Mrs Maychiavelli. Has the prime minister breached the Ministerial Code?

David Dring takes a look at the potential constitutional impropriety of Theresa May’s conduct on Brexit, and considers whether she may even have breached the Ministerial Code. David is a Conservative Party member and active contributor to the Bruges Group’s Facebook discussion group. 

“Fair is foul, and foul is fair

Hover through the fog and filthy air”Macbeth, William Shakespeare

There is an unpleasant cloud of distrust hovering over Westminster.

We are now at the point in time when our prime minister and government should have been emerging triumphant from the Brexit negotiations, delivering upon a vision of a confident new global Britain. Theresa May could have been taking her place as the champion of free trade in the modern world.

But sadly this is where reality kicks in.

We could not be further from the goals outlined in Mrs May’s speeches: Lancaster House (January 2017), Florence (September 2017), and most recently Mansion House (March 2018).

The Department for Exiting the European Union (DExEU), having worked for months to the guidelines outlined by those speeches, suddenly discovered that there was a new plan. The so-called Chequers plan emerged in July 2018, devised behind the backs of DExEU ministers.

Worse still, this Chequers plan was presented to Cabinet less than 48 hours before being formally discussed, barely leaving Cabinet ministers enough time to comprehend the full implications of the text. During the Cabinet discussion it was suggested that an amendment be made to one area of the blueprint, to which the PM reportedly responded, “No, that’s not possible, because I’ve already cleared it [the existing text] with Mrs Merkel.”

Unsurprisingly, both Brexit Secretary David Davis and Brexit minister Steve Baker resigned within hours of this discussion, with Foreign Secretary Boris Johnson following Davis out of the Cabinet a day later.

Discussing the UK’s negotiating strategy with a foreign leader before presenting the plan to Cabinet, as well as bypassing the Secretary of State responsible for Brexit, would not only be inconsistent with the protocols of Cabinet government. It would also represent a breach of the Ministerial Code.

The UK’s lead negotiator, Olly Robbins, in his appearance before the Exiting the European Union Select Committee in July, confirmed that the Cabinet Office’s Europe Unit had prepared the Chequers plan without the knowledge of the Secretary of State, but with the full authorisation of the prime minister.

Fast forward to November and the publication of the draft Withdrawal Agreement. The old adage suggests that “history repeats itself” – and how right it was.

Just as with the previous Cabinet bounce of Chequers, the PM delivered the draft Withdrawal Agreement in a glorious 585 pages of unadulterated legal gobbledygook, and attempted to secure Cabinet approval within just hours. She despatched Secretary of State Dominic Raab to Brussels to sign off on the agreement. But Raab was not to be bounced quite so easily. Within hours, there was yet another Cabinet vacancy for Brexit Secretary.

Raab has stated his reasons for resigning very clearly in his subsequent media interviews. In particular, he cited the addition of key clauses to the agreement which he had neither seen nor authorised. If Raab’s account is accurate, it would appear that the PM again breached the Ministerial Code, by failing to consult with her Secretary of State.

This conduct has attracted the attention of a number of concerned MPs. Sir William Cash, chairman of the European Scrutiny Committee, asked a series of questions to the PM throughout November following her Brexit statements to the House. Sir Bernard Jenkin did the same at the Liaison Select Committee on 29 November [at 1:23:00 in video].

However, the prime minister has thus far refused to answer or even acknowledge any question of impropriety. This has led the European Scrutiny Committee to launch an inquiry into the conduct surrounding the negotiations.

The prime minister is also under fire for refusing to publish in full the legal advice to the Withdrawal Agreement. This is likely to result in a charge of “Acting in Contempt of Parliament” to be sent to the Speaker in the next few days.

The principles enshrined in the Ministerial Code have been the cornerstone of good governance, ethics and integrity for generations. The idea that any PM would attempt to override the provisions of the Code is abhorrent.

If it is proven that this has indeed taken place, then Mrs Maychiavelli’s place in history will be assured.

