A quick look at the Brexit White Paper

The government White Paper this week charts the course the government intends to take to achieve the second leg of Brexit following the referendum result.  This should be to provide a ‘safe and beneficial exit’.

In effect, the government is not attempting to reach a withdrawal and settlement of the new relationship with the EU within two years after triggering Article 50, but is aiming to reach a settlement of the ‘framework’ within two years and thus leaving all the details for many years in the future.

It seems the government is splitting the Brexit job into two parts.

Job One:   Leaving the EU is being interpreted as negotiating a ‘framework’ within which the detailed negotiations will sit.

Job Two:   Detailed negotiations after the UK formally leaves the EU with a ‘framework’ settled.

So the question is this – can the government negotiate the details after formally leaving the EU with a framework agreement but in which framework the details are that each ‘chapter’ of the interface comes up for negotiation maybe years later?

In a way, the government is agreeing with the basic plan offered by the Leave Alliance during the referendum campaign – that the job is too big and complicated to do in two years.  The Leave Alliance solution was to remain in the EEA for some years, thus parking trade and other issues.  The government’s solution is to agree a ‘framework’ within two years and carry out the detailed negotiations later.  In this way it can argue that the UK has left the EU within two years.

Of course the first problem is then that the EU may well reject the splitting of the negotiations into ‘framework’ and ‘details’ because this is a new concept and because the ‘details’ are to some extent the ‘framework’.

Will the electorate and the Conservative Party accept that the UK will for most purposes still be in the EU after two years and the full withdrawal will take many years?

Also, by proposing to leave the EEA single market the government has added to its negotiating burden as it will have to secure trade agreements with the EFTA countries.

What happens if this course is pursued?  It depends on how the EU reacts.  It may go along with this in order to get the UK out of the formal political structure.  It might also say that the idea of separating the ‘framework’ and the ‘details’ is not realistic and put forward a more radical programme of detachment.

The Leave Alliance proposal would have been more certain, quicker, more attractive to the EU and would have more electoral support in the UK.  It would rest on off-the-shelf proven solutions.  The government’s proposals are the opposite of all these sensible proposals, are far more risky and uncertain and will involve the UK in many EU activities for years to come.

No, we are not behind the Mishcon de Reya legal bid

You may have read that Mishcon de Reya, a prominent firm of solicitors, is launching a legal bid to determine who (and how) decides the removal of the United Kingdom from the European Union.

Just before the referendum, and following David Cameron’s statements about intending to trigger Article 50 shortly after the referendum, I examined this matter and I reproduce two emails which give the essence of the arguments. (They are emails and not polished political or legal statements.)

(June 2016)

Crown prerogative and its exercise are an opaque area of the British constitution. Generally legal treaties have been regarded as only one factor in the British government (and here I mean a majority of the Cabinet), taking any foreign action. The most prominent occasion was the declaration of war in August 1914. It is true that Edward Grey made a speech to parliament on August 3rd 1914 which is often quoted. This speech did not define the trigger required for war, nor was there a vote in the House of Commons. What did happen was a massive ‘spin’ operation in Parliament and the media to define the Asquith government’s confusion as ‘statesman-like’. The Asquith government was saved by the Germans openly invading Belgium. As Asquith wrote to Venetia Stanley on August 4th 1914, “We got the news that the Germans had entered Belgium … This simplifies matters, so we sent the Germans an ultimatum.”

This ultimatum was never put to Parliament for pre-approval.

It is pretty clear that the new Prime Minister will need some ‘simplification’ shortly after taking office.

The bottom line is this:

The new Prime Minister must ensure that the UK Parliament did not reject his (her) notification as not being within the constitutional requirements. Quite evidently the defeated Remain groupers in Parliament could hide behind this. At first sight, it would therefore seem a new Prime Minister should carry a short bill or possibly a resolution that ‘Parliament should take note of the result of the referendum that Parliament called and that the government should implement the result and that it should notify the EU of its intention’.

Any opponents of democracy would be flushed out.

Emails dated 21-22 June 2016:
“Can Cameron decide to make an Article 50 notice to withdraw while sitting in his bath?

1) “Any member may decide to withdraw from the Union in accordance with its constitutional requirements”. The “withdrawal” is clearly the repeal (or modification) of the ECA Act of 1972 but what is, and who takes, the decision to withdraw? As the decision to withdraw is effectively the same as the withdrawal under Article 50, this seems to require an Act of Parliament.

