First blood: Parliament blocks Boris Johnson's plan to sideline it

They took the first shot before he was even in place.

For weeks now, Boris Johnson has refused to rule out sidelining parliament so he can force through no-deal. We don't know why. He might just be trying to look tough for the crazed wing of the Conservative party, or he could really be intending to go through with it.

It doesn't matter. It is a democratic nadir, a low point hardly anyone would have ever thought possible before the referendum: a man standing to be British prime minister holding open the possibility of cancelling parliamentary democracy.

But today, before he has even entered No.10, parliament took a stand. It did so through the usual tangle of procedures and backroom dealings which have typified the Brexit process.

Last week, Tory moderates tried to put down amendments forcing the government to publish reports on the status of Northern Ireland during the autumn, with Commons debates attached. These would have given them a basis upon which to launch a rearguard defence against no-deal. Most were rejected, but one squeaked through by a single vote.

It shuttled back to the Lords, who then bolstered it back up and returned it to the Commons. Today, moderate Tories amended it again. They added a rider that the House would return to debate these reports even if parliament was "prorogued or adjourned". This was a chance to pre-emptively overrule any attempt by a new prime minister to sideline MPs. No matter what Boris Johnson did to parliament, MPs could come back to Westminster and hold him to acount.

It was expected to be tight, especially after the knife-edge results last week. But in the end, it sailed through: 315 votes to 274.

The Tory moderates in Cabinet, who had warned they would fight attempts at prorogation, held the line. Special credit goes to Margot James, culture minister, who quit and voted for the amendment. Six others in Cabinet abstained: Karen Bradley, Greg Clark, David Gauke, Philip Hammond, Caroline Noakes and Rory Stewart.

In a normal government, they'd be fired right now. But what's the point? Theresa May is off next week anyway. The only reason to do it would be spite.

The amendment will now be enshrined in the bill, which is very likely to pass.

We need to be clear what this means. It does not stop no-deal. It does not even stop Johnson proroguing parliament. He can still do that. But if he does, MPs will be able to return and sit for a debate. And in that scenario, against a prime minister trying to cancel British parliamentary democracy to force through no-deal, we can be confident that they would act to stop it.

They know how to do this. They passed legislation last time - the Cooper amendment - forcing the prime minister to request an extension to Article 50. So they have the mechanism. And they would most certainly have the will. While this move doesn't make prorogation impossible, it makes it largely ineffective in trying to achieve no-deal.

It's an important moment for several reasons. Firstly and most importantly, it blocks off the attempt to cancel parliament. Secondly, it shows the institution is ready to stand up for itself in the battles to come with the executive. And there is a third part, which hasn't been properly recognised yet but could prove crucial to the entire Brexit process. The amendment provides usable vehicles for MPs to prevent no-deal.

The Lords amendment, which was bolstered by the anti-prorogation amendment in the Commons, demanded that a minister put down each Northern Ireland report and then allow "a motion in neutral terms" on it.

Back in the day, those neutral motions couldn't be amended, so they were effectively meaningless. MPs need to be able to amend them so they can issue a command to the government.

There was an awful lot of toing-and-froing over that in the last bout of fighting over May's deal. But then MPs won. They voted to temporarily suspend the Commons rules - called standing orders - preventing amendments on neutral motions. And then they were able to take charge and force the government to do their bidding.

That set-up is now in place in the days leading up to the October 31st deadline. There are now vehicles for MPs to potentially stop no-deal.

This is theoretical. They'd still need to win a vote suspending the standing orders again, for a start. But it has been done before and can be done again. The slow chiselling away of the government advantage has begun. Johnson's ability force through no-deal is significantly diminished.

He hasn't even made it to No.10 yet and already his hasty, foolish promises are starting to fall apart around him. British constitutional democracy is fighting back.

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.

Revealed: Letter shows UK govt indifference to European voters

Things couldn't have gone much worse at the European elections, on a basic democratic level. The British government insisted on a strict definition of EU bureaucratic requirements, leading to many European citizens being turned away from polling booths and denied their vote. It was an appalling sight.

And now we know something else: British authorities barely even bothered to use or transmit the data that was apparently so important it justified disenfranchising them. A letter seen by Politics.co.uk from the Dutch Interior Ministry reveals a staggeringly inept behind-the-scenes UK operation which raises questions about the government's motivations for enforcing the rules in the first place.

The UK insisted on two requirements from EU citizens before they could vote last May. First, they needed to be on the electoral roll. Second, they needed an extra declaration, called UC1, which confirmed that they were choosing to vote in the UK rather than the country they're from. The deadline for that form was May 7th, over two weeks before the vote. This needed to be physically mailed - not emailed or filled-in online - to a local electoral registration officer. It was an absurd and prohibitive faff.

