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Judgment day for Brexit

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UGLY scuffles greeted Tuesday morning’s prorogation of Parliament, shutting down debate on Brexit until 14th October. But even as the House of Commons went dark, two legal cases aimed at thwarting the prorogation were travelling in tandem through courts either side of Hadrian’s Wall.

In Scotland, a group of 79 claimants, led by Scottish MP Joanna Cherry QC, sought a ruling that the prorogation was unlawful because it was done (obvs) with the ulterior purpose of preventing Parliament from scrutinising the executive.

The England ’n’ Wales counterpart litigation was started by the Brexiters’ Great Satan, Gina Miller, and supported by interventions from Shami Chakrabarti, the Welsh and Scottish devolved Governments, and Sir John Major.

Proroguing Parliament is a power exercised directly by the Queen, theoretically on advice from the Privy Council but in practice from her Prime Minister. As such, it forms part of the uncodified exercises of executive power known collectively as the Royal Prerogative.
Historically, it was thought that the courts had no role in supervising any exercise of the Royal Prerogative. That presumption was partly overturned in 1985 when the House of Lords ruled that some, but far from all such actions could be subject to judicial review. The determining factor is not whether or not a decision it is an exercise of prerogative power, but its subject matter: does it touch on exclusively political business, particularly matters of ‘high policy’?

Looking at Boris’ decision to prorogue Parliament, the two courts reached opposed conclusions. In Edinburgh’s Inner House of the Court of Session, Lord Drummond Young pushed hard at the legal boundaries of justiciability of exercises of the Royal Prerogative, ruling that the courts can ‘decide whether any power, under the prerogative or otherwise, has been legally exercised’. It was up to the Government to prove they had valid reasons for the prorogation, ‘having regard to the fundamental constitutional importance of parliamentary scrutiny of executive action’.

Having concluded that it could interfere with the decision to prorogue, the court went on to do so. Unambiguously, unanimously, and expressing itself in terms you don’t normally find in dry decisions on constitutional law. The court gave Boris the mother and father of a kicking. This was ‘an egregious case of a clear failure to comply with generally accepted standards of behaviour of public authorities’. The purpose of prorogation was ‘to prevent or impede Parliament holding the executive to account…and to allow the executive to pursue a policy of a no deal Brexit without further Parliamentary interference’.

Down in London, a Divisional Court headed by the Lord Chief Justice couldn’t agree less. It strongly disagreed that ‘the jurisprudential stage has now been reached where there is no longer any exercise of common law prerogative powers which is immune from judicial review’. The court rejected Lord Pannick’s submissions (on behalf of Ms Miller) that this prorogation offended against a developing doctrine of Parliamentary sovereignty. It held that there were no legal standards against which Boris’ motives could be judged as improper, that this was all ‘high policy’ anyway, and that the Court had no jurisdiction whatsoever to review the decision.

Of the two courts, the Scottish Inner House is nominally the senior. It ruled that ‘the Prime Minister’s advice to HM the Queen and the prorogation which followed thereon was unlawful and is thus null and of no effect’. The Government did not ask the court to suspend this ruling pending appeal. As a result, Parliament is not and never was prorogued.

Both judgments are now the subject of conjoined appeals to the Supreme Court, which will hear the cases next Tuesday. This didn’t stop Boris in the meantime setting the attack dogs on the out-of-touch, elitist, enemy-of-the-people, bewigged Scottish Remainer gits. The Daily Mail exclusively revealed the disgraceful truth that one of their Lordships likes holidaying in France and that another has a morally contemptible taste for what Hitler would have termed Entartete Musik, namely jazz.

Cabinet Minister Kwasi Kwarteng piped up to have his crack at the beaks. He told the BBC that “many people are saying – I’m not saying this – but, many people are saying that the judges are biased. The judges are getting involved in politics”. He omitted the necessary qualification that the people saying this, many or otherwise, are chumps with a Barbary ape’s understanding of the constitutional position of the judiciary and the importance of the rule of law.

Part of Boris’ motive behind prorogation was, as the Scottish court found, to stymie the executive and avoid scrutiny. But it was more to force Parliament’s hand and to send Jeremy Corbyn charging, trumpeting, into the elephant trap of an early General Election. That part of the plan failed, for now. As things stand, the opposition has Boris boxed in. He can’t get a majority for an election, and Parliament lacks the courage and unity of purpose to do anything meaningful to stop Brexit.

