WITHDRAWAL BILL PASSES FIRST HURDLE

The EU (Notification of Withdrawal) Bill 2017 looks very likely to pass through the HoC today without any modifications (HERE) and will soon go to The Lords.  I have written to many of the Lords to ask that they try to amend the bill to give parliament more control at the end.

Mrs May wants to trigger Article 50 by March 9th at a European Summit and it seems she may well achieve this aim.  I do not expect the Lords to stop the bill altogether since this would likely bring on a general election and probably spark the demise of the upper chamber in double quick time.

However, I hope they may be able to delay matters. The economic impacts are beginning to be felt and I think if we can string things out a bit some of the lies put about by the leave campaign will be seen for what they were.

SIR IVAN ROGERS

Sir Ivan Rogers has been giving evidence to the European Scrutiny Committee (HERE). One MP Richard Drax (HERE) asked if the EU was genuine and reasonable in asking for 40-60 billion euro as an exit fee. Sir Ivan assured him it was both. He also said lawyers on both sides would come to different conclusions on the amount and implied that this would be probably settled by a political decision - otherwise the ECJ would presumably become involved.

Mr Drax wanted to know why the EU couldn't be reasonable and do what is in the best interests of the hundreds of millions of European citizens. I felt like shouting it was for the same reason the UK voted to leave, because people are not always or even mostly rational.

Kate Hoey asked what would happen if pay it and was told that would end the negotiations and result in no deal but did not seem unduly worried about falling back on WTO rules.

Sir Bill Cash, the chairman, seems not to grasp any details at all and struggled to understand what "access" to the single market meant! He referred several times to "white papers" published before the vote when none were published, just details of the likely result and what alternatives to membership were available. They were not white papers. He complained about documents coming through from the EU that were two inches thick suggesting he just could not be bothered to read any of it to see if it was good or not.

He heard that the Canadian and South Korean trade deals amounted to one and a half thousand pages but we're not as deep and comprehensive as ours are likely to be. I assume he is happy about this because he will not have to write or read it!

In the end it was not Sir Ivan's performance that was rivetting but that of the committee members who looked totally out of their depth, especially the leavers. All of the questions were ones that could and SHOULD have been asked BEFORE the vote. Instead they all urged voters to vote leave without knowing what it actually meant. As for Bill Cash, unless everything is served up in simple writing or pictures it looks like it's way beyond his mental faculties.

What a disaster.

WHERE ARE THE LEADERS?

The Brexit secretary, David Davis, speaking in the Withdrawal Bill debate yesterday said that the eyes of the nation were on the chamber and he was right. However, if the people were looking for leadership, I am afraid they didn't find it.

Too many MPs will vote for the bill even though they know it will cause immense damage to this country and future generations. Only Ken Clarke (HERE) on the conservative side said openly he would vote against the bill and in a terrific speech he mocked brexiteers as well as the idea that referendums are a substitute for proper government. Putting incredibly complex issues to the electorate was, he said, rather ridiculous.

Ian Duncan Smith derided the idea that people didn't know what they were voting for in last year's referendum. That he and other brexiteers think this doesn't surprise me. They themselves don't understand the issues. No one of my acquaintance read any part of the government documents setting out the case to remain and as far as I can tell, they all voted on entirely spurious reasons. I think that only a very small number of people really understand the issues, and they are virtually unanimously in favour of remaining.

In the house of commons there is a substantial majority to remain and on the basis that we are unlikely ever to vote for too many irrational people, this is unlikely to change. I hope when the time comes there will be some leaders emerge rather then meekly following the insane brexiteers over the cliff.

BREXIT BILL BEGINS ITS PASSAGE

The European Union (Notification of Withdrawal) Act 2017 is due to be debated today in the house of commons and is widely expected to be voted through (HERE). There are a lot of amendments including one from the second people's challenge that I have written to my MP about but none are expected to halt progress of the bill.

Mrs May expects the whole bill to have passed through both houses by March 7th.

I also see that there are steps being taken by MEP's in Brussels (HERE) to block any deal unless Britain signs up to environmental regulations after brexit. I don't believe this is unreasonable but since they would expect us to accept some sort of legal oversight, perhaps from the ECJ or another body, this might take a bit of swallowing.

Yesterday Mrs May was in Cardiff to meet the heads of the UK's devolved administrations but no agreement was reached and Nicola Sturgeon is once again threatening another referendum if Scotland is forced out of the single market.