When Cabinet Office minister Kevin Foster was asked if perhaps European citizens could fill out the form at polling stations, he insisted that the government really did need to stick to the very strictest definition of the rules. "The latest date in which an EU citizen can submit a European parliament voter registration form to register as an elector in the European parliament elections is 12 working days before the date of the election," he said, personable as ever. "The 12 working day deadline is based on two provisions relating to the application process and the publication of, and alterations to, the register before the election." So no wriggle-room there.

Many people never even knew this form existed. The need for it wasn't advertised. Electoral registration officers didn't send it out. A few campaign groups tried to make some noise on social media, but there was nothing from government. Others heard about the form after the deadline, or sent it off on the deadline, meaning it wouldn't get in on time, or they did everything right but their council didn't handle them anyway.

The end result was the same. Countless European citizens, who had spent three years living in uncertainty due to a referendum they didn't even have a right to participate in, were disenfranchised once again. Insult upon insult.

That was a democratic crime scene. And just like any crime scene, it started to throw up new bits of forensic evidence the longer it was examined.

The latest comes from the Dutch Interior Ministry. They were asked whether they received the UC1 data from Britain. The answer was extremely revealing.

Only 200 local registration officials, out of over 380, sent the data. Even where they did get it, Dutch authorities were unable to process it, either because it was technically unreadable or due to missing key data points, including date of birth and full first name. It was completely unusable.

And here's the kicker: The Dutch complained of the exact same problem in 2014. And the British government did nothing about it. They'd had five years to fix it and they sat on their hands. 

What a chasm there is between what the government demanded of European citizens and how it behaved itself once it disenfranchised them. The requirements on them were stringent and demanding - letters to be filled out and sent on, information which was barely released having to be followed to the letter. And all, they said, because they were really committed to sticking to the absolute letter of the EU rules.

But then there was their behaviour behind the scenes: Data that wasn't sent on, and no-one even bothering to make it processable or even technically accessible. 

It's an extremely revealing gap. It tells you everything you need to know about their priorities. Groups representing EU migrants are currently crowdfunding to launch a legal case against the government over their disenfranchisement at the elections. Hopefully they'll succeed and that democratic crime scene can keep being investigated.

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 trade remedies problem: Brexit no-deal plan in disarray

All the little Brexit Gremlins are in the bits too boring to think about.

Take trade remedies. This is ostensibly a pretty tedious bit of law. They're the mechanism we use under the WTO to counter dumping or subsidies by other countries.

Dumping is when a product is sold more cheaply in another country than where it is made, in a bid to wipe out the competition and establish a monopoly. Subsidies are when the state funnels cash into an industry to allow it to outperform its competitors. They both highlight a risk of global free trade: sometimes other countries don't fight fair.

Trade remedies provide a defence. They mean that we can calculate how much the dumping or subsidy action costs our domestic producers, and then put up our tariffs accordingly. It's called a countervailing measure for subsidies and an anti-dumping duty for dumping. The EU has a few dozen of these.

Not the most exciting thing in the world. But if you get it wrong, British industry gets hammered. China is producing just under a billion tonnes of steel a year, an unparalleled industrial record. British domestic production can't withstand that without protection. This is why you need to be careful and well-prepared in your trade policy and not run around drunk on low-grade mezcal, messing with all the levers of the country's trading system.

But predictably, Brexit Britain took the mezcal route. Reports emerging from the government's trade remedies body paint a depressingly familiar story: There isn't enough experience, they're badly out of their depth, and those who question policy are frozen out altogether. 

The government's basic plan for trade remedies in the event of no-deal is pretty simple: copy them. Just take the EU's countervailing measures and adopt them wholesale. But they have a problem: you can't actually do it. The calculations about dumping and subsidies which the EU used were made for the EU. The UK needs them to be based on the UK.

So they're doing the only thing they possibly can: keeping the tariffs where they are, then setting up assessments of dumping and subsidies after-the-fact, so that they can justify them in court. All fair enough. There really wasn't another course of action open to them.

But that means that they really need to get these assessments right. There are lots of countries with a very large financial incentive to legally challenge British decisions in this area. They absolutely will take action, and they can do so at two levels: internationally at the WTO and domestically in the upper tax tribunal.

The first isn't too much of a worry. The WTO is slow. But the upper tribunal is here in the UK. It'll be much faster. And it will be able to pay careful attention to the manner in which these decisions were arrived at, because the mechanics for doing so - copied over from the WTO - were in last year's Taxation Act.

This is where you need to start dotting your i's and crossing your t's. If you don't do these assessments right, the ensuing legal challenge will succeed, and that puts British industry in danger. 

