The five stages of Grieve

The five stages of Grieve have been identified by psychologists:

1.   Denial

2.   Anger

3.   Bargaining (with foreign enemies)

4.   Believing your own wildest rhetoric

5.   Standing as a vanity candidate out of spite in a General Election

Many former MPs recently defenestrated may be feeling the signs of Grieve as the nights lengthen and the season of ill-will approaches. Once outgoing characters in an established rut, now thrown into the real world and feeling Gaukey, we should not be cruel – they are in need of help and counselling.

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Headdesk, again. What next?

Whatever happened to “no more extensions”? Extension is not inevitable, but may be probable. It removes the urgency upon Parliament to process the Withdrawal Agreement and may encourage some to withdraw their consent from the terms agreed.

The EU has forgotten though the stinger in the Surrender Act, introduced in the Kinnock Amendment: if the government is forced to accede to an extension, it is empowered only to agree to the Malthouse Compromise, which means dropping the whole Ulster Protocol. That will not go down particularly well in Dublin. Before they formalise this ‘flextension’, will they think about that?

The elephant in the room has used his Tusk. It is not all in their favour though.

The Boris-version Withdrawal Agreement was agreed specifically for the Reformation Day exit date. If it slips by, everything is up for grabs again, or would be were it not for the Surrender Act insisting on the Agreement minus the Protocol.

As it happens, the date proposed by the European Council is not a fixed date, out on 31 January and no earlier: it is a last date. Article 50 states that exit happens when a Withdrawal Agreement comes into effect, which could be Thursday, or Friday.

We go back to what we wrote before on this: the Withdrawal Agreement Bill is unnecessarily complicated, which was a gift to Labour. DExEU took their eye off the ball. A one-page bridging bill would have sufficed and could get through in days. If they are not spooked by the apparent 3 months more – it could still be three days.

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Build the bridge, now

A week and a half before Exit Day and Parliament has stalled the Bill. The no-deal approaches, which no one in Parliament wants. The Bill was absurdly complicated for one that had to be rammed through in three days: it is a Civil Service idea of how things should be done, with every jot and tittle accounted for, when that was not necessary at this stage.

It only needs a very short Act to put the Withdrawal Agreement into practical effect. The detailed provisions can follow on.

The European Union (Withdrawal) Act 2018 already contains bridging provisions of a sort: it continues the effect of EU legislation until it is changed.  The two main concepts in in the 2018 Act can be reused: “EU-derived domestic legislation” and “direct EU legislation”. The Withdrawal Agreement only requires that this legislation (in certain areas) should not be changed and that it may be added to.  Therefore to bridge the gap, a ‘Bridging Bill’ need only say that in those transition areas:

  • The power to change these rules shall not be exercised during the Transition Period until except to adapt them to the new circumstances, such as to apply as if references to European Union’ were to ‘the United Kingdom and the European Union’; and
  • The Secretary of State may in that period enact new EU-derived rules.

That suffices for the bulk of what is in the Withdrawal Agreement Bill and bridges the gap: the existing Withdrawal Act does the rest.

If the Commons are determined that the Agreement must be ratified, the Bill could add two lines:

  • The Government shall ratify the Withdrawal Agreement and the Political Declaration and shall use all its statutory powers in accordance with that Agreement.

Job done.

The Ulster protocol needs primary legislation, but as it only applies as from the end of the Transition Period,,31 December 20of 19, there is time enough for the Lords and Commons to debate and enact it.

For my usual fee, I could even draft the necessary Bill over a lunchtime.

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Right, Bill; it’s up to you now

The Withdrawal Agreement Bill published last night is 110 pages long, plus index, and it has to be pushed through in days. It is much shorter than its length though.  The Bill was necessitated by the manoeuvrings of Sir Oliver Letwin, who has indicated that he will support it; which make you wonder why he did not just support the approval motion on Saturday.

The reasons (if they can be called that) are suggested by conspiracy theories that spread around the corridors of Westminster: that the Spartans would see the agreement approved to get rid of the Surrender Act, only to turn and block its implementation in order to achieve a no-deal Brexit; but even the most virulent of them does want a deal. The atmosphere of mistrust and misunderstanding has raised a toxic cloud which drives those within on both sides to lose all reason, or believe their opponents to be mad, which is a form of madness itself.

As we know though, it is not really about Europe.

We are where we are though and it is up to the Bill to implement Exit.

It is not short. This Bill has been in preparation for months and been swiftly updated for the changes in the new, Boris withdrawal agreement. It is hard to see why it has to be so long, but the other statutory provisions it riffs off are long and tangled so it has to be so itself, apparently.

It might have been a few lines: ‘The Government can do anything to implement the agreement, and shall’, but MPs should be grateful that the powers are more circumscribed to the purpose.