NOW WE'RE FINALLY TO GET A WHITE PAPER

Yesterday the government in the form of David Davis, was adamant there would be no white paper and the PMs speech last week was all that we were going to get. Today, as confirmation they are making it all up as they go along, the PM announces at question time that they will publish a white paper but no date has been given (HERE).

The Article 50 bill is scheduled to be published tomorrow so MPs will be expected to pass this before the white paper presumably? Isn't this putting the cart before the horse?

SUPREME COURT RULES AGAINST MAY

The Supreme Court had ruled the government must obtain parliament's permission to activate Article 50 through primary legislation (HERE). This is no more than was expected although the verdict was reached through an 8:3 majority.

There seems no difficulty in getting this through both houses so it's surprising the government decided to drag it all out.

However, the opposition is now demanding a white paper and the original people's challenge are seeking funds to launch further legal attempts to help pro EU MPs wrest control of the negotiation form the government and ensure that the concerns of ordinary citizens are taken into account (HERE). 

BAD NEWS BEGINS TO EMERGE

The banks are now convince we will lose access to the single market and are said to be accelerating plans to pull staff out of London (HERE). With the legal judgement coming tomorrow the government are said to have prepared four different versions of the Article 50 bill, depending on what the Supreme Court says (HERE) although the Telegraph thinks it is "in the balance". We shall see.

Northern Ireland's exit from the EU will destroy the peace deal. Apparently the Good Friday agreement gives people in the north rights to Irish citizenship and this will be difficult if not impossible to continue to have effect (HERE).

Meanwhile a cross party group of MPs are trying to block plans for what they call a hard brexit (HERE).  The BBC have a report about the difficulty under WTO rules to have what the PM describes as "sectoral deals" since and free trade agreement has to cover "all or substantially all" trade between two countries (HERE) and finally, retail sales took a nose dive in December (HERE). Since consumer spending is what is keeping the economy going these are dangerous times.

Prosper like never before!

MRS MAY'S SPEECH OUTLINES THE OBJECTIVES

Mrs May has set out some of the principles and objectives that will be the basis of her negotiation (HERE). As you might expect there is a lot of cake to have and eat. She is also adopting the Arthur Scargill method which is to demand everything and then blame all the subsequent damage on your opponent when they don't accede to your demands. She says it would be an act of “calamitous self-harm” if the EU do not grant us friction free access to their market. Note no mention of the self harm that we have done to ourselves, only the menacing demand that unless they grant what we want the UK will become an off shore tax haven with low regulatory requirements.

As usual we want to cherry pick. Europe must be heartily sick of us, always stamping our feet in a tantrum because things aren’t going our way. Reaction has been predictable. The Daily Mail is delighted but in Europe they are less happy (HERE).

The best comment comes from a Belgian journalist (HERE) who says there is the delusion here that the EU will be damaged more than the UK but this morning in Europe all the talk and analysis is about how much Brexit is going to hurt us and how very, very long the process will be.

It all begins to resemble an England football match. First comes the drinking and the bellowed, foul mouthed bravado, the talking up of a great victory. Then the abject failure and recriminations followed by the hangover and the long, slow build up to the next delusion when it is all repeat again. We never learn do we?

Some more reaction can be found (HERE). Die Welt's headline is that Mrs May is leading us into isolation and I agree with this. Some people including Sir Andrew Cahn (HERE), our former single market advisor, think the EU has already won the first round by forcing Mrs May to announce we are exiting the single market, something we did not want to do.

LEGAL ISSUES MULTIPLY

Last week saw a number of developments on the legal front. Firstly, The People's Challenge reported that the government has attempted to get an early site of The Supreme Court's judgement but were rebuffed (HERE). It rather looks as if they are starting to panic. The excuse was that they wanted to put contingencies in place!  Amazing.

Then, in Ireland Jolyon Maughan QC (HERE) has released the "letter before action" which is the precursor to starting a legal challenge to get the ECJ to give a ruling on whether or not Article 50 can be revoked. This may mean we will get the chance to vote on the new settlement and reject it if we do not like it.

And finally, and again in Ireland but this time north of the border, the executive has collapsed with the resignation of Martin McGuiness and this has led to suggestions from NI politicians that Mrs May cannot trigger Article 50 until a new executive is in place (HERE). To do so, they say, would be illegal (HERE). New elections will almost certainly be required and this will take at least eight weeks, meaning Article 50 may be delayed by a few weeks or even months.

On top of this Mrs May is to set out the government's thinking on brexit next week and MPs are pressing her to set out her objectives on the single market and the customs union. If she hints that we are to leave one or both the pound is likely to come under increased pressure. She is in an impossible position. I wouldn't like to be her speech writer.

