Week in Review: Total Brexit madness

None of it made sense, on any level. It was a week where the logical contours of Brexit simply disintegrated. Outside Westminster, people would ask in ever-more baffled terms what was happening. But by explaining it you felt like perhaps you were losing touch with reality yourself.

The government had backed an amendment against its negotiating posture so that it could make its own Brexit plan illegal. It then whipped MPs to oppose an amendment supporting its white paper and had to rely on the votes of Labour MPs to defeat itself. It was like Alice Through the Looking Glass. Everything was back to front.

How had it come to this? The main reason was cowardice. No.10 couldn't stand up the Brexit hardliners in the European Research Group (ERG), even though they had the numbers. It was simply too embarrassing for them to see huge chunks of their own party vote against the government’s line. So they buckled on four amendments - all of them constructed to derail the white paper on a customs partnership and single market in goods which the government had published the week before.

On Thursday last week, MPs had been ordered to speak gushingly about a plan which would see Britain collect tariffs for the EU but not the other way round. Now they were being whipped to support an amendment which would outlaw non-reciprocal tariff collection.

What was wisdom days earlier was now heresy. Except that it would later convert into wisdom again because the government insisted the plan was still formal policy. Policies were going from wisdom to heresy and back again in the course of an afternoon. And then, as events escalated, they finally merged to become wisdom and heresy simultaneously. Each was operating at a different vibrational frequency in the same space. A plan could be both wise when proposed by Downing Street and heresy when Jacob Rees-Mogg said so and yet retain the same fundamental components throughout.

Some legal figures believe the government might technically be able to get away with this by relying on the use of a formula to calculate tariffs in their customs plan. It is worth mentioning at this stage that the customs plan this entire debate is based on would never be accepted by the EU and will never exist. You might as well work out the legality of customs arrangements in Lords of the Rings or the immigration policy in Teletubbies. But regardless, it is on this next-level fantasy setting that British governance now rests.

There were no technical evasions available to the Ireland amendment, however. This made it unlawful to pursue a policy which would create a separate customs territory between Great Britain and Northern Ireland, even though this is precisely what the withdrawal agreement with the EU will do. Now this will presumably have to be repealed before any agreement can be signed. Rarely before have governments passed laws they intend to repeal before they have even reached the statute book.

The next day whips used every dirty trick in the book to vote down an amendment which was ostensibly designed to support their own position. The madness continued, it simply flipped round to face the other way. The crucial vote was on a demand that the government pursue its customs partnership plan, albeit with a membership backstop if they hadn't succeeded by January.

Not only did the government oppose its own strategy - it went haywire. It seems likely now that the whips went against any notion of basic parliamentary honour and broke the pairing system. This basically sees MPs on one side abstain to balance out the MPs on the other side who cannot attend due to sickness or because they are looking after babies. Lib Dem Jo Swinson, who was at home with a newborn, was left aghast when her pair, Brandon Lewis, went in to vote. He claimed it was an error. But it seemed astounding that his error only took place on the two closest votes.

It was telling that the Tory rebels held their nerve this time, despite all the threats which came their way. But the government was, in the end, saved by Labour Leavers: Kate Hoey, Frank Field, John Mann, Graham Stringer and Kelvin Hopkins. They had stepped in at the last minute to protect Theresa May and prevent even the most modest of compromises.

It is quite astonishing, from this vantage point, to consider how extreme their position has become. It is not as if the amendment mentioned the single market or something substantial. This was on a customs partnership, which is in itself a compromise to avoid customs union membership. The fact they would protect a Tory prime minister in order to secure such a trivial aim shows how fanatical the entire debate has become.

The Brexit project is now at a standstill. May's Chequers compromise needed further concessions in order to pass. It is now clear she has no hope of winning a Commons majority for them. But if she does not - most importantly on Ireland - she cannot secure a deal. And the idea of leaving the EU without one has no Commons majority either.

