rd to become poorer, or less secure".
Chancellor: many of the recent data have been better than expected... clearest demonstration of the underlying strength of our economy"
Chancellor: "we will no longer target a surplus at end of Parliament. But make no mistake. The task of fiscal consolidation must continue"
Hammond: "after Brexit, we go on attracting brightest/best…highest skilled…entrepreneurs, scientists, engineers from around the world.
Ch "must carefully maintain conditions ...Including the ability to attract the brightest and best to work here in our high-tech industries"
HAmmond gives big shout out to Northern Powerhouse - but puts 'Midlands engine" on same footing ahead of Mayoral election...

Kamal Ahmed ‏@bbckamal
^"No ifs, no buts, we are leaving the European Union." @PHammondMP
"But we did not vote to become poorer. We need to protect jobs and living standards." @PHammondMP^
"Economy is fundamentally robust." Name checks @George_Osborne several times for "pulling UK back from precipice" @PHammondMP
^Fiscal credibility put at centre of @PHammondMP speech
Hammond looking back, revisiting austerity gov. "Since 2010 Britain has grown faster than any economy in the G7" @PHammondMP^
Gov will negotiate "best possible access to European markets for manufacturing & services industries." Access not membership @PHammondMP
"As Conservatives, we know that no one owes us a living; that a country has to live within its means." @PHammondMP
"Piling up debt for our children and our grandchildren to pay off is not only unsustainable, it’s unfair." @PHammondMP
"The task of fiscal consolidation must continue." @PHammondMP
"The British people elected us on a promise to restore fiscal discipline.And that is exactly what we are going to do." @PHammondMP^
"Long-term sustainable growth requires us to raise our national productivity." @PHammondMP
"If we raised our productivity by just 1% every year, within a decade we would add £250 billion to the size of our economy." @PHammondMP

Meanwhile Liam Fox sets Hammond the challenge to give a target for getting rid of the deficientwww.telegraph.co.uk/news/2016/10/02/liam-fox-challenges-philip-hammond-to-issue-new-deadline-for-eli/

This all sounds like, we are leaving the single market but still want access to it. We will continue with austerity. You will work harder. Oh and watch your saving granddad.

Hammond: "after Brexit, we go on attracting brightest/best…highest skilled…entrepreneurs, scientists, engineers from around the world.

How does he envisage that happening? Given that they are shutting the door on EU science and engineering collaborations?

Entrepeneurs - will he expect people like Dyson to bring manufacturing back to the country?

www.ft.com/content/2132989b-0c66-344f-84a8-b24d8d6636b6
David Allen Green FT article

Quote:
But there is something to be concerned about in this announcement. The government is seeking to have what it calls “flexibility” in being able to amend or repeal primary legislation — Acts of Parliament — by statutory instruments. These are through the so-called “Henry VIII clauses” that enable the executive to make huge legal changes with little or no parliamentary scrutiny. Statutory instruments, a form of secondary legislation, are devices by which the government can legislate without troubling the legislature. Such legal means have been roundly criticised by judges such as Lord Judge, the former Lord Chief Justice.

So, under the cloak of the referendum result there will be a power grab by Whitehall from Westminster. Those rejoicing at “taking back control” should be careful what they wish for. The executive is, as usual, wanting to take control away from parliament.

And
The second thing is perhaps more important for Brexit. Mrs May announced a deadline for invoking Article 50. This will be done, she said, before the end of March next year. Unless there is some agreement to extend time, this would mean that the UK would cease to be a member of the EU by 2019. For many, this meant Brexit suddenly looked real. There are now actual dates.

But again, there is little new about this. Only a couple of weeks ago, Mrs May told the European council president Donald Tusk that the Article 50 notification would be sent in January or February next year. If anything, yesterday’s announcement shows there has been slippage of a month in just a fortnight.

blogs.lse.ac.uk/politicsandpolicy/not-being-smart-about-article-50-the-strategic-considerations-of-an-early-2017-notification/?utm_content=buffer52827&utm_medium=social&utm_source=twitter.com&utm_campaign=buffer
LSE article about the timing of Article 50.
It suggests an early 2017 timetimble dramatically increases the odds of a hard and also bad Brexit.

Dirty tricks by Downing Street. Pity that Ken Clarke is getting on a bit and due to stand down.

How does he envisage that happening? Given that they are shutting the door on EU science and engineering collaborations?

It's nuts. Companies like my employer are already moving R&D offshore because we can't recruit - and that's despite having many Europeans working for us.