Arm Yourself for the Fight for Brexit

CIB has repeatedly stated that the battle for Brexit is far from over. And so it has proven with the publication of May’s deadly deal with the EU. It is even worse than we feared. The deal will lock us in to the EU in all but name with no escape mechanism. It will be enshrined in an international treaty, so cannot be repealed or revoked without the EU’s agreement. And it will hand over important aspects of UK military policy to EU institutions.

It is therefore more important than ever that we arm ourselves with the resources to fight for the Brexit we voted for in June 2016. CIB heartily endorses the following useful resources from Brexit Facts4EU.Org.

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The Brexit Battle Pack

The Brexit Battle Pack is endorsed by 14 Brexit organisations, including CIB.

Writing to your MP or the media? Follow the Battle Pack’s essential advice to ensure you have maximum impact and successfully correct bias. The Battle Pack also contains important contact links and a large number of practical tips.

Brexit Facts4EU.Org currently have a major campaign underway as part of the Battle Pack, with simple letters that can be printed off and sent to MPs.  They are urging everyone to do this now.

Access is completely free here.

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The BREXIT INDEX

This is the most definitive, indexed source of facts on the EU and Brexit available anywhere.

It contains hundreds of factual articles, in 19 main categories and 97 sub-categories. The facts are all researched from official sources – mostly from the EU itself.

It enables you to find the specific information you are looking for with just a couple of clicks.

Public access is free, and additional levels of access are available from £9.99 for four months.

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Brexit Facts4EU.Org also has a news page where you can read their original articles each day. They are supporters of CIB and have previously published articles by our chairman Edward Spalton.

Arm yourself for the battle ahead!

Brexit Facts4EU.Org has been active since before the referendum and focuses on research, analysis, and publication of easy-to-read facts from official sources in the EU, UK and national governments, and international bodies. It does so in order to inform the debate and counter propaganda.

May’s deal: “Out of Europe but still run by Europe.”

Former CIB President George West gives his personal reaction to the prime minister’s deal and the political fallout, and concludes that the battle to leave the EU has only just begun.

Theresa May says that if Parliament does not accept her Brexit deal we will be back to square one. If only that were possible – but starting with a Leave-voting prime minister.

To get her way May resorts to bullying tactics and deceit, just as Edward Heath did in 1972. Con O’Neill, the civil servant who led the UK’s negotiating team for Heath, summed up Britain’s negotiating position as “swallow the lot, and swallow it now.” May is now expecting parliament to do the same.

She tells us the deal is the best she can get. That alone should put a stop to her political career and further damage to the UK.

Dominic Rabb boldly told us that the Withdrawal Agreement is worse than staying in the EU. That should enhance his future political career.

Lucy Harris, founder of Leavers for Britain, appeared on the BBC’s Politics Live programme on Friday. When asked to choose between the draft Withdrawal Agreement and staying in, she wisely chose not to be drawn in to such a false choice.

If only Nigel Farage and UKIP leader Gerard Batten had kept silent, rather than trading blows on internal UKIP business in public.

What are loyal UKIP supporters to think now of Farage, who opened his mouth at this critical stage and attracted more post-Henry Bolton bad publicity? And what are UKIP supporters to think of Batten’s ill-advised choice of Tommy Robinson as a special advisor and speaker for his Brexit rally, in a bid to attract Tommy’s followers?

The campaign to actually leave the EU is nowhere near an end. It is a very long time until 20XX – the year that the transition period can potentially be extended to. It is even longer until ‘never’.

Where is the new effective leader of the Brexit movement to extricate us from this mess? Quite possibly Lucy Harris, who is of an age to appeal and talk sense to the younger people who have grown up exposed to propaganda myths such as that the EU has “kept the peace in Europe”.

Mrs May seems to be intent on earning her place in history alongside those other notorious Conservative Europhile traitors, Edward Heath and ‘green peas’ John Major.

