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Lords vote for a "meaningful" vote on the terms of Brexit

by Frank Schnittger Wed Mar 8th, 2017 at 06:22:33 PM EST

For the second time in a few days, Theresa May's government has suffered a defeat in a House of Lords vote.  Their Lordships are concerned not to give the Government a free hand to negotiate whatever deal it sees fit without having to submit it to Parliament for approval before Brexit finally happens.  However as The Telegraph has noted:

At first glance, the amendment to the EU (Notification of Withdrawal) Bill in the House of Lords giving Parliament a "meaningful vote" on a Brexit deal may look innocuous. After all, Britain has voted to restore the primacy of its own Parliament, so why should that Parliament not decide on the Brexit deal? That is the argument that advocates will make for the amendment, which may well be endorsed in the upper house and conceivably by the House of Commons next week, since a number of Conservative MPs are said to be minded to support it there.  Yet that argument is flawed and this amendment should not pass.

The flaws are both practical and principled. The practical flaw is found in the effect this amendment would have on Brexit negotiations. It is no secret that some EU leaders still believe that Britain can be persuaded to reverse its decision to leave; the EU, after all, has a history of trying to overturn democratic votes, even referendum decisions, a contempt for the electorate that partly explains why the integrationist project is failing. If those leaders believe that the British Parliament could reject any Brexit deal and instead continue our membership, they will have a strong incentive to offer the worst deal possible.

As usual, The Telegraph sees no irony in criticising the EU for a lack of democracy in the context of an article on a vote in the entirely unelected House of Lords. But there is a bigger problem with the House of Lords vote. A correspondent and European Tribune reader who wishes to remain anonymous writes (by email):


It is common (or perhaps just apocryphal) for letters to the editor to begin "Am I the only one who ...." so in this context - Am I the only one who thinks that the recent discussions in the Commons and the Lords, and the campaign by the LibDems about MPs having a "meaningful vote" on the outcome of A50 negotiations is at best, a complete waste of time, and, at worst, totally deluded.

Back in July, I queried what the Brexit negotiation process would entail and whether the UK hierarchy was deluded in the path it expected to take to free market access.

What has happened since has re-enforced my view that there is a complete mismatch between what May, Davis and Fox think is going to happen and what Barnier, Tusk et al are intending. Since the UK populous is exposed to the former rather than the latter, we are being set up to blame the EU for intransigence when the negotiations go nowhere that the UK expects.

The UK Press seems incapable of discussing this mismatch.

What has come to be called the "triggering of Article 50" requires a simple written statement that a member wishes to leave the EU. Nothing else. I doubt if any other statement in that letter matters legally. As you stated in a comment once that process happens the rest could be automatic - out to third country status two years later with no agreement, or sooner, with a "divorce" agreement.

So any vote by MPs is a vote to accept what has been negotiated or for a full hard exit. The option some Lords and Commons have discussed of remaining in by withdrawing A50, or by rejecting the agreement and negotiating further, is not legally supported within A50. Further negotiation is not likely to be a consideration for the EU Commission, Parliament or other 27 members after two years of expensive time wasting by the UK.

There is no provision within A50 for the request to be withdrawn. An EU advisory legal paper suggests it cannot. At best, it would be a decision for the ECJ. The [present] UK government is not going down that route!!

The latest time to save the UK economy is within the next two weeks but our MPs are not going to do that either.

MPs and Lords could be in for an unpleasant surprise.

Prepare for more "fake news" as the "Intransigent bureaucratic EU" gets blamed for the UK's increasingly desperate situation beginning in two weeks and declining rapidly over the next two years.

My response was as follows:

I agree with the points you make. There is no legal provision for withdrawing an A50 invocation if you don't like the outcome of the negotiation process. i.e. you don't have the legal "right" to withdraw a notification, and the EU doesn't have to accept your withdrawal attempt if you try.

That does not mean, however, that the EU and the UK could not agree to terminate the A50 process if all came to the view that it was all rather a bad idea after all. This could happen, say, if there was a change of Government in the UK and the incoming Government had campaigned against accepting the terms of departure as negotiated by the outgoing Government.

The problem here would be timing. Suppose the Tory government negotiated what was generally agreed to be a very bad agreement and lost a confidence vote in the House of Commons in consequence. Presumably this wouldn't happen until near the very end of the A50 negotiating process after the usual last minute brinkmanship.

There might be no time to hold a general election and form a new government before the two years had elapsed resulting in the UK being out one way or the other. Under those circumstances, and with a UK general election pending, I could see the European Council agreeing to (say) a 3 month extension to allow the political process to play out within the UK and in order to see what the new Government wanted to do. However I doubt the new Government would be allowed to begin the negotiation process all over again. They would simply be asked "are you in or out?" based on whatever agreement was negotiated by the previous government.