A few years ago I envisaged my teenagers (both of whom are likely to study science) returning to the UK for uni. Now I wouldn't send them - and even if I tried to, they wouldn't go. They think of the UK as backward and isolationist :-/

Tory rebels:
Conservative Group for Europe
"The Conservative Group for Europe regrets the outcome of the recent referendum on British membership of the European Union. It notes that the Leave campaign made a number of seriously inaccurate claims which are very likely to have affected the outcome and believes that the British national interest would have been best served by continued membership. It notes that both Britain and the Conservative Party have been deeply divided by the outcome."

Hear, hear!

Delurking to say thanks for putting me on to that CSJ report (which has an error in the first paragraph of the foreword: effect/affect). Reading is making my blood pressure go right up though.

Wee blog by a friend on mine (met her via MN )

https://mewsingoutloud.wordpress.com/2016/10/03/conference-time/

The tweet from the DTI about jam tomorrow literally export opportunities for jam producers into France ; I suppose it'll go with the everlasting cake

Sunny Hundal ‏@sunny_hundal 1h1 hour ago
Hah, Andrea Leadsom thinks the UK is going to sell naan-bread to India. Easier to sell ice to eskimos #delusional #cpc16

oh my.

Cleggy has written a piece for the London Evening Standard saying that the Conservatives are now no longer the party of business.
www.standard.co.uk/comment/comment/nick-clegg-brexit-is-proving-the-tories-are-no-longer-the-party-of-business-a3359791.html

Leaving the Single Market, might actually mean he has a good point. A lot of moderate Conservatives will be very unhappy right now. I'm starting to wonder if the Tories have unwittingly just become UKIP? And just how much into the realms of fascism have we strayed?

Jo Maugham QC (one of the lawyers involved with the 'people's' a50 challenge) has written this today:www.prospectmagazine.co.uk/politics/the-true-meaning-great-repeal-act-brexit-eu-referendum-theresa-may
His point is that, "But to deliver her Great Repeal Act Theresa May will have to persuade MPs to support it. To vote for an Act they cannot know the effect of."
That's a pretty big task.

Not only that but the Lords will be able to completely reject it as its not subject to the normal rules as its not in the Tory Manifesto.
So she will have to persuade MPs to support this leap into the unknown—and Peers too. If the Act takes the shape I understand it to, I believe the Salisbury Convention, which prevents the House of Lords from withholding consent to a measure promised in an election Manifesto, would not apply. And, although they are not a representative set, the members of the House of Lords I have spoken to are adamant that such an Act would not pass the Upper Chamber.

Here is another document:
www.biicl.org/documents/1284_briefing_paper_-_parl_and_rol_in_brexit.pdf?showdocument=1
It a briefing paper for the Bingham Centre for The Rule of Law on the subject of Parliament and Brexit.

Its recommendations are
1: Parliament and its committees can apply rule of law standards when scrutinising legislation to promote fidelity to rule of law principles.
2: Parliament should scrutinise particularly carefully Brexit-related reforms in antidiscrimination, freedom of information, and human rights.
3: Parliament should ensure that Henry VIII clauses are used sparingly and only in legislation drafted with sufficient detail for legal certainty.

4: Committees should explicitly refer to the rule of law in the terms of reference for inquiries on aspects of the Brexit law reform process as and when appropriate.
5: Parliament should have greater resources to safeguard the rule of law—e.g. the rule of law expertise of the Scrutiny Unit could be enhanced through training or additional staff to provide support to House of Commons select committees on rule of law questions as needed.
6: All parliamentary committee members should have an opportunity to participate in a closed informal discussion of rule of law principles in the context of Brexit.
7: UK Parliament and Government must engage with devolved institutions, involving them in decisions on international negotiations and Brexit law reform.

Indeed the document goes on to state in its intro no uncertain terms:
While there were many and varied reasons that motivated the vote to leave the EU, it is common ground that a core and dominating theme was the wish to restore power over law-making to the UK Parliament, thus putting control over UK law in the hands of those democratically elected and accountable to the people. Consistent with that goal, it is crucial that UK constitutional principles are protected, including the rule of law. The rule of law is not an abstract principle, rather, it is a practical concept by which proposed laws should be assessed. It is not the sole preserve of lawyers and courts, but a constitutional principle that Parliament has a role in safeguarding. As the soverign law-making principle in the UK, Parliament has a vital role to play in applying the rule of law as part of its scruntiny of legislation and Government.

and then later

The rule of law is a recognised UK constitutional principle that must be respected and safeguarded in the processes and outcomes of the international negotiations and Brexit law reform process, and Parliament will play a key role in this context.