For years we have been fed dishonest political slogans to trick us into accepting the forward march of EU integration. We were told we must not “miss the train”, and that we could be “in Europe but not run by Europe.” A more honest slogan for Mrs May’s deal would be, “Out of Europe but still run by Europe.”

After 46 years of campaigning to leave the EU it seems to me that the battle has only just begun.

Worst horrors of the draft Withdrawal Agreement

CIB committee member and director of the think tank The Red Cell Dr Lee Rotherham explores some of the worst horrors of the draft Withdrawal Agreement. This is an abridged version of an in-depth analysis that was originally published by the Telegraph on 17 November 2018.

The single greatest problem with May’s transition treaty is that it doesn’t guarantee the transit. It leaves us with the prospect of greater limbo than ever.

NO EXIT

The risk of us remaining in transition purgatory forever is because, ironically, the draft settlement does not contain a neat equivalent to Article 50, the EU’s escape clause. When Article 50 was being drafted, Eurosceptics challenged whether two years was too long and risked seeing a country’s decision to leave overturned by a determined Establishment rear guard. That was prophetic then, and prescient now.

Instead of a secure time lock, this transition deal has Article 132 – a name that will forever live in treaty infamy. On the assumption that getting an end deal will be a tad difficult, perhaps because at least one of the two parties involved doesn’t really want it, it allows for a mutually-agreed one-off extension of the transition period. This, critically, will extend arrangements until the specified date of “31 December 20XX”.

The negotiators might at least have deployed a little unbridled optimism and suggested that the UK’s regulatory servitude and imprisonment in a second-rate customs union might end sometime before 2099. They could at least have assured us that we’d be out within a decade and written 202X.

In other words, Article 132’s key significance lies in making a temporary deal potentially a permanent one.

There are, unfortunately, a lot of problem areas in the text and any audit can only trowel the surface. So let’s briefly focus on some of the ones that haven’t hit the headlines.

NO SAY

Article 128 covers the rights of the UK Parliament during transition, or more properly describes what will be stripped away. Currently, Westminster’s part in the EU system is not much more than being on the Christmas card list. Now, MPs even get removed from the consultation process, and are left with marginal engagement at the bottom of the food chain as legislative plankton.

The Remain campaign complained that the ‘Norway option’ was a sort of Fax Democracy, notwithstanding the limited safeguards contained in it. This new settlement now generates its Platonic ideal form.

NO CONTROL

EU paramountcy is extended to the court system. Under Article 162 the Commission has the right to proactively intervene and send legal opinions to UK judges to better guide them, and indeed the option of turning up in person. Article 168 keeps any disputes between the UK and EU executives in-house and inside the EU systems, while Article 174 makes arbitration by the EU judges binding.

Then there is the Common Fisheries Policy. It’s a bad enough pointer than the skeletal draft objective treaty state involves undefined “future shared stocks” and the prospect of joint management and shared stocks within UK waters. Meanwhile during transition, the CFP continues. Worst, it seems quota will be set by the EU27 without the UK in the room. DEFRA can supply comments: the most that can be said is that the deal does not rule out expletives.

Then there are the ranging environmental protection clauses. Here, EU negotiators have packed a policy suitcase to its seams. It packs in potentially burdensome legislation across everything from emissions to public participation via global warming. The Commission might at least have had the decency to admit that its motivation was to make sure the UK doesn’t become more competitive.

Given the track record of the Home Office (and indeed of a past Home Secretary now in higher office), it should come as no real surprise that the UK will also remain locked into a range of texts agreed by that department, including the European Arrest Warrant, that have vexed Conservative backbenchers over many a year.

DEFENCE INTEGRATION

Considerable uncertainty litters the deal with respect to Defence. The EU has now picked up the pace in the race for a Common European Defence, in which it sees the US as an emerging competitor. This policy is being pursued in several parallel strands. The UK has partially ducked out of some of them, but this draft leaves the UK at considerable risk to others, especially over some of the institutional arrangements that have yet to be finalised as one of the end ‘pillars’. An immediate risk is the push to integrate and slash national defence industries, since these would still come under the trade aspects of this deal. Moreover, policy here is centred on the work of the European Defence Agency that the UK will stay closely engaged with. More MPs need to read the papers from campaign group Veterans for Britain disentangling this complex spaghetti.