However we are then in "unanimous agreement" territory and it would be very easy for any one disgruntled EU member to end the whole process unilaterally at that stage by withholding their consent. Also, it is hard to see that scenario unfolding within the UK, as Theresa May has been very clear that the UK is out one way or the other and that no agreement is preferable to a bad agreement.

So even if Parliament were to reject whatever Brexit agreement is negotiated, it still seems that the most likely scenario would be that the UK will simply leave without any Brexit agreement.

That is where the doomsday scenario I have been elaborating comes in. The EU would be faced with a situation where a former member had rejected its best efforts to negotiate an amicable agreement, perhaps refused to pay any outstanding debts, and yet still expected to participate in the WTO and other agreements the EU had negotiated on its behalf.

If this were accompanied (as I would expect) by a further radical devaluation of Sterling, EU member states would be faced with a situation where their exports to the UK became more and more uncompetitive or uneconomic and UK exports into their markets had a huge competitive advantage. It would be only reasonable and rational for the EU to impose significant import tariffs on UK exports to preserve the competitive position of their own economies.

Thus if Sterling were to devalue by a total of c. 25% (including the current 10% devaluation), import tariffs of say 20% might be imposed on UK exports. [The EU could further justify those tariffs on the grounds that the income was needed to plug the gap in the EU budget left by UK withdrawal and failure to pay the outstanding €60 Billion withdrawal bill.]

It is easy to see how this could lead to a trade war with retaliatory increases on import tariffs by both sides, and it is also easy to see how the UK economy would suffer the greater damage.

Theresa May would undoubtedly seek the assistance of Trump and other world leaders to bolster her case, but what could they do in what they would see as an essentially internecine dispute within Europe? Trump might in any case have lost his Congressional majorities at that stage and be seen as a lame duck President.

Of course a lot also depends on what happens within the EU and how the elections in Holland, France and Germany play out. Whatever Theresa May might say, Brexiteers have been hoping that the EU will gradually collapse, and that they will be able to pick over the remains at their leisure for the juiciest bits most to their liking.

So to some extent my scenario of a tough EU negotiating stance depends on basically pro-EU governments being re-elected here. But what have Macron and Schultz got to lose from advocating a tough negotiating stance vis a vis the UK, even if only to shore up their own positions against increasingly strong nationalist forces at home? If the UK is to be allowed to act in what it considers to be its own best interests, why can't the EU take action to protect its national economies?

So I see the political dynamics of this playing out all wrong from a UK point of view, but as you say, there is hardly any hint of this in the UK media and in the Lords and Commons debates. Like you, I anticipate a furious response from the UK tabloid and "serious" media when it begins to dawn on them that the EU has no intention of giving them what they want. The EU and UK are living in parallel universes at the moment and some kind of collision between different political realities seems inevitable, even if we don't know what the precise outcome will be.

We live in interesting times.

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There is no legal provision for withdrawing an A50 invocation if you don't like the outcome of the negotiation process. i.e. you don't have the legal "right" to withdraw a notification, and the EU doesn't have to accept your withdrawal attempt if you try.

That does not mean, however, that the EU and the UK could not agree to terminate the A50 process if all came to the view that it was all rather a bad idea after all.

The problem here would be timing.

Wouldn't that be in violation of A50?

There is no concept of stopping the process and it seems straightforward that it would go against the A50, and thus would require a treaty change in order for such a political will to be legally implemented, which, for all sorts of reasons, is a non-starter.

by Prospero on Wed Mar 8th, 2017 at 07:45:29 PM EST
Obviously we would need a legal judgement on this to be certain, but my take would be that A50 describes the process which must (at a minimum) to be followed if a member states decides to leave the EU and sets out the rights and duties of various entities in that process.

It goes into very little detail and is silent on many things which, in the absence of precedent and prior court judgements, leaves lots of things up for negotiation and agreement between the parties... Issues such as the detailed agenda for the negotiations, will there be one strand or many, what order will issues be dealt with etc. One of the things A50 is silent on is what happens if the UK changes it's mind about leaving.

As you state, there is no provision for this in A50, and one interpretation would be that the A50 process must therefore carry on regardless with the UK leaving after 2 years unless there is a unanimous decision of the council to extend that period.  Presumably the Council could extend that period indefinitely, with the result that the UK would never leave.

However the more correct interpretation (in my view) is that matters which are not expressly laid down in A50 are open to negotiation and agreement as a political rather than legal matter.  Thus the EU27 could voluntarily agree to end the A50 process, but it cannot be legally forced to do so just because the UK has changed its mind.

Equally, a lot of issues could have been thrashed out in informal talks before A50 was ever invoked and the UK could have been given a very clear idea of what the final Brexit deal would look like. Invoking A50 would, in that instance, be more like a final formal act of leaving rather than an initiation of the process.

