Westminstenders: Showdown

[RedToothBrush]

Big week ahead.

Johnson has until Tuesday Afternoon to get his shit together for the EU.

He thinks it can be down, but still lots to do in that time.

This week we have the Queen's Speech too, which is going to be misused as a party political broadcast.

Remember if the government can't pass the QS, there's a crisis that gets generated as a direct result. Sticking in proposals that any liberal or leftie will struggle with, is deliberately provoking a crisis of that nature. A proposal of that type would have to be anti democratic in nature, like... Ermmm... Voter ID. Hell, well what do you know.

Johnson is still after his election because as it stands he's a passenger stuck in the runaway train of his own creation.

Talk of a deal breakthrough is still overstated too. The DUP and many of the usual ERG suspects have poured water on the idea. And many on the opposition benches are pushing hard on a confirmary ref being needed for a deal - they don't have the numbers yet, but talk is that they are close. We also have loyalist military making threats about an Irish Sea Border solution.

Time for Project Shit Meets Fan.

Brexit Olympics

Maybe I'm wrong! You've put doubt in my mind.

Katya Adler @bbckatyaadler
EU response to the DUP refusal to accept the draft Brexit agreement as it stands is: this is first and foremost a problem for the UK /1

France's Europe Minister has also responded that France is 'ready for all scenarios on Brexit' - meaning that France is ready for a no deal Brexit if need be. Subtext:'The EU has given a lot in this round of negotiations. If you push more, be ready that we may opt for no deal' /2

DUP had Theresa May over a barrel at a similarly crunch/high profile/in front of EU leaders moment in December 2017 when she was preparing to sign off on a Joint Report (interim agreement) while sitting inside the European Commission building with Jean Claude Juncker /3

Talk here was that the PM was planning to have a big "I've done this deal" moment here in Brussels ahead of the leaders summit officially starting at 3pm local. The draft agreement text was then scheduled to be item no1 of summit discussion../4

EU negotiators are certainly not planning to rush forward now with suggestions on what to offer the DUP. Accepted wisdom is the EU always has an extra "something else" up its sleeve in negotiations BUT the EU makes concessions that it feels are to its advantage.. /5

Draft text agreed at technical level between EU+UK negotiators does include concessions by EU eg allowing dual customs regime on NIreland (where NI leaves EU customs union but follows EU customs rules). EU wont agree to text changes if feels exposes single mkt/NI peace process/6

EU will look to the PM first and foremost to sort DUP issue out. Dont forget: this is a 2day summit. All 27 EU leaders together in Brussels for 48 hours. Potentially the PM can delay his arrival and EU leaders would still have time to sign off on draft agreement. /7

DUP had wanted a veto over NI being 'separate' from rest of UK in that it would follow EU customs rules+regulations after Brexit. The EU refused. Current text allows opt out for NI power-sharing assembly BUT only after a number of years +ONLY if Stormont is actually sitting../8

This is a massive difference to the backstop in Theresa May's deal which was written up as being temporary. The new text envisages a potential for NI to have different customs and regulatory mechanism from rest of UK permanently. This of course is huge for the DUP /9

Two points I see here.

Couldn't Sinn Fein collapse Stormont (of its sitting)?

With 4 year rolling option out of the arrangement who will invest in NI with the uncertainty?

I stopped for petrol on the way to work this morning. I don’t think I need to refuel again until 9 December. Do you think we’ll be any closer to knowing what’s going to happen by then?

Katya has just tweeted that EU Ambassadors are more and more pessimistic.

Why the hell were the EU ever optimistic?

Brexit being cancelled has been the best option for the DUP for months now. (We’ll all along, but that’s when they noticed, and of course they’d never lose face by saying it, but they know it’s true.) A Brexit that NI doesn’t want and in the process ending up more like RoI than GB and ongoing uncertainty and red tape for business leaves them unpopular with absofuckinglutey everyone.

So the BJ deal is worse for the DUP than TM's? Ha ha. I was pleased when I heard Katya Adler describe how the DUP were going to wreck BJ's "big moment" in the same way as they did for Theresa's.

As for running scared, the scariest thing around atm is a no deal Brexit. Anyone not running scared doesn't understand the situation.

I want Johnson's deal to fail, just to humiliate him, because of the shabby way he treated Theresa May - yes, the Theresa May that I also had no time for.