THE MONEY

Then there’s the money aspects of the deal. For such a weighty issue, the £39 billion – or as we should now style it, the “single financial settlement” – is rather mute. Given the vast scale of EU waste and overspending, that nevertheless continues to get paid year after year, perhaps it is too much the negotiators’ guilty secret. But someone might at least have thought about asking for a tenth of the assets, rather than just signing up to a share of the liabilities.

These liabilities obviously include the wildly generous pensions destined for Lord Mandelson and his fellow peers. Pensions has long been a thorny issue. EU auditor Marta Andreasen discovered epic levels of unfunded off-the-books liabilities, while MEPs had to be shamed into freezing admissions to their half-funded voluntary second pensions scheme. The UK should pay up for its staffers; however, there are half as many of them employed as there should be by share of EU population, and the figure on some key departments like fisheries has been under two percent. So in effect, the UK taxpayer under these terms looks lumbered with pensions for staffers from EU27 countries too.

Taken as a whole, it’s a dismal deal. The irony of it all is that the EU itself has passed consumer laws, precisely to prevent dreadful time share schemes like this one.

 

Dr Lee Rotherham is Director of think tank The Red Cell. He was Director of Special Projects at Vote Leave.

FROM DARK NOVEMBER MORN TO APRIL EVENING

In the morning dark of Armistice Sunday I was walking home from the village war memorial where at six o’clock we had listened to a lone piper playing “The Battle’s O’er”. In a reflective mood, I thought of the contemporaries of those names inscribed on the memorial, the men who had come home from both wars whom I knew as uncles, great uncles, teachers and others who had impressed and influenced me.

Characters of all sorts – kindly, severe, humorous, some minus and arm or a leg, some still tremulous and stammering from long ago shell shock. In the run-up to our joining the EEC in 1973 some, whose service and character commanded respect, told me what a wonderful thing this would be for my generation – that we would not have to endure what they had suffered. Well, thank God, that has come true – although not, I think, because of our European entanglement.

I wondered what these veterans would have thought if they had known the scheming that went into the European project. They were  men of tough, straightforward character. Having fought for our freedom and democracy and seen their friends die, would they have been pleased to learn on returning home from the war that a new, secret scheme of government was being prepared for them?

The following quotation from a 1947 pamphlet entitled ‘Design for Europe’ by Peter Thorneycroft, later Chairman of the Conservative Party and Chancellor of the Exchequer, has long stuck in my mind.

“No government dependent on a democratic vote could possibly agree in advance to the sacrifice that any adequate plan must involve. The British people must be led slowly and unconsciously into the abandonment of their traditional economic defences.” 

Having fought for the familiar freedoms and laws of their own country, would they have relished the idea of being kept in the dark about a totally new system of government by foreigners, including former enemies? It was a terrible insult to their service and showed what the plotters of the planned Eurostate thought of them and their mental capacity.

As I continued my walk home I then reflected that, for us, the battle is far from over. Nominally we would be out of the EU on 29 March 2019. But, in practice, will we be out? A friend in Shropshire had recently told me of an auctioneer (a keen Brexiteer incidentally) who was presently selling five to six thousand sheep per week, mostly going to Europe. He had absolutely no idea whether that would still be possible on 30 March 2019.

Because of my work as a miller of animal feeds, I knew that we had received ample advice for over a year before we entered the EEC in 1973, and so were able to get on with making our living from day one when we joined. Only recently, just a few months before Brexit, has the government begun to issue advice. They have been playing at politics up to now – what will gain a cheer or a round of applause rather than caring for our industries.