also

The rule of law also includes principles concerning the exercise of legal power, particularly the exercise of power by the Executive:
a) Questions of legal right and liability should ordinarily be resolved by application of the law and not the exercise of discretion.
b) Ministers and public officers at all levels must exercise the powers conferred on them in good faith, for the purpose for which the powers were conferred, without exceeding the limits of such powers and not unreasonably.

and

These rule of law principles are intrinsically related to the UK constitutional principles of the separation of powers and the sovereignty of Parliament. Parliament makes laws that are implemented by the Execitive, and those laws define the scope and limits of power conferred on the Executive. Poorly defined Henry VIII clauses in legislation that is drafted in skeletal form undermine these principles, especially the sovereignty of Parliament, by enabling the Executive to make laws that define the scope and limits of the Executive's power. A Henry VIII clause enables primary legislation to be amended or repealed by delegated legislation with or without further parliamentary scrutiny.

In rule of law terms, unnecessarily broad Henry VIII clauses in skeletal legislation threaten these two rule of law principles because such clauses give the Executive almost absolute discretion on questions of legal right and liability rather than defining in law the criteria for resolving the questions. Overly broad Henry VIII clauses threaten the latter rule of law principle by conferring power without limits on the Executive that can be exercised unreasonably since the power may be established and defined by the Executive itself. This problem is compounded by the trend towards skeletal drafting of primary legislation that lacks substance and detail for the delegated legislation that it authorises.

How does that, exactly fit with the Royal Prerog and a50 and this 'Great' Repeal Act?

Well, I think I'm with Jo Maugham in saying that the 'Great' Repeal Act is potentially unpassable by Parliament. Both MPs and Lords duty bound not to give May a blank cheque regardless of whether they are for or against Brexit.

Not only that, but May has made the point of effectively attacking the rule of law in her speech about a50 challenges being a threat to democracy.

In pursuit of an ideology she is dispensing with democratic mechanisms - or trying to. This is, indeed, fascism.

Fascists believe that liberal democracy is obsolete, and they regard the complete mobilization of society under a totalitarian one-party state as necessary to prepare a nation for armed conflict and to respond effectively to economic difficulties. Such a state is led by a strong leader—such as a dictator and a martial government composed of the members of the governing fascist party—to forge national unity and maintain a stable and orderly society

Oh Shit.

www.ft.com/content/7b78f276-8940-11e6-8cb7-e7ada1d123b1
Theresa May walks into a Brexit trap

The announcement of the decision about when the UK will trigger Article 50 — the process by which Britain gives formal notice that it intends to leave the EU — was made in a statesmanlike fashion. But the actual content of the decision is reckless and driven by politics, rather than Britain’s national interest.

Once Mrs May triggers Article 50, she has precisely two years to negotiate a new deal with the EU. Senior civil servants have told the prime minister that it is highly unlikely that the UK will be able to negotiate both the terms of its divorce and a new trade deal with the EU within the two-year deadline. As a result, they warned the prime minister that she must have assurances on what an interim trade agreement with the EU would look like in the long period between the UK leaving the bloc and a definitive new deal being put into place.

Mrs May has chosen to ignore this advice. In doing so, she has knowingly placed Britain at a massive disadvantage in the forthcoming negotiations.

More good news, eh?

FUKD.

We certainly need to be careful that areas which should require an Act of Parliament may be able to be changed just by regulations.

I am imagining that all our law which is based on EU law (vast rafts of it, possibly most of it) will continue due to the new Act. It will then be capable of repeal later by statutory instrument or Act of parliament. That is the only way to deal with Brexit as there is too much law to look at all EU law and decide whether to keep it. There just is not time within 2 years to do that.

I gave some law courses in Nigreia in the last few years and it wa sfairly similar - they had Engilsh common law which the British had im[posed on them when we owned the country so basics were very similar but since then the UK had had things like employment protection rules, data protection laws etc so in those areas the differences were seen. Now once we have left the EU we may well decide to keep much of our law aligned to the EU but we may not in all areas so it will be very complicated and great news for lawyers of course....

If you like that one TheBathroomSink, you'll love this one:

www.buzzfeed.com/jimwaterson/fart-in-a-jar-and-sell-it-at-twice-the-price?utm_term=.lgv0V8Q4l#.osxy52XRw
Environment secretary Andrea Leadsom used her speech at the Conservative party conference to praise a Dorset-based business which is selling bottles of countryside air to wealthy Chinese customers for £80, holding it up as a successful example of Britain’s rural economy.

I think any idea that May was ever a sincere Remainer has gone down the plug hole.

Clegg's revelation on her private view on FOM, and the fact she was prepared to go as far as to massage the figures, indicated a Brexiteer mindset.