Labour’s Parliamentary party is as divided as ever between an enormous Remain majority on one side, and the Lenin-capped loon and his grisly leadership team on the other. For them the EU is a bosses’ club designed to prevent the sort of Real Socialism that worked so well in the DDR, Venezuela etc. etc. Corbyn would not be even slightly disappointed if his prevarication on Brexit forced the UK off the no-deal cliff; he would blame the ensuing chaos on the Tories and stand a good chance of winning an election off the back of it.
If the Supreme Court sides with the Scots on Tuesday, what practical effect might that have? What is the purpose of Parliament sitting at all if MPs have nothing useful to do?

Parliament exists to legislate, not to block the executive. With a minority Government in office but not power, an election this Autumn is a virtual certainty, whether before or after 31st October. It is far from certain that this alone will persuade the EU 27 to grant the Article 50 extension Parliament has ordered Boris to seek, because If Boris wins a decent majority, Brexit, on whatever terms, will happen.
The current chicanery in Parliament is making no deal more, not less likely. There is a clear Remain majority in Parliament. They should use that majority to stop Brexit, rather than playing party political games aimed at damaging the Prime Minister’s credibility with Leave voters. If the Supreme Court allows Gina Miller’s appeal, MPs who oppose Brexit should defy both Boris and Corbyn, and move swiftly to legislate for a confirmatory referendum. Otherwise, trusting the voters means letting Boris have his election, now.

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A question of power

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by Matthew Paul

For anyone who stood as a candidate for ChangeUK in 2019, and watched over the course of the six-week European Parliament election campaign as mild enthusiasm on the part of the British public cooled into vague embarrassment before crystallising into disgust, it’s nice to see the Remoaners on the rebound. Brexit is back in the news, and causing big trouble for Boris Johnson.

“But Brexit”, you exclaim, “is done! Didn’t we have a General Election to sort that out? Didn’t our MPs vote for an oven-ready deal, back on 20th December last year?”

They did, but if the deal was supposed to be oven-ready, Boris left the plastic bag full of giblets inside and it is causing a terrible stink. Those unpalatable entrails are the ongoing and irreconcilable tensions between wanting our own laws and trade arrangements, and  maintaining an open border between the UK and the Republic of Ireland.

The United Kingdom is one single market; Wales cannot exclude or impose tariffs on goods from Scotland, England or Northern Ireland, and vice versa. This was the case for nearly three hundred years before the UK joined the EEC in 1973; when it did join, UK citizens swapped one single market of (then) 56 million for a single market that grew to ten times that size. The advantages of this, to our exporting economy, were obvious. 

Leaving that wider single market creates a problem, which is also obvious. There is a land border between the UK and Ireland, which international law (the Good Friday Agreement) says must remain open. If the UK uses its freedom from EU tyranny to strike new trade deals and to remove ‘foreign laws’ around food safety and product standards –which was the whole point of Brexit– it compromises the integrity of European product standards by allowing chlorinated chicken etc etc to pass, unchecked and untaxed, into the EU.

There is no reason why the EU should put up with this, and throughout Brexit talks the Commission made it clear that retaining an open border in Ireland is non-negotiable. There is only one straightforward alternative: a customs border in the Irish Sea between the island of Ireland and Great Britain. In June 2018, Theresa May was leaning in that direction, but this proposed solution –breaking up the territorial integrity of the UK to protect the integrity of the EU single market– was so detestable to the Spartans of the ERG that they passed a law specifically to stop May from doing it.

Fast forward to December 2019, and the same Spartans, cowed by Boris’ ruthless public execution of the 21 Remainers who rebelled against his Government’s Brexit policy, followed the PM like sheep through the Ayes lobby to endorse his oven-ready deal with an Irish Sea border as its defining characteristic. Boris said at the time that this would not create paperwork for businesses exporting goods from NI to the rest of the UK. He lied: the deal dictates that the UK keeps the NI/ ROI border open, implements the EU customs code in Northern Ireland, and obliges exporters to fill in declarations on goods going between NI and the rest of the UK.

Perhaps Boris just thought no-one would notice, even though everyone did. Perhaps he thought the EU would quietly back down on imposing the customs code. If this was the Government’s plan, it reinforces the impression that the Government is incapable of planning past lunchtime. The EU continued to insist stoutly on the terms of the deal being honoured. Finding himself well down in the game, Boris kicked over the card table. He presented the House of Commons with the Internal Market Bill, section 45 of which gives the Government power simply to ignore or override the Northern Ireland Protocol, to allow seamless trade and consistent regulation between all constituent parts of the UK. 