The Bill provisions

Clause 1 adds to the Withdrawal Act a ‘bridge’ to carry over existing European legislation into the transition period, with a few ‘to be read as if’ provisions, and Clause 2 does the same for domestic regulations made under the repealed European Communities Act 1972, then Clause 3 is the usual bundle of Henry VIII powers for tidying-up and Clause 4 extends this in a tortuous and hard-to-follow way to powers of the devolved authorities – it is hard to follow because it is talking in general terms about powers and enactments not yet identified let alone classified. It seems to make sense, somewhere. There could be head-scratching in the implementation. Section 5 seems to go over old ground covered by Clauses 1 and 2, but there may be a technical difference.

There then follow provisions (Clause 6) on the “EEA EFTA separation agreement”, which has barely been mentioned before but was agreed in 2018; it may not excite members much, although the rights of a Liechtensteiner may be as important to that person as the rights of a Frenchman are. There is no need to dwell on it.

Clauses 7 – 11 deal with rule-making powers in connection with continuing rights of residence for EU and EFTA citizens and the limitations thereof: much scope for virtue-signalling here but in fact the provisions have nothing unexpected nor anything those currently in opposition would not enact themselves were the positions reversed. Expect this to be a battleground for rhetoric if not substance.

There follow more technical rule-making powers on other areas in the Withdrawal Agreement, such as recognition of professional qualifications (urged by Remainers and Leavers alike, but expect the two sides to tear into each other about the importance of this even if they are in violent agreement), non-discrimination etc. There is even a quango to be established, ‘The Independent Monitoring Authority for the Citizens’ Rights Agreements’ – nothing like a snappy name) to give employment to any footloose Blairites still about.

Then come more random rule-making powers, again (this is a most untidy Bill).  Jolyon Maugham will have fun with all the judicial reviews to follow.

Financial provisions are in Clause 20: though one of the more contentious elements of the Withdrawal Agreement, the Clause is plain and workmanlike, following the template of all supply bills.

The Protocol:  the provisions for the Ulster Protocol begin at Clause 21. It is the dark cloud over the Bill.  The Henry VIII provision is remarkable, saying that ‘Regulations under subsection (1) may make any provision that could be made by an Act of Parliament (including modifying this Act)’. The DUP will not be happy at all.  The Protocol is one thing, and supported by other Unionist parties, but the provisions spelled out in black and white here are deeply troubling. Whether it is gold-plating, or the hidden necessity behind the jolly words of the Protocol others must consider. That is just Clause 21; the rest is less troublesome.

Clause 30 stores up trouble for the future:  it gives a mechanism whereby a Minister may extend the vassalage period beyond 31 December 2020. The Agreement provides for it, as between the United Kingdom and the European Union, but there is no need for the Act to give the power actually to effect it. It could set the end of the Transition Period in stone.

Clause 31 is another oddity, apparently fettering the negotiation of the future relationship by reports and motions of the House, and we have seen how capsy they can be.  An obligation to follow the Political Declaration is fair enough as an earnest of good behaviour, but here no negotiation can actually take place without its objectives’ being approved by the Commons. That has shades of Geoffrey Howe: ‘It’s rather like sending our opening batsmen to the crease only for them to find that before the first ball is bowled, their bats have been broken by the team captain.’

Clause 32 will repeal Section 13 of the Withdrawal Act, as being redundant. I advocated this some time ago, and it is good to see the cussed thing going.

Clause 36(1) says “It is recognised that the Parliament of the United Kingdom is sovereign.” No it isn’t: sovereignty resides in the Queen and Parliament acting together. Someone ought to tell them.

Then after more detail on non-derogation from workers’ rights (Corbyn should be pleased – he will still attack it though) and definitions that is it, after just 39 pages.  The rest are schedules, with more detail from the provisions already described (all good fun for judicial review lawyers in the coming months).

Every man to do his duty

An inspiring Trafalgar Day to all. Consider Nelson’s words:

First gain the victory and then make the best use of it you can.

If a man consults whether he is to fight, when he has the power in his own hands, it is certain that his opinion is against fighting.

Desperate affairs require desperate measures

It is warm work; and this day may be the last to any of us at a moment. But mark you! I would not be elsewhere for thousands.

Success, I trust — indeed have little doubt — will crown our zealous and well-meant endeavours: if not, our Country will, I believe, sooner forgive an Officer for attacking his Enemy than for letting it alone.

May the Great God, whom I worship, grant to my Country and for the benefit of Europe in general a great and glorious victory; and may no misconduct in anyone tarnish it; and may humanity after Victory be the predominant feature of the British fleet. For myself, individually, I commit my life to Him who made me, and may His blessing light upon my endeavours for serving my Country faithfully. To Him I resign myself and the just cause which is entrusted to me to defend. Amen. Amen. Amen.

Leaders can call to the best in us. I thought often of the inspiring flag signal Horatio Nelson sent on the eve of Trafalgar. “England expects every man will do his duty.” The flags above the Victory didn’t ask or demand obedience in the upcoming fight; they expressed Nelson’s unshakable admiration for and faith in the sailors and patriots he knew them to be.

Stanley A. McChrystal, My Share of the Task (2013)

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