2) We know the Treaties will cease to apply two years after notification (unless otherwise agreed) so who gives the notification, and when?

It seems to me that “notification of its intention to withdraw” means also the decision to withdraw has been taken constitutionally and that is the same as withdrawal, although the decision to withdraw and the withdrawal would take place at different times. Therefore, the notification cannot be given until the decision to withdraw has been taken. Only an Act of Parliament can withdraw and, therefore, only an Act of Parliament can decide to withdraw, with an effective later date, or no date, determined.
Therefore, no notification can be given until an Act of Parliament takes place.”
– – – – –
‘If I were the post-Brexit PM, I’d trigger Article 50 straight away’

Well, the point of the note was to explore whether a post-Brexit PM could do that -in his bath! or by a media leak or a PR statement.

Surely any such action would immediately invite the enquiry as to whether this ‘notification’ complied with the UK’s constitutional requirements. Alternatively the EU could say, well we assume that the British PM knows the UK’s constitutional requirements better than us so that’s it- the notification is a commitment and UK leaves the EU in 24 months, that is done and dusted, now we are off to Mykonos for 2 months and let the British PM deal with the fallout from his actions e.g. that the UK Parliament would reject his notification as not being within the constitutional requirements since the British PM cannot withdraw Parliament’s assent to the ECA while sitting in his bath or indeed in any posture.

‘No point in enacting post 24th June legislation’. As you know the Leave Alliance does not think we should abandon regulatory convergence for several years as it restricts the possibilities for the UK. Also a feature is that we would repatriate or enact as UK law all EU relevant legislation since 1973 exactly the same as Ireland and India did specifically and the American states did by implication after independence. I mean all pending cases in the North Carolina courts in 1783 under the Theft Act did not cease because the UK recognized North Carolina as independent, they simply carried on while there were some immediate changes at the constitutional level, that is what I expect to see in the UK.

It is then worth looking at each area of law and policy because some such as Foreign Policy would have hardly any legislative problems while in others such as the CAP this could carry on as it is for some time while the direction was transferred from Brussels to London-however a lot of the UK’s trade is food products so that would have to be worked in.

So to maintain regulatory convergence the UK would enact post-24th June EU laws

Update: November 4th 2016

It appears that the judges have arrived at the same conclusion, albeit using different arguments against the use of Crown Prerogative and citing the removal of rights from British citizens. This seems to me a rather weak line of argument when one considers that the declarations of war by Prerogative in 1914 and 1939 certainly removed the rights of British citizens.

However, Asquith was never pressed by Parliament for a vote of approval for war to take place because of the ‘simplification’ caused by the German invasion of Belgium.

Up to now, the new government has had ample warning of this problem and could have taken the opportunity in July of passing a short bill or a motion as laid out above.

It will now have to scramble to catch up but then it is clearly not yet ready to enter a negotiation so perhaps a further few months’ delay will be beneficial

(Please note that Futurus has published a new briefing, Should the uk stay in the EEA? It can also be accessed from  the publications page of the website.) 

It’s just obvious!

A series of post-referendum briefings.

Milton Friedman is quoted as saying that “It’s just obvious but you can’t have free immigration and a welfare state”.

Indeed.  Much of the conventional political thinking of the last twenty five years has suffered from ignoring “it’s just obvious”.

Here at Futurus, we have tried to explain why “it’s just obvious” about many political and economic matters for over fifteen years.

“It’s just obvious” that the UK’s participation in the Exchange Rate Mechanism of the EMS in 1990 would disintegrate.

“It’s just obvious” that the UK would never join the euro.

[Why Britain will not join the single currency, Futurus publication, 2002]

“It’s just obvious” that Scotland will never become independent on the basis of SNP proposals.

[The Scotland Referendum and the Lessons for 2017, Futurus position paper, 2016]

“It’s just obvious” that immigration, without superior capital or superior skills, must impoverish the receiving country.

[Warning: Immigration Can Seriously Damage Your Wealth, Social Affairs Unit publication, 2008]

“It’s just obvious” that the UK would vote to leave the EU.

[Nostradamus, Futurus Briefing, July 2016]

“It’s just obvious” that most professional economists and central bankers have lost touch with the accounting framework on which all economics is based.  Contemporary economics group-think is based on single entry bookkeeping – the road to disaster.