I hope we get an extension, and in the end, the whole Brexit business gets kicked into the long grass.

Katya Adler @BBCKatyaAdler

NEW:EU Ambassadors representing leaders in Brussels expected to receive draft new Brexit text this morning so as to be able to read with legal experts in EU capitals before EU leaders discuss. They've not received text. EU diplomat to me just now"We are more and more pessimistic"

8.04 17/10/19

It's not over until it's over except Brexit as this nightmare will be never ending even when/if we get a WA

yy to humiliation for Johnson peregrina. couldnt happen to a nicer chap.

The new text envisages a potential for NI to have different customs and regulatory mechanism from rest of UK permanently.

Which surely is contrary to Section 55 of the Taxation (Cross Border Trade) Act?

(1) It shall be unlawful for Her Majesty’s Government to enter into arrangements under which Northern Ireland forms part of a separate customs territory to Great Britain.

www.legislation.gov.uk/ukpga/2018/22/section/55/enacted

Isn’t this at least partly what tied TM into bringing the whole UK into a temporary CU as the NI backstop arrangement?

The ERG brought forward this amendment in July 2018 to scupper the EU’s proposed NI only backstop proposed in Feb 2018?

On today prog this morning the interviewer (not sure who she was) suggested to Dominic Grieve that if MPs got the legal text on Friday they would have enough time to read it (and understand it properly) before a vote on Saturday. I have the greatest respect for the way he patiently explained why this was not the case.
I know interviewers sometimes have to ask stupid questions on behalf of people who don't have full knowledge or understanding of issues, but more and more I believe it's because the interviewers are similarly naïve and ill-informed.

I suspect that Jo Maugham's legal challenge will fail because the "law" that would be conflict with Smug's Section 55 Amendment of the Cross-Border Taxation Act is still hypothetical and not yet law.

But it does fire a shot across the Brexiters' bows

I suspect that Jo Maugham’s challenge will be met by a different argument: a legal fudge in the proposed deal whereby NI legally remains in the same customs territory as GB, and its different arrangements are achieved by a bespoke rebate mechanism.

prettybird but looks like Maugham is pointing out that for Parliament to agree a WA that puts NI into a different customs arrangement from GB would be unlawful?

Yes the “not yet law” point wouldn’t matter - the idea would be to get the court to tell HMG it couldn’t enter into the agreement.

Lark I wondered about that some kind of tariff rebate mechanism - but also wondered if the GATT definition of customs territory might suggest that NI staying in regulatory alignment whilst GB diverges count as “other regulations of commerce”?

2. For the purposes of this Agreement a customs territory shall be understood to mean any territory with respect to which separate tariffs or other regulations of commerce are maintained for a substantial part of the trade of such territory with other territories.

I'm not a lawyer, but I think even the Scottish Courts () would be loath to rule on a hypothetical law - given that it's not even been passed by Parliament yet. It's pulling them even more into the political arena.

Although the indomitable Aidan O'Neill, QC will make a good case

But at the very least, I expect (hope) the judges to make a strong statement that if such an arrangement were to come into force, it would be illegal and to remind the Government about its responsibilities to act within the law.

prettybird which “hypothetical law” do you mean? The Taxation (Cross-Border Trade) Act 2018 received Royal Assent in September 2018.

The hypothetical law of the WA that hasn't been seen yet - let alone voted on

But the Withdrawal Agreement would form a legally binding treaty, that then needs primary legislation to enable it to be ratified.

Surely they just need a section in the Act that agrees the Withdrawal Agreement revoking the relevant section of the Cross Border Trade Act.

Exactly. But it doesn't exist yet

No-one outside of a small coterie within government and the DUP - let alone the courts - has seen the text yet.

We haven’t seen it yet, but my guess is that the legal text will have been drafted with an eye to s55(1) CBTA so that NI is in the GB territory, subject to the same tariffs etc, but with a mechanism for rebate of excess tariffs. A bit like a double tax treaty, where a legal person is subject to the laws of both states, but is relieved by the provisions of the treaty of a double tax burden. (OK not that similar, but still).

Which is not to say it isn’t open to challenge - as a legal fudge it would be novel and may not achieve its aim - but I would be very surprised if this point hasn’t been borne closely in mind in the course of drafting.

Would be a massive climb down for the DUP to see that repealed though - given that Sammy Wilson was most eloquent in arguing for it to be included in the Taxation Act in the first place