There are no exits to the building May is in. The walls are on fire. It is hardly surprising that the most ambitious plan Downing Street came up with this week was to cut short the parliamentary term and send MPs home early. As one history buff observed on Twitter, there was a newfound historical irony to the prime minister. She had stuffed these bills full of Henry VIII powers but was behaving like Charles I. That didn't end well for him either.

Meanwhile, in Europe, Brussels was issuing a 16-page warning about no-deal. Visas could be required even for tourist travel. There would be chaos in financial services, aviation and pharmaceuticals. The trading links would detonate.

It should sharpen minds in Westminster. But it will not. The people who do not know the consequences of the UK's current course of action have chosen not to know. This became a religious debate about identity long ago. If objective reality had anything to do with it, we wouldn't have seen the events of this week in the first place.

Ian Dunt is editor of Politics.co.uk and the author of Brexit: What The Hell Happens Now?

The opinions in politics.co.uk's Comment and Analysis section are those of the author and are no reflection of the views of the website or its owners.

Dirty tricks: Trade deal legislation strips parliament of control

"It's obvious," Ken Clarke told the Speaker today, at the start of the debate on the trade bill.

"The moment we have an important bill, the government is anxious the House of Commons should have no opportunity to talk about it, limited opportunity to vote about it and it should be got out the way as quickly as possible. We should be challenging this scandalous abuse of the House."

Clarke's comments had a specific origin. The hours beforehand had seen another attempt by parliament to limit any involvement from MPs in the Brexit process.

Yesterday, the taxation (cross-border trade) bill - confusingly referred to as the customs bill – returned to the Commons, but not before a pointless statement by Liam Fox was inserted beforehand to run down the clock.  Today, it's the turn of the trade bill. Taken together, these bills allow the government to extract itself from the EU's trade policy umbrella and conduct its own trade deals.

Neither has been given anything even approaching a respectable period of time in the Commons. They've been rushed through, amid attempts by the prime minister to bring forward summer recess and limit the number of days parliament is sitting still further.

John Bercow replied to Clarke that he could not control the timetable – that was up to the government. But his sympathies were unmistakable. "The Speaker will do everything possible to facilitate votes that members wish to have," he said. And then added pointedly: "No attempt to avoid that is going to work and I think people need to be clear about that."

He had good reason to be suspicious. As the two men talked, government whips were trying to group a rebel amendment by Nicky Morgan into a last batch so that time would run out before it was called. The endless series of dirty tricks designed to stop MPs having a say on Brexit continues to provide new tips and techniques. When they're done, the whips should write a Christmas book, listing them all one by one.

The same goal is being pursued in the Lords. Peers are blocked from scrutinising things called 'money bills'. These are pieces of legislation solely concerning taxation or government spending. That block provides a tempting opportunity for the government. After all, peers have been far more troublesome than MPs. Ministers would like little more than to exclude them from the Brexit process altogether. So they have argued that the customs bill is a 'money' bill and that the Lords should, therefore, be kept out of it.

There's a problem with the government argument though. Clause 51 of the bill contains some rather extensive powers which go much further than mere taxation. It basically allows ministers to make any change to VAT, customs duty or excise duty they like. It does this using something called statutory instruments, otherwise known as Henry VIII clauses, which grant the government executive powers to change law without parliamentary interference.

There is no time limit on how long these powers can be used for, so some future minister in a future government could deploy it for all sorts of things we cannot currently imagine. The only limitations are that it can only cover these three areas.

The powers can even be used on the Act itself, like some kind of circular, post-modernist mallet. This means you could use a statutory instrument to alter the rules on the use of the statutory instrument. This sounds insane but actually it makes perfect sense. It is exactly the kind of mechanism you'd put in a bill if you wanted to be able to delete its safeguards at a later date.

In the government's defence, it is not unheard of for statutory instruments to be used in money bills. And some of these powers will surely be needed for the kind of hasty technical action Brexit may well entail. But too few safeguards have been proposed for their use. Indeed, the entire approach of the government has been to try to avoid any scrutiny of its powers at all. That bodes badly for their responsible use of the powers they are giving themselves here.