[Thinking in Decades and Centuries, Civitas Review, 2012]

So we are now faced with another “just obvious” situation.

“It’s just obvious” that the UK government’s Brexit plan should be to have a controlled exit process.  This should be initially based on retaining EEA membership with the provisions of the EEA used to control EU migration.  Legislation, deemed EEA relevant by the EU and by the EFTA-EEA states, comprises the Single Market (called internal market in the EU Treaties) and is about 25% of the entire EU acquis.

[Leaving the EU:  It’s not just about future trading arrangements, Futurus Briefing, September 2016]

Leaving the EU – a Futurus briefing by Anthony Scholefield

Implementing the voters’ decision for Brexit is a huge task.  This paper analyses the way forward and recommends the most advantageous political and economic means of controlling the process.

The paper looks at the reasons why people voted to leave and summarises the debate since June 23rd. It considers how the concerns of business can be squared with a desire of many voters to restrict immigration from the EU.

Nostradamus lives! Anthony Scholefield’s projections and the actual result

On 26 March, I circulated a paper entitled ‘Projection of EU Referendum Vote’ in which I forecast how all the major political party supporters would divide up between Leave and Remain, based on an ORB poll around that time.

I concluded “Opinion is now solidifying … For these reasons, I am calling the result of the referendum now – a win for Leave – by about ten points.”

“We must remember the referendum is not the end, it is a stage, and what happens afterwards is what matters.”

“It is inevitable that, after a Leave win, our proposals must be the only safe, sane way to execute withdrawal.”

I got some forecasts wrong.  The turnout was much higher than I forecast but the forecast for lower than average turnouts in London and Scotland was correct.

The key was indeed the moderate Conservative voters.  The Leave side did not quite get the 60/40% projection of vote for Leave among Conservative voters, but nearly got there.

Anthony Scholefield poll projection-page-001

My projections were accurate and, in most cases, very close to the result.

Why?  Around 45% of the electorate had already decided, according to Ashcroft, before the beginning of 2016 so it was a reasonable inference that the late deciders would approximately decide in the same way on such a long running issue – ‘Opinion was solidifying’.

  • There was no last minute surge for Leave among Labour voters. If there was a slight ripple, it was among SNP voters who were slightly more in favour of Leave than I estimated.
  • Self-government was far the biggest motive for the Leave campaigners while the economic arguments were the foremost motivator for Remain.
  • The percentages are quite striking. Four out of five parties (five out of six in Scotland) supported Remain and, except for the Conservatives, the party leaders DID carry 63-75% of their voters with them.  It was only the Conservatives who voted against their party leadership.
  • The division in the Labour vote, 37-63%, was barely changed from the March projection of 35-65% or the ORB March poll of 39-61%. The idea that there was a sudden awakening of nativism of the ignorant being conned by right wing fanatics is simply wrong.  It did not exist.
  • The official campaigns on both sides seem to have been completely irrelevant. There was no movement of significance in the last three months.  Both campaigns were negative and scaremongering.  Both dealt in dodgy statistics.
  • The quiet determination of the ordinary electorate to make a considered and thoughtful decision on a major issue and turn out in staggering numbers was, however, impressive and humbling.
  • Finally, 81% of those described as “in full time education” voted to Remain, quite extraordinary. Youth seems conformist, ultra-conservative.

We have won but not by much – implications

Anthony Scholefield wrote this piece a week or so before the referendum. It considered the possibility of both a narrow win or a narrow lose for our side. Now the result has been announced, it is interesting to see how accurate these thoughts will prove.

My paper entitled ‘24th June’ considered what might happen after Leave won the referendum.

The government, Parliament and the people, will be looking for urgent leadership.  After all, ‘scoping’ negotiations will have to begin in a few weeks and an Article 50 Notice served within about a year (presumably all now agree Article 50 is the way forward).

An absolute necessity is for a clear aim, a clear plan and a clear timetable which can be put forward.  (It should have already been done.)

The aim is to decide what exactly in the EU we need to leave and where do we want to go.  The plan is how we execute the aim and the timetable is how we execute the plan.

Vote Leave has said it is up to the government to put forward proposals but the government will be in a state of shock and will be looking around for ready-made proposals as to what to do.

Otherwise it will dissolve in total incoherence.  The Opposition Westminster parties will be in a similar position and are completely bereft of ideas to cope with this situation.

I believe we should be thinking now of what action is necessary to take the initiative.

