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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Pitt triumphant

Pitt and Johnson; two Prime Ministers whose personal characters are so opposite in every respect that a comparison seems ludicrous. However they are beginning to draw together.

William Pitt the Younger became Prime Minister in the political turmoil which followed the loss of the American colonies.  His involvement with high Tory political circles had begun from the cradle, as he was a younger son of ‘the Great Commoner’, William Pitt the Elder, His extraordinary abilities were recognised from the beginning but he was very young when he entered the Commons, elected for a convenient pocket borough, Appleby.

In 1783, the government was an extraordinary coalition ministry of Lord North and Charles James Fox; there is no real equivalent these days, but if you can imagine a voluntary co-operative ministry of Ken Clarke and John McDonnell, you may begin to approach the idea. Lord North was the aristocratic PM whose inflexibility and lack of imagination caused the loss of the colonies (albeit that the colonists may have had a hand in it too) while Fox was an untameable radical. Individually they were hopeless; together they were worse than that, but they could command the votes of the Commons.

In 1783, the King appointed William Pitt as Prime Minister. He was just 24 years old which was astounding.  Members made baby noises as he stepped up the dispatch box. It was as was written at the time:

A sight to make surrounding nations stare;
A kingdom trusted to a school-boy’s care

Pitt had no majority nor mandate in the House of Commons; only the King’s support.  In January 1784 he was defeated on a motion of no confidence. However in defiance of convention Pitt did not resign, and the King still supported him.

In the meantime, even without a majority in the House, Pitt worked hard. He reformed the administration and drove out the corrupt ministers and their placemen.  He worked to balance the budget. His popularity grew in the nation as a whole. Electors sent petitions in support, and the Lords were with him (something our current Prime Minister cannot boast). As the public mood swelled in favour of Pitt, so support in the House of Commons grew, until he was close to a majority.  At that point he called a General Election.

Many candidates stood as ‘Pittites’ and the government North-Fox members were driven out: Pitt was triumphant, with the House of Commons filled with his supporters.  His ministry lasted 23 years.

He was an ideal Prime Minster for peacetime. He read Adam Smith and reformed the state’s taxation and subsidies and trade accordingly, resulting in increasing prosperity.

Then in 1793 Pitt became unwillingly a Prime Minister in wartime. In the twenty-two year struggle against revolutionary France and then Napoleon, Britain’s success was largely built on Pitt’s peacetime reforms and prosperity it brought.  He excelled here too, until his untimely death in 1806. (In 1945, the Evening Standard ran a David Low cartoon showing Winston Churchill climbing onto a plinth engraved with ‘Greatest War Prime Minister’, helped up by its previous occupants, Lloyd George and William Pitt the Younger.)

It started though inauspiciously with a fresh young man full of hope but with no majority in the House, losing vote after vote and even a vote of no confidence, winning the nation over and triumphing at the polls.


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)


Burke on Ambitious Parliaments

Edmund Burke watched the progress of the French Revolution not with the enthusiasm of the age but with an eye to cold reality. He was a Whig, to his very boots, and believed in constitutional government, and Burke would have been cheered to see France progress to a constitutional settlement as England had done a hundred years before, but what he saw unfolding in France was very different. In 1790, the year after the Revolution broke out, and while deepened in its course, Burke wrote his most famous work; Reflections on the Revolution in France.

The National Assembly, after the Tennis Court Oath, moved to usurp all power in the state: instead of acting like the British parliament, it moved to seize not only legislative and constitutive power, but the powers of the executive government also. Burke realised the dangers.

Our own House of Commons has latterly begun to assert an unwonted authority. By convention, the Government is answerable to the House of Commons, but recently the Commons has tried to usurp executive power and exercise that power themselves. Various turbulent MPs have been tipped by the commentariat as “virtual Prime Minister” of this new, unconstitutional Parliamentarian regime.

Burke could see the outcome where the national assembly sought to exercise executive control and to command the army:

Men who have an interest to pursue are extremely sagacious in discovering the true seat of power. They must soon perceive that those who can negative indefinitely in reality appoint. The officers must, therefore, look to their intrigues in that Assembly as the sole certain road to promotion.

It is, besides, to be considered whether an assembly like yours, even supposing that it was in possession of another sort of organ through which its orders were to pass, is fit for promoting the obedience and discipline of an army. It is known that armies have hitherto yielded a very precarious and uncertain obedience to any senate or popular authority; and they will least of all yield it to an assembly which is only to have a continuance of two years. The officers must totally lose the characteristic disposition of military men if they see with perfect submission and due admiration the dominion of pleaders; especially when they find that they have a new court to pay to an endless succession of those pleaders, whose military policy, and the genius of whose command (if they should have any), must be as uncertain as their duration is transient.

In the weakness of one kind of authority, and in the fluctuation of all, the officers of an army will remain for some time mutinous and full of faction until some popular general, who understands the art of conciliating the soldiery, and who possesses the true spirit of command, shall draw the eyes of all men upon himself. Armies will obey him on his personal account. There is no other way of securing military obedience in this state of things. But the moment in which that event shall happen, the person who really commands the army is your master—the master (that is little) of your king, the master of your Assembly, the master of your whole republic.

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