Unfortunately - but entirely predictably - the government's trade remedy assessments look like they are in complete disarray.

The problems started during the battle between parliament and the government. Since the start of the year, the government has simply stopped putting legislation through the Commons, because it is petrified that MPs will use it as a vehicle to stop no-deal. Its entire legislative agenda has basically screeched to a halt,

One of the legal victims is the Trade Remedies Authority, which was supposed to be established in the trade bill. Not anymore. The trade bill is now on life support and the authority could never be established. Instead, they've come up with hastily-scrambled together back-up solution: a trade remedies 'directorate' inside the Department for International Trade.

It's all they can do, given they've given up on trying to actually pass laws. But there are consequences. When countries launch cases against the UK tariffs, this is a fact they're undoubtedly going to bring up. After all, Britain's own legislation says it needed a Trade Remedies Authority to do the work and here it is instead with some directorate thing it cobbled together because it's terrified of its own parliament. The whole thing's a shambles.

Then there's the staffing problem. The people they need for a trade remedies body are highly-skilled, very well remunerated, in short supply and mostly don't live in the UK. After all, no-one in Britain has needed to do this work for decades, it's all been handled in Brussels. You have to get them from overseas - probably from Brussels, America, Australia or New Zealand. And that means you have to make it financially attractive.

The pay offer ranged from around £35,000 to £60,000, depending on the civil service grade. These are decent salaries, but way below what these kinds of people would be paid in their current jobs.

The office was set up in Reading. It's a nice place, but if you're trying to tempt people over from Belgium or Australia, then London would be a more compelling and natural offer.

Maybe some people would have taken the pay cut anyway. They might have been intellectually fascinated by it, or believed in it, or thought it would have been worth it for the experience But then there was a further disincentive: it wasn't clear they'd even be doing the work.

If there was a withdrawal agreement, the trade remedies work might be delayed during transition. If Britain stayed in the customs union, it'd never be done. The UK government was basically offering people a pay cut to twiddle their thumbs in Reading for three years, with no guarantees they'd ever do the work at the end of it.

Even with these restrictions, the recruitment process was extremely poor. Some applicants didn't even know what trade remedies were when they interviewed for the job and the details of the work were not brought up during the application process. Some thought the phrase just meant general trade-related projects. Most have no prior experience in the area.

They are lacking in accountants, which is really the main thing you want in this work, and many senior figures are from completely disconnected backgrounds.

Lots of the key members of staff trained to do the trade remedies work have simply drifted off to do other things - some to the Foreign Office, some to the Treasury. Those left behind are frequently denied access to information, held by the department, on which it based its decision to maintain the EU tariffs in the first place.

Staff who complain that the approach being taken is clearly inadequate report being frozen out and even dismissed. They describe the same cult-like mindset evident elsewhere in the government: a culture of forced support for the policy no matter the evidence, a hatred of criticism, and the belief that the solution to practical problems is to believe harder.

But the work they're being asked to do cannot be resolved by faith. It is incredibly detailed and complicated.

You need to send off massive questionnaires to UK and target-country companies, on everything from rainbow trout, to ironing boards, to fertiliser. You then need to work out the endless product subcategories and compile them for price assessment: Smoked trout, or freshwater, or frozen? Filleted or non-filleted? Then you need to conduct verification checks at UK and target-country factories, calculate factory price-point, UK price-point and shipping costs. That proves dumping.

Next you have to prove injury. You need to show UK companies have been affected. And not just that, but specifically affected by the dumping of these specific products from this specific country. If you claim the dumping is from Turkey, but it transpires UK companies are losing out because of fish from Denmark, then you have a problem. The same process goes for subsidies.

Get this wrong and we're in trouble. The domestic challenge will basically be a judicial review case. If things are done sloppily, they won't survive it. You need to show decisions were well taken, the law correctly understood, and sensible back-up measures initiated. If there are staffing errors, if you've misunderstood the law, if your reasoning does not withstand scrutiny, the case will go against you.

These are the kinds of things you look at if you really care about and want to protect British workers rather than just pay lip-service to them. Instead, we have ignored these challenges, acted more like a priest than a scientist, and dismissed those who raise objections. All the worst features of the Brexit debate are there, like DNA, from the very top, down to the smallest parts.

A Department for International Trade spokesperson said: "The UK's new trade remedies system has been operationally ready since before the original Brexit deadline on 29th March, to ensure that UK businesses would be  protected from injury caused by unfair trading practices as soon as we leave the European Union.

"We have built a team of over 100 staff that have highly relevant experience and have undergone a comprehensive training programme. There is a positive and engaged workforce and staff satisfaction rates are well above the civil service average."

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.

Latest entries