Are we ready to do this and to form the structures to do this?

We need a committee of all the various Leave groupings to meet and adopt a plan and get this endorsed by a conference within a month – but it needs senior political leadership.  Global Britain has done some preliminary thinking on this.  EuReferendum and the Leave Alliance has set out concrete proposals.

(Anthony also considered what a narrow defeat would have looked like. This was his analysis)

There will be extensive post-mortems but the critical decision is this.  Frank Field has said on ‘Question Time’ that whatever the result we must accept it.

But this misunderstands the nature of the referendum.  A referendum is a mere political instrument to achieve a political goal.

The basic political fact is that Remain can win a referendum but, as Enoch Powell said on the day after the 1975 referendum, such a result “is no more than provisional”.  The reason is that a supranational government in the EU is incompatible with a free democracy.  Powell specifically compared the result of the 1975 referendum to the 1938 Munich Agreement and said either depended on ongoing parliamentary and popular support to remain valid.

The aftermath of the 2016 referendum will be quite different from the aftermath of the 1975 referendum.  In 1975, the electorate did not know much about the EU and, whatever different opinions were held about it, it did not seem threatening.  Now there are four existential forces at work in the EU.  They are the ongoing crisis in the Eurozone, the migration crisis, the possibility of cross-border terrorist atrocities and the determination of the Eurozone countries (or some of them) to push forward to far greater integration leaving the UK either bobbing in their wake or remaining one of two or three non-eurozone countries in a European Union absolutely dominated by the eurozone and its problems.

Moreover there will be a 40% plus irreconcilable part of the British people who will simply not accept, except in the short-term, that the referendum settles anything.  That is why calls for ‘constructive engagement’ or ‘acceptance of the decision of the people’ are wrong.  Parliamentary and public support for EU membership could vanish very quickly if the electorate concluded the wrong decision had been made at the referendum.

Almost immediately, the fact that almost half Conservative MPs have supported the Leave campaign means the government will be in a political minefield.

What happens to Cameron’s ‘reforms’?  Are they likely to be even passed through the European Council?  Are they likely to be derailed in the European Parliament?  What will Cameron do then?  The immediate future is fraught with difficulties.

Looking further ahead, as new Brussels’ legislation turns up in parliamentary proposals or executive implementations, how will the almost 50% of Conservative MPs, who supported the Leave campaign, vote on these?  Some may be passed with the help of Opposition MPs but how long can this continue?  How can the leaders of the Leave campaign meekly vote through more Brussels’ legislation?

There is already talk of a second referendum and a narrow win for Remain will make this most likely.

The referendum result to Remain depends for its validity on on-gong parliamentary and popular support and events in the EU will drain this quickly.

So, a Remain vote will settle nothing.  The election of Trump may change the scenario as well.

It seems a coalition of the Leave campaigns, broadened to include all other supportive organisations, should remain in being as a second referendum or a Tory volte-face will not be long in coming.

The 24th June

Clausewitz

In discussion with a very senior leader of the Leave campaign, I mentioned that we ought to prepare for 24th June and plan now for the way ahead in the event of a Leave win.

His answer was that he had a referendum to win and was concentrating entirely on that.  Yet this reply was a contradiction of basic strategy as put forward by Clausewitz, which was that “war is simply a continuation of political intercourse, with (the addition of) other means” [mit anderen mitteln].  In this case a referendum is also a continuation of politics with other means.

To hold a referendum has never been an aim in itself and it is a mere constitutional instrument to achieve a political goal or perhaps what is better described as a return to political reality.  Remain supporters can win many referendums but, as Enoch Powell pointed out the day after the 1975 referendum, these results “are no more than provisional”.  The reason is that a supranational government in the EU is incompatible with a free democracy.  Enoch Powell specifically compared the result of the 1975 referendum to the 1938 Munich agreement and that either depended on parliamentary and popular ongoing support to remain valid.

So, even when absorbed in the practicalities, polling and strategy of the referendum campaign, those who want to Leave the EU should already be looking ahead to what happens on June 24th and afterwards, assuming a Leave majority in the referendum.  (The interview between Robin Day and Enoch Powell in June 1975 is worth reading in full and has been helpfully put up on the YouGov website.

‘The Critical Path’ out of the EU

In 2014 and 2015 I produced some papers outlining the Critical Path to leaving the EU based on the ‘Stepping Stones’ strategy put forward by Sir John Hoskyns, which formed the basis of much of the early Thatcher government and also on policy fundamentals put forward by Gladstone in one of his speeches.