Perhaps it was the Scottish pipe tune which put me in mind of the Glasgow Orpheus Choir and Sir Hugh Roberton conducting “All in the April Evening”, inspired by watching lambs skipping around. Those lambs in April next year will be outside the EU and its market. The economics look pretty grim, if the EU tariff has to be paid. Farms and firms can adapt to new circumstances, given time. But in spite of efforts to alert those with responsibility, no timely advice was given. Many other industries are in the same position.

Nonetheless, it is a lovely tune.

THE WITHDRAWAL AGREEMENT: WHAT WILL HAPPEN NEXT?

The author is a researcher on UK-EU integration issues, who wishes to remain anonymous for professional reasons

The draft withdrawal agreement is out, to much controversy. What are the possibilities for what will happen next?

The draft has gaps, so cannot be regarded as the final version. The version drawn up by negotiators is being reviewed in EU capitals. There could yet be changes if EU27 countries push for them.

Although Angela Merkel feels there is little scope for changes, the May government will be under severe domestic pressure to secure some changes so it can crow a victory of sorts. Even if the result is constructive ambiguity. Negotiators often build in some room for manoeuvre in allowing concessions.

Housing Secretary James Brokenshire has warned against unpicking in case the outcome is a worse offer. But as timescales are tight, I would only put the probability of a better deal for the UK at 5%, and a worse deal slightly less, say 3%.

How the Westminster Parliament will respond is difficult to predict, but the BBC only sees May getting around 264 votes of the 320 needed to pass the withdrawal agreement. The former DExEU Secretary David Davis foresaw an initial rejection.

Lord Mandelson predicts a hard Brexit, implying no-deal. The EU27 are desperate to avoid this, but their likely approach might be to hold firm and play chicken in the hope that the UK blinks first.

Although there is a suspicion that they would prefer the UK to remain in the EU, it might be more advantageous for them long-term to see a chaotic Brexit. Their dream might see the UK begging to return without its budget rebate and opt-outs, such as on the Euro.

The Court of Justice is due to rule on whether the Article 50 notification of withdrawal can be revoked, but as there is nothing in the treaties to suggest this, I see the probability as 1%.

The Westminster Parliament could vote to extend negotiations as a covert means of stalling Brexit. This would mean unwelcome extra work for Commission staff, and I could only see this happening if it were the sole means of avoiding a no-deal outcome. Probability: 5%.

Alternatively, the Westminster Parliament could vote for a re-run referendum, but this would be highly divisive and produce even more uncertainty. The timescale is not favourable when Electoral Commission guidelines are factored in. Many MPs would wish to avoid a popular backlash. Probability: 5%.

The Westminster Parliament could trigger a general election, but this would be unlikely under existing legislation (the Fixed Term Parliament Act). The Liberal Democrats have had recent financial problems and any party imposing an unwanted third election within four years could face an electoral backlash. Probability: 1%.

The Westminster Parliament would have to choose between passing a flawed deal with long-term consequences, and being held responsible for short-term economic disruption. It is my conclusion that a Parliament comprised mainly of MPs who backed Remain will pay only lip service to the Brexit referendum and ultimately pass a similar agreement. Probability: 60%.

Yet this is not guaranteed. The draft withdrawal agreement is highly offensive to Scottish and Unionist sensitivities and staunch Brexiteers who would run the EU’s gauntlet, hoping it blinked first. Would the EU really want to damage its trade surplus, its supply chains and its nationals working in the UK by being pig-headed? I am told that some continentals, notably Spain, have not started their no-deal preparations, so there would be serious consequences for them too.

Also, several pro-EU MPs would baulk at voting for withdrawal on any terms.

Time could run out for those expecting a typical last-minute EU compromise. I would put the probability of no-deal at 20%. This can be further subdivided depending on what exactly is meant by ‘no-deal’. In the sense of no agreement of any sort: only 5%. But a ‘no-deal plus’, which would mean no overall deal but with temporary arrangements or mitigating side deals in place, such as to provide certainty for EU nationals: 15%.