Behind the scenes there has been quite the battle over this. Clerks agreed with the government that it was a money bill. But that decision was not theirs to make. It was the Speaker's.

Senior legal advisers were brought in. They argued that Clause 51 meant it was not a money bill. The clerks continued to kick back against this advice. One of them even threatened to resign over it. But gradually Bercow was being convinced by the lawyers.

Then the ERG hardliners came in with their amendments on customs collection reciprocity and a customs border in the Irish Sea. They won those battles, but victory had a delicious irony in it. These amendments clearly went beyond anything in a money bill. They made it almost impossible to argue for the government's category. Bercow is now heavily expected to allow it to go the Lords. There, peers are likely to give it a good going over and return it to the Commons with a series of amendments.

That's not the only fight going on. At the moment, Liam Fox is supposedly negotiating future trade deals. If he is doing even the bare minimum his job entails, he will be talking to the countries which have existing trading arrangements with the EU - ones we previously enjoyed the benefits of as a member state. The UK urgently needs these to be rolled over.

But there's a problem. Countries like South Korea, Chile and South Africa are unlikely to just continue our trading arrangements on current terms, given they are now being offered a more limited degree of access to the single market. And there's one other thing: Britain is at a disadvantage. It is facing a severe time limit on negotiation, at the end of which it will fall out of the trade agreement by default, amid general political and economic chaos. So they are not only being presented with a worse deal than before, they have the leverage to secure a better one.

It is a disastrous combination and one which would challenge even a highly competent minister. Fox is not that minister. So we urgently need to know what he is doing and what kinds of promises he may be offering trading partners. However, under existing law, MPs have no right to see his negotiating text until it is completed. They are frozen out.
Even when a deal is done, MPs' powers to resist it are very limited and Fox is doing everything he can to keep it that way.

We used to have an extra layer of scrutiny when it came to trade deals. They were called MEPs. When the EU was ready to sign a trade deal, MEPs would hold it to account.

Increasingly, member states had become so belligerent that the Commission was even starting to seek their individual consent to trade deals. The Ceta deal with Canada, for instance, was almost torpedoed when the Belgian regional parliament in Wallonia decided against it.

That kind of democratic accountability seems like a distant memory now. Outside the EU, we've only MPs to scrutinise trade deals. And they are very limited in their powers.

The existing rules come from a 2010 piece of legislation called the Constitutional Reform and Governance Act. It took an old 1920s convention called the Ponsonby Rule and put it on firm statutory footing.

The trouble is that the Ponsonby Rule doesn't add up to much. It just states that a government wanting to sign a treaty must bring it before parliament, lay it down, and give MPs and peers 21 days to object to it. There is no legal obligation to hold a parliamentary debate. It just sits there and is passed if no-one complains.

Even if people do complain, it doesn't achieve very much.

If the Lords complain, the government can just ignore them. If the Commons complain, the consequences are marginally stronger. The ratification process is delayed. The government has to put down the treaty again and a new 21-day period begins, in which the Commons can complain again, if it wants to.

There is no end-point on this weird constitutional curio. If the Commons is disciplined enough about it, it can keep delaying that treaty forever. But it can never veto it.

All said, this is a pretty weak parliamentary power. If the government can keep proposing something over and over again, with whips constantly trying to buy off rebels as we have seen in recent months, it's likely to win eventually. But that is all that is on offer. That is the full extent of parliamentary control over Fox's trade agenda.

At every level - from day-to-day politics, to the use of official parliamentary categories, to the small print of the bill - the government is seeking to maximise its own power and limit that of MPs and peers. If it's parliamentary sovereignty you’re looking for, you've come to the wrong Brexit.

Ian Dunt is editor of Politics.co.uk and the author of Brexit: What The Hell Happens Now?

The opinions in politics.co.uk's Comment and Analysis section are those of the author and are no reflection of the views of the website or its owners.