GOVT SAYS IT WILL LOSE LEGAL CHALLENGE

The government is apparently resigned to losing the legal challenge by 7 to 4 at The Supreme Court as reported by The Guardian (HERE). The only surprise is that four of the justices think the government's argument holds water.  We shall see when the verdict is announced.

NEW LEGAL CHALLENGE OVER EEA MEMBERSHIP

If the government didn't realise the legal complications before they certainly do now. A new legal challenge is being made (HERE) concerning Britain's membership of the EEA. The challengers maintain parliament (assuming the first challenge is upheld) needs to separately approve our withdrawal from the EEA.

The background to this is HERE.

There is no majority in either house for us to leave the single market so this approval may not be forthcoming and we may yet have a Norway style membership.

ANOTHER LEGAL HEADACHE FOR DAVID DAVIS

A new development today. Lawyers for British Influence , a pro EEA think tank, are suggesting that the UK is a member of the EEA in its own right and will need to withdraw from this area separately using article 127 of the EEA agreement (HERE). This is not difficult since it seems only to involve giving notification 12 months in advance, although I'm sure there is more to it than that. Having looked at the agreement it is clear that we (the UK) are listed as one of the contracting parties, separately to the EU, so I can see a legal challenge succeeding on this.

The government’s problem is that they may not have a majority in parliament to withdraw from the EEA. This would cause an enormous row with brexiteers but I am not sure what they would be able to do about it.

Stunningly, on the BBC Today programme this morning, neither Nick Robinson or the person he was interviewing from British Influence seemed to know Switzerland is not in the EEA! They referred to the Swiss referendum on freedom of movement breaching EEA rules without mentioning or realising that the Swiss relationship is governed by a bilateral agreement and NOT the EEA rules. Amazing!

I assume this will play in to the Article 50 court case since if the government wins this they will argue the EEA treaty can be abrogated by royal prerogative without any parliamentary vote at all?

A HARD BREXIT AWAITS US

According to Standard & Poor, the most likely outcome for the UK is a hard brexit outside the EEA and the customs union (see Reuters HERE).

S & P said that it appeared that Britain's government had not yet accepted that the EU was unlikely to yield on the indivisibility of its four freedoms - the free movement of people, capital, goods, and services.  Eventually perhaps, the penny will drop for the brexiteers.

The EU chief negotiator Michel Barnier said the talks will be neither aggressive or naive (HERE).

DOMINIC GRIEVE SPEAKS UP FOR THE JUDGES

Dominic Grieve, the former Attorney General and a man who fearlessly speaks his mind, has written a piece in the Staggers (HERE).

He says:

Our membership of the EU is underpinned by statute law. Brexiters may dislike the fact that this ever happened, but this was sanctioned by the sovereign will of Parliament when it enacted the European Communities Act in 1972. It is for Parliament to undo it and even if the government had won the case it could not carry out its task without parliamentary support.

And also:

This episode illustrates the fact that the growing violence of language and paranoia that now seems to characterise so much of the discourse of supporters of Brexit has other roots. It is difficult to escape the conclusion that its prevalence is a reflection of the insecurity which is inherent when a referendum victory is in part based, to the knowledge of some of the victors, on a prospectus supported by deliberate untruths.

The shadow Brexit Secretary, Keir Starmer, a former DPP has spoke up for the judges (HERE).

SCOTS TO JOIN LEGAL ACTION

The Scottish government has announced it will join Miller et al in the challenge to Article 50 (HERE). The appeal is to be heard on 5th December (HERE).

However, The Telegraph reports (HERE) that Euro sceptic Conservative MPs are trying to organise a quick vote in Parliament to try and get around the appeal court hearing.  They seem to think a short motion authorising the government to invoke Article 50 at any time up to the end of march next year will be enough.  It will be interesting to see if this gets the support of the majority. I am sure the opposition will vote against and it only needs a few Conservative Europhiles to vote against to defeat it.

It will give some idea of the feeling inside the HoC.

David Davis has said he will share his thinking with the devolved governments (HERE) as some sort of sop.

LAWYERS FOR BRITAIN

After last week's High Court ruling there has been a flurry of comment, mainly from outraged brexiteers about the courts "interfering" in a political process. Brexit Central posted a link to a website called lawyersforbritain (HERE) which criticised the judgement.

However, lawyers for Britain are wrong on at least two fundamental points. Firstly, they say the referendum result was binding  and that the royal prerogative is used in the Council of Ministers of the EU to vote for Regulations which then alter domestic law (HERE).  But I think last week's judgement answers both points.