M’learned friends, blanching at the idea of tearing up treaties, were the first to cry foul. The government’s top lawyer, Sir Jonathan Jones, walked out of his job in despair. On Wednesday Lord Keen –the Government’s law officer for Scotland– resigned too, rather than adopt the intellectual contortions necessary to support the Bill. Even Robert Buckland, the likeable if impressionable Lord Chancellor, who previously mounted a sorry-faced hostage-video defence of Boris’s prorogation of Parliament and would be about as likely as the woolsack he sits on to rebel against Government policy, is shuffling uncomfortably. It’s not just the Remoaners, either; unless dark Lord of the Sith Michael Howard, and former Attorney-General and basso-profondo Brexithorn Sir Geoffrey Cox are now to be classed as Remoaners. 

Some of the pearl-clutching over the sanctity of international law is misplaced. As De Gaulle observed, “Les traités, voyez-vous, sont comme les jeunes filles et les roses: ça dure ce que ça dure.” The EU regards any emanation of international law that questions the acquis Communautaire with withering contempt, and owes zillions of dollars in WTO fines for breaching international law with state aid to Airbus. 

It comes down to a question of power, to a clear-headed assessment of whether or not you are going to win, and to whether the prize to be gained offsets the reputational damage of reneging on international obligations. Tearing up a treaty signed only months before is crass and looks weak. Kicking over the card table when you’re losing isn’t a great move if the other player then shoots you dead.

If the Government really wants to scare people about the effects of the Coronavirus, it could do worse than loop videos of Boris in December compared to Boris now. The hoo-ha over the Internal Market Bill is one more unforced mistake; the thickening miasma of incompetence and bad judgement is weakening this Government like a nasty dose of the Covid. On Tuesday, Boris fiddled with his phone through PMQs while Ed Miliband –Ed Miliband!– cut the hopelessly depleted Prime Minister to bits in front of a drolly amused House; Boris put up less resistance than a bacon sandwich.

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Opinion: The Big Question Facing Kier Starmer – Jonathan Edwards

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In the midst of the Coronavirus crisis the election victory of Sir Kier Starmer as Labour Leader didn’t achieve the column inches one would normally expect.  As is customary, I would like to wish Kier well in his role.  I can not claim to know him as a person having only conversed on a few occasions, however I have respect for his debating ability, his considered tone and his eye for detail.  I consider him a serious politician.

The challenges he faces are enormous of course.   Labour have now lost four Westminster elections on the bounce.  His decision making must quickly shift from efforts to unify his party to the far more important task of presenting a credible challenge to the Conservative party at the next Westminster election.

Labour has a defining choice to make, and this decision will have far reaching consequences for all political parties operating in the British State.  On the one hand, Labour could revert to its usual tribal inward-looking tendencies.  However, essentially this would mean writing off the next election as a part of a wider rebuilding strategy aimed at the 2029 election.  A stark admission as it would mean Labour having been out of power at Westminster level for twenty years at best.

Alternatively, Kier Starmer could acknowledge that Labour on their own will not be able to challenge the Tories for power at the next Westminster election.  This path would then require Starmer reaching out to all the other opposition parties in Westminster apart from the DUP.  I am talking about more than just coordination of parliamentary activity in Westminster.  In a first past the post electoral system we are talking about the need for non-aggression pacts, and a joint programme of government.  I would go as far as to suggest that the government itself would need to be a unity administration delivering on the agreed programme.

Parliamentary boundary changes makes the task even more pressing.  Whatever one thinks of his opportunistic politics, Boris Johnson has succeeded in unifying the right of the political spectrum.   However, the centre and left have a host of parties vying for support.  In a political system based for two horse races, the end result is brutal as we saw in December.

What sort of programme could Plaid Cymru, SNP, Green, Liberals, SDLP, Alliance and Labour unite around?  There would be little difficulty in agreeing a progressive economic and social policy platform.  A proportional voting system would be a must to enable all parties to compete equally in subsequent elections.  The big challenge for me seems to be the constitutional question when it comes to Scotland and Wales.   For Plaid Cymru and the SNP there would need to be a commitment for a fully Confederal system leaving only foreign affairs, defence, and macro-economic policy reserved – the sort of settlement promised by Cameron and Brown on the eve of the Scottish independence poll.  This should be supported with House of Lords reform into an elected Senate of the Nations of the British State.   Both Wales and Scotland would also require the statutory right to hold independence referenda at time of their own choosing.  This should be uncontroversial as it is the policy of the Labour Welsh Government.

This is the very simple choice facing the new leader of the Labour party.  Does he want to be Prime Minister, or effectively a plumber performing a re-patching job on a tired and insular party.

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What’s the point of immigrants?

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by Matthew Paul

What do points make? Passports! Or at least the opportunity to get yourself a visa stamp allowing you –if you didn’t win the lottery of life by being born British– the unmissable opportunity to reside and work in the United Kingdom post-Brexit.