The govt has passed a law against its own negotiation strategy

It is hard to fully comprehend the scale of the stupidity which has seized Downing Street. After a few days of bad headlines and a handful of resignations by people no-one had ever heard of, Theresa May is dismantling the white paper she published last week and accepting terms which would all-but guarantee no-deal Brexit. It is cowardice on a Olympic scale.

No.10 confirmed yesterday that it would be backing all the amendments put down by hard Brexiters to the customs bill, saying they were compatible with the Chequers agreement it was defending last week. 

"I would not have gone through all the work I did to ensure we reached that agreement only to see it changed in some way through these bills," Theresa May told the Commons today. "They do not change that Chequers agreement."

She is wrong. One amendment prohibits the "collection of certain taxes or duties on behalf of territory without reciprocity". The white paper, on the other hand, states that Britain will collect tariffs on behalf of the EU at its own borders, but "is not proposing that the EU applies the UK’s tariffs and trade policy at its border".

These things simply cannot be put together. One prohibits non-reciprocal arrangements and the other describes them. The government is literally going to pass a law against its own Brexit plan and then, for good measure, insist the former does not "change" the latter. Indeed, you'll notice that, once again, 'nothing has changed'. Up is down and black is white. Nothing means anything. 

But the reciprocity issue is not even the most lunatic of the propositions on offer. Far more dangerous is the proposal on the Irish backstop proposal. This makes it unlawful for the government "to enter into arrangements under which Northern Ireland forms part of a separate customs territory to Great Britain".

This amendment effectively makes it impossible for the government to secure a Brexit deal. 

The Brexit deal, when it comes back, will actually be two documents: a withdrawal agreement and a set of commitments on the 'future relationship'. The first is a legal text. It'll be agreed by negotiating teams, taken back to the UK and European parliaments as a motion, then signed as a treaty, translated into primary legislation, and finally passed as law in the UK. This covers the divorce payment, citizens rights, transition and, crucially, the Irish problem.

The Irish backstop, which the UK signed off on last December, says that if all else fails and no other arrangements are made, a hard border in Ireland will be avoided by ensuring Northern Ireland and the Republic of Ireland have the same customs arrangements and regulatory structure. This would entail Northern Ireland having a seperate customs territory to Great Britain - the exact scenario the amendment rules out.

The 'future relationship' document, on the other hand, is political. It doesn't have any legal standing. It will say, in pretty vague terms, what the UK and EU want to achieve in their future relationship. This'll then be turned into concrete action after Brexit day, when the negotiations begin on what the trading arrangements would look like.

Some believe that the real function of the Chequers statement was to use this sequencing structure to force through a deal. May knew that the EU would never agree a customs partnership or single market in goods, which was the basis of her Chequers statement. But they didn't need to. They just needed to not reject it before Brexit Day.

That allowed her to pretend to hard Brexiters and the DUP that she had established a future relationship which would avoid the need for checks at the border. The backstop would never be needed. Now she could sign the deal, secure Brexit, and punt off all the problems into the 'future relationship' talks after it had taken place.

The amendment throws all of that into disarray. 

Many Westminster insiders have treated it as irrelevant, because May already pledged not to form a customs border between Great Britain and Notthern Ireland. But there is a difference between promises and legislation. Putting that on the statute books would make it impossible for May to agree to the backstop while reassuring everyone that it would be irrelevant because of the future relationship.

It would strip everything down to law instead of politics: It is illegal to pursue an agreement putting a customs border in the Irish sea and this international treaty puts a customs border in the Irish Sea.

The government would be passing a law against its own negotiating strategy. That is surely not a tenable state of affairs. No sane political culture could throw up such an outcome.

It is incredible to think we have a government so gutless it would even consider this - especially when the ERG doesn't even have the numbers to defeat them. And it is also extraordinary that Brexit hardliners should pursue it. They are effectively starting a guerilla war against even the possibility of a deal.

Ian Dunt is editor of Politics.co.uk and the author of Brexit: What The Hell Happens Now?

The opinions in politics.co.uk's Comment and Analysis section are those of the author and are no reflection of the views of the website or its owners.

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