“The critical path ahead centres on two areas: winning a referendum to leave and actually organising an effective and beneficial departure from the EU.  These two matters are interrelated.”

Yet there has been, quite naturally but wrongly, an overwhelming focus on winning a referendum and little focus on the “effective and beneficial departure”.

I also noted how, in Switzerland, those winning a referendum against the advice of the Swiss government, took notice of three matters.  These were:

    The clarity of the aim behind the majority vote;

    The meshing in of the referendum result with existing laws and treaties, and

    Sometimes a timed longstop for action.

Switzerland has been having referendums for over a century.  They know the dynamics of a referendum.  Should we not take account of their approach?

Veering off the ‘Critical Path’

I noted that the Leave campaign (Vote Leave and Leave EU) all veered off the critical path and ignored the Swiss experience.

The UK Constitutional Situation

Leaving the EU has to be implemented by an executive and a Parliament whose members are likely to have voted the other way.

It is not simply a case of replacing the existing government by a government which would be made up of supporters of ‘leaving’.  That putative government, and especially a Parliament to support it, does not exist.  This is unlike the situation in 1975 when Harold Wilson made it plain he would implement either an IN or OUT vote and would be able to command the votes in Parliament to do so.

What is being asked is for the executive and the legislative to implement a crucial and massive change which they have by substantial majority voted against.  A decision to offer ‘no plan’ to leave will simply mean the ‘plan’ decision will be passed to the government who can interpret the decision in any way it wishes.  The present composition of Parliament would facilitate this.

The 24th June

At present, the official Leave campaign is not offering a clear cut plan and strategy for post-referendum action.  The reason given is that the Leave campaign will not be organising or putting into effect Britain’s departure but the government will be doing so.  Some have commentated on the absurdity of this argument, which would make think tanks, the policy arms of political parties and, indeed, the ideas of individual politicians, worth less and futile unless they were part of the government.  It is said the official Leave campaign will close down on June 24th.

This is poor strategy even in the context of the referendum.  To offer a clear aim, a clear plan and a clear timetable is precisely what Swiss referendum campaigners do.  It demonstrates leadership and that will attract voters.

Moreover, on 24th June this becomes an acute problem.  With no clear aim, no plan and no timetable offered by Leave, the decisions will be passed to the government and to Parliament, which has an overwhelming Remain majority.

Convulsions

It is not possible or fruitful to consider the party political outcome, the future of the Prime Minister, the possible discussions within the Conservative Party or all the other excitements of Westminster.

However, we can be certain that the government will formally accept the result and, in Parliamentary debate, will probably put forward a motion to accept the result and work towards it but that is all it will commit itself to do.

What happens then?

As mentioned, the official Leave campaign will consider its task completed and will leave the organisation of an effective and beneficial departure to the government.

What would Parliament do?

Immediately there would be a cacophony of proposals, some from various factions within the movement, others, perhaps put forward by those unfriendly to Leave, designed to brake or trip up the departure process.  The crisp aim, plan and timetable of the Swiss will be lost altogether.

Among the alternatives put forward will doubtless be a call for more and better negotiations.  Others will, no doubt, say that a narrow majority is not sufficient to do more than allow some tinkering around the edges of the present EU status.  Somewhere in the mix may be proposals for another referendum.

Fundamental questions, such as agreement on whether the UK should stay in the EEA and whether the UK can stay in the EEA or whether the UK would have to re-join EFTA, must be cleaned up before an Article 50 notice is served.

The potential for a Parliamentary and governmental quagmire is now really present.

And it all comes back to the lack of the clear aim, a clear exit plan and a clear timetable.

Conclusion

We are trying to win a referendum and win it in such a way that a pro-EU Parliament must carry it out, as in Switzerland.

The way to do that was to have a clear plan which was the electorate’s instruction to Parliament.  This should have been specifically put forward.  We are not in a competition for establishing the very best theoretical basis for Britain in a post-EU world, we need a clear, tested, business-friendly plan which should take on the aura of inevitability such as preceded the establishment of American and Indian independence.

Plainly, the Leave campaign has not done this.  But on the 24th June, the need for such a clear plan will become an existential necessity otherwise all the hard work, the campaigning, the leaflets, the speeches, the polling, the banks of telephone workers and social media contacts will be frustrated.