She also said at one point - roughly - that she couldn't pretend that Brexit would be a disaster, it wouldn't.

I think she was on the fence not just strategically but genuinely.

She supported Remain because it was more practical to implement, and a better bet for her career.

I think she got the top job because the Brexit Tories knew the true extent of her Euro-scepticism.

She could easily have taken the line that Dominic Cummings took after the vote - that half the country voted to Remain and that needed to be honoured as well as the wish to Leave. (Not that I think he was sincere in that I think that faced with reality he saw hard Brexit would be a disaster).

Even if she has some cunning (implausible) plan to hatch a soft Brexit out of hard Brexitspeak. She and the 3 loons have already pushed the EU into a harder line than they started, and the chances of that are receding by the day.

RedToothbrush the House of Lords can't completely reject anything. They can delay it for a couple of years at the most. See the Parliament Acts and the Jackson litigation.

Fair enough.

It could effectively mean that in the end though, politically.

Red - I did see that one. What a glorious opportunity to deepen our FUKD status we missed when she blew up her own leadership bid...

Also:
Arj Singh ‏@singharj 3m3 minutes ago
Rees Mogg tries not to sound too posh by talking about tariffs on claret rather than champagne. Redwood: "claret's posh, red wine Jacob"

Red one can only hope so. Unfortunately the creation of new peers is also in the realm of the prerogative.

Watching newsnight tonight I couldn't help thinking that all this talk about the people having spoken loud and clear and the government having to respect the democratic vote, serves to cover their backs when it all goes tits up.... "we respected democracy too much to go against the will of the people, even though we knew it was suicide" in TM's memoirs..

"And just how much into the realms of fascism have we strayed?"

Quite far, I suspect, especially with that piece by David Allen Green quoted by Red:
'The government is seeking to have what it calls “flexibility” in being able to amend or repeal primary legislation — Acts of Parliament — by statutory instruments. These are through the so-called “Henry VIII clauses” that enable the executive to make huge legal changes with little or no parliamentary scrutiny. Statutory instruments, a form of secondary legislation, are devices by which the government can legislate without troubling the legislature. Such legal means have been roundly criticised by judges such as Lord Judge, the former Lord Chief Justice.

So, under the cloak of the referendum result there will be a power grab by Whitehall from Westminster. Those rejoicing at “taking back control” should be careful what they wish for. The executive is, as usual, wanting to take control away from parliament.'

Revolution always comes from the Right, and this one has been coming since Margaret Thatcher became PM.

The 27 will take a hard, united line against UK in negotiations. Johnson thinks freedom of movement and single market access have nothing to do with each other. Wolfgang Schauble disagrees and offers to send him EU treaties to help him understand.
www.cer.org.uk/node/5486/

I am a Remainer but despite that I believe not exiting the EU after the referendum would have been bad for democracy, our constituition and the rule of law and I don't expect the Art50 legal challenge to succeed.

However I don't want to see important new primary legislation coming through by way of undebated statutory instruments.

An Act which ways existing UK regulations based on EU law will continue to be valid is perfectly fine - in fact if we don't have that it would be chaos in all kinds of sectors. We have to have it. However we should build safeguards into it eg if we have the general great Act to ensure the data protection regulation in force 2018 continues in force after a 2019 Brexit that is all well and good. If the state then decided later to abolish all data protection law that would be such a bit change I would want that to go through Parliament. The risk depending on the wording of the Act is that that may not then be essential.

However in principle abolishing market interfering statutes and reverting to English common law is not necessarily a bad thing. The devil will be in the detail of the wording.

Spain now wants the UK to pay for healthcare for UK citizens living there. (They do already to some extent, it has to be said.)

Hmm, will we see an influx of pensioners?

I don't expect the Art50 legal challenge to succeed. I thought that this challenge was more to do with it being debated in Parliament? Given that we used to pride ourselves on having a Parliamentary democracy, I cant' see any reason why a debate would clash with democracy. It might force the Govt to flesh out the terms they will be seeking. Which they may not get, of course.

I am not speaking of the N Ireland challenges - I think they may well be a different matter. But again, not against democracy, but very much pro democracy. The N Irish have said clearly that they want to Remain in the EU, and TM's comments so far, have been to the effect 'tough sh*t', NI'. Where was the democracy in that?

However in principle abolishing market interfering statutes and reverting to English common law is not necessarily a bad thing.

....and what is supposed to happen in Scotland?

Me2017, are you aware that "common law" refers to law made by the courts? How do you propose that a 200-page, highly technical EU regulation be replaced by a series of court decision? The courts' function is to interpret the law, not to make it, especially where they have no expertise.