Some suggest that the only skills required at the end of the transition period will be an aptitude at barbecuing rats, or the strength to push around Covid-19 death carts while ringing a bell, but in the event that the UK’s economic and cultural life carries on after Brexit more or less as before, we will still face a chasmic shortage of workers in the agricultural, hospitality and care sectors.

Britain’s population is getting older, and the disinclination many Britons demonstrate towards looking after elderly relatives means that unglamorous, low-paid jobs in the care sector are always available to anyone who cares to do them. British consumers demand fresh, locally-produced food, but display little enthusiasm to pick it themselves, and react with bewildered indignation when people who are less picky about their work come over ‘ere and pick it for them.

The Government are probably right that a lot of people who voted to leave the EU in 2016 did so, at least in part, because they dislike mass immigration. Such people are also thicker on the ground in the ‘red wall’ seats that Boris turned blue –for the first time in living memory– in December. The Government has promises to keep with these voters, and stopping people they don’t like coming into the country is a good deal cheaper, at least in the short term, than building thumping great infrastructure projects or finding 50,000 new nurses. Probably from abroad.

On Wednesday, Home Secretary Priti Patel released details of a points-based system, modelled on Australia’s highly restrictive immigration rules, to clamp down on all the EU citizens who have been coming over ‘ere etc etc. Three characteristics are basic requirements to qualify for a residence and work permit: an offer of work from an approved sponsor [20 points], a job at “appropriate skill level” [20 points], and the ability to speak English (ble mae’r Gymraeg?) at a “required level” [10 points].

Once those requirements are satisfied, an applicant clears the final hurdle by earning 20 more points. A salary above £25,600 might get you that, so long as the government-approved going rate for the job isn’t higher. Working in a designated shortage occupation is also worth 20. Educational attainment is less highly regarded; a bachelor’s or master’s level degree counts for nothing. Arty-farty doctorates get you just ten points; only proper PhDs in difficult stuff like AI and rocket science get you over the line.

The Government’s statisticians reckon that around 70% of the EEA citizens who have come to Britain since 2004 would be ineligible for a visa under the new rules. Foreigners aside, not many British people in Britain would now be eligible to come to Britain. Priti Patel’s own parents –who came to the UK from Uganda and set up a successful chain of newsagents– certainly wouldn’t. Hypocrisy and Priti Patel are not exactly strangers; when she wasn’t busy this week trying to illegitimise her own residency in the UK, she was on Sky News telling a confused Kay Burley, who had heard somewhere that both the Prime Minister and the Chancellor of the Duchy of Lancaster might, at some point, have dabbled a bit in drugs, that there is no such thing as dabbling in drugs.

To prevent against labour shortages, the Government means to draw on the current pool of around 3.5 million EU citizens resident in the UK (of whom 3.2 million have applied for settled status). To top up seasonal labour markets, there will be a limited scheme of 10,000 short-term permits for agricultural work. Given that 60,000 people were engaged in seasonal work on farms in 2018, less than 1% of whom were British, this looks some way short of enough. And this assumes full uptake, which can’t be guaranteed. Seasonal labour schemes don’t afford workers anything like the certainty and ability to plan their futures –working up from seasonal labour into more permanent and fulfilling work– that free movement allowed.

The Government’s projections of the effectiveness of its points-based system also fail to take into account the chilling effect of an overall hostile environment for immigrants. EEA migration into the UK has crashed since the electorate’s decision in 2016 to repudiate EU membership. A large proportion of the workers who arrived in the mid 2000s from accession countries have already returned home.

This doesn’t mean that we are actually going to run short of nurses in our hospitals, or that bums will go unwiped lower down the food chain of the care sector. We will continue to fill jobs in the NHS and nursing homes by plundering the medically qualified workforces of Asia and sub-Saharan Africa, which does neither us nor them much good. Exploiting the schools and universities of countries which can ill-afford to train doctors and nurses is a cynical and immoral way to staff the NHS. It also creates more permanent migration; unlike EU citizens who hop on Ryanair when they get fed up with the rain, it is far less likely that immigrants from the third world will ever decide to move back to their country of origin.

The ability to come and go, and to move around the continent in search of work has underpinned the UK’s dynamic jobs market for nearly twenty years. To give Brexiters what they want in seriously and permanently reducing unskilled migration into the UK, we will have to give them what they almost certainly don’t want. Low paid work in the agricultural and hospitality sectors. Whipping away benefits or tax credits if they turn down that sort of job. In the immortal words of the man who this week tweeted his outrage from a long passport queue at Amsterdam’s Schiphol Airport: “This isn’t the Brexit I voted for.”

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