It was common ground that the referendum was NOT binding with even the government conceding the vote had no statutory power at all.  And Regulations become effective in UK law after the use of the royal prerogative only because parliament has so willed it.

They also argue there is nothing in the 2008 European Union (Amendment) Act to say the prerogative could not be used but it did bring under parliamentary control any further changes to EU law. But last week the High Court accepted that parliament could not have intended to "switch on" EU law but leave it to the executive using an ancient prerogative to switch it off.  And a similar argument was used by the Attorney General that in the absence of a specific part of the original 1972 Act preventing the use of the prerogative, the government should be permitted to use it.

But the court decided that in domestic law (i.e. the 1972 Act), where it is not clear, it must be presumed only parliament retains the power to confer or deprive people of rights. Only in International law, which does not impact domestic law is the crown free to act using the prerogative.

LEGAL MISUNDERSTANDINGS

There is a lot of misunderstanding of yesterday's legal decision and a lot of vitriol towards the judges in the Mail (they are described as enemies of the people - very dangerous stuff).  David Davis and IDS were both on TV decrying the High Court and saying the people had made a decision.

But this is fundamentally wrong. The people were asked in an advisory referendum. No decision has been made yet and the whole purpose of the case was to decide who gets to make the decision. Is it parliament or is it the executive?  The court decided, quite rightly it must be parliament.

It would be a surprise if the Supreme Court were to disagree with the judgement.  Only parliament can take away rights give to us by parliament. If it were otherwise parliament itself would be irrelevant.

LEGAL BATTLE - FIRST HURDLE CLEARED

There was a spectacular victory at the High Court in London today (HERE) and (HERE) when the court agreed that parliament must give the approval before the government can trigger Article 50. BBC described it as a hammer blow against Theresa May's Brexit plan.

The government has said they will appeal the verdict, leapfrogging the Appeal Court and going directly to the Supreme Court in December (the 8th I think). If we succeed again, parliament must then be asked to provide a mandate to allow Article 50 to be started.  Brexiteers are protesting like mad but they (in their own words) should accept it and get on with it!  The Telegraph carry an article this afternoon saying the case should not have been brought (HERE) and even Daniel Hannan, usually such a campaigner for the sovereignty of parliament is talking about the "pomposity" of it.

It is hard for them to argue against it since it is simply making parliament sovereign, something they have all argued for - but only when parliament agrees with them!  I would say if they cannot accept it then they must accept the reverse position. If the government can take us out of Europe without parliament, then a future government can take us back in - without parliament.

It's a great day for democracy and the first time I can smile since June 24th. It is like El Alamein all over again, before it only defeats, afterwards only victories!

Prosper like never before.

Update:  David Davis and Theresa May both now seem to accept the decision (If the Supreme Court agrees) will mean primary legislation pass both houses. Baroness Wheatcroft was on Radio 4 this morning saying the March deadline is all but impossible now.  Mrs May has apparently already said the schedule remains as planned.

A DILEMMA

The government has a bit of a dilemma coming up. Article 50 is to be triggered by the end of March 2017 but it seems clear this will be done before two absolutely key points are certain.

Firstly, we do not yet know if Article 50 is irrevocable or not and this would need to be clarified by the ECJ. The actual legal position may not be known when it is triggered – unless the UK applies to the ECJ beforehand and it is not clear they would even want to do this.

Secondly, we don't know if trade negotiations will take place in parallel with withdrawal talks or will have to wait until after we get out. This is important. David Davis thinks they will be simultaneous based on a phrase in Article 50 that says the agreement is to be concluded “taking account of their future relationship” with the EU. The EU's trade commissioner has said it would be illegal to negotiate a trade deal before we leave. The EU may even be daring us to take the risk.

Think about this. It really is a leap into the unknown. No doubt the government will try to get more clarity but at the moment the EU are refusing any pre-negotiations. If Mrs May sends the Article 50 letter without knowing these two things with absolute certainty it will be a massive gamble.

LEGAL CHALLENGE TO ART 50 - FAISAL ISLAM'S TAKE

It seems Faisal Islam, the Sky News reporter attended the high court hearing last week where the legal challenge to the triggering of Article 50 by the government was being heard.  He now thinks the decision will be close, having initially believed the judges would find in favour of the government, now he is not so sure (HERE):

What was thought of at first as a marginal case is now looking rather in the balance for the Government, with potentially huge significance for Brexit.

And:

The Lord Chief Justice said twice that [the government's] argument "baffled" him.

It is entirely plausible that the Government will lose this case, which might come as a shock to Westminster.

I think he is right and the significance will certainly be huge.