The EU27 decided against this (presumably the prevent members from threatening to leave the EU ad nauseam merely to renegotiate better terms for themselves) and there was nothing the UK could do to force them to do so.

Index of Frank's Diaries

by Frank Schnittger (mail Frankschnittger at hot male dotty communists) on Wed Mar 8th, 2017 at 10:34:32 PM EST
[ Parent ]
Martin Wolf
I find it impossible to imagine that after two years of hard negotiations, the UK would be allowed to get away with saying to its counterparties that the deal they have offered is so bad that it has decided to stay inside, almost as a form of punishment. This would violate all norms of decent behaviour.

I suspect that any attempt to withdraw the article 50 application in these circumstances would be rejected by the members, supported by the European Court of Justice. The latter would view such whimsical behaviour as incompatible with the survival of the EU itself.



Index of Frank's Diaries
by Frank Schnittger (mail Frankschnittger at hot male dotty communists) on Thu Mar 9th, 2017 at 01:39:07 AM EST
Which is why, had the UK sought to abide by its own constitutional arrangements, it should have first sought clarification of whether it could withdraw article 50 and only then voted on giving the right to trigger it.

But of course May is not interested in the slightest in abiding by the law, she wants absolute power. Quite a common trait in British conservatives (and probably not only British ones, actually).

The whole process is shocking. They did not have the votes for a binding referendum (and the question was far too vague for a binding one - not giving any hint on what would then be implemented), so the law to allow the referendum states that it is only advisory.
Then they campaign on remaining in the single market, because of course.
Then May states that there is no option but to close borders - something that the advisory referendum did not even ask about - and is willing to ignore the rule of law to force it to happen.

And yet half of the country wants her as the next PM. Maybe authoritarian bigotry is what they want. But I feel for the decent people, of which there still are many, who clearly will not have any say in the direction the country is going.

Earth provides enough to satisfy every man's need, but not every man's greed. Gandhi

by Cyrille (cyrillev domain yahoo.fr) on Thu Mar 9th, 2017 at 10:00:19 AM EST
[ Parent ]
The USA and UK like to style themselves as the home of democracy, and yet they use the crudest first past the post systems which limit governmental choice to effectively two parties and which discourage participation by anyone who doesn't like either. Most constituencies are "safe" for one party or the other, and so there is little point in voting at all. Hence you get low turn-out rates, and even 35% of a low turnout vote can be enough for a Governing majority if the opposition is sufficiently divided, as is the case now.

35% of (say 60%) turnout is c. 20% of the registered population and even that excludes people entitled but not registered to vote. So basically you get Government by the motivated few with the vast majority not bothering or having no effective say in any case.

So it is easy to see how a Trump or the Brexiteers can "win" a referendum or General election by rabble rousing, frightening, or exploiting the fears of a relatively small subset of the population. Elections used to be fought to gain control of "the middle ground", but now it is all about rousing your base to turn out.  A baying media with a TINA narrative can do the rest.

May is being entirely opportunistic, seeking to hold the centre ground of the Tory party wherever it will take her. Since the referendum, it has moved precipitously to the right drunk on the prospect of absolute power for themselves.  The EU was always a (marginal) constraint on a national elite running amok (see Poland for where it's influence is insufficient) but why settle for relative power when you can make it absolute?

Index of Frank's Diaries

by Frank Schnittger (mail Frankschnittger at hot male dotty communists) on Thu Mar 9th, 2017 at 11:44:54 AM EST
[ Parent ]
"The USA and UK like to style themselves as the home of democracy, and yet they use the crudest first past the post systems"

Yes, that's one of the things that puzzle me - so many people are in favour of first past the post, and explain it with extremely odd arguments.

The most common will be variations around "you can't govern a country by committee, you need a party to conclusively win". I'm sorry, what do you mean you can't? Are you not aware that many countries have proportional representations, or in any case have frequent coalitions? And are you not aware that even in a political party, not everyone thinks completely alike, so you will need to create a common position from various views.

Or some will say that they want to vote for a person rather than a party, as then they know who their MP is, who will vote according to the local constituency's interests. Well, while the desirability would be debatable (a national assembly should take national interest views rather than try to secure pork), where have you been? How often do you see enough Tories defect to really endanger a vote?

And so on and so forth.

Earth provides enough to satisfy every man's need, but not every man's greed. Gandhi

by Cyrille (cyrillev domain yahoo.fr) on Thu Mar 9th, 2017 at 01:36:36 PM EST
[ Parent ]
But you can balance all of that with PR - part of the reason we have  multi-seats constituencies here, I think, though taking a good look at how the Irish system evolved is on my startlingly long todo list.
by Colman (colman at eurotrib.com) on Thu Mar 9th, 2017 at 03:43:40 PM EST
[ Parent ]
I know, I did bring that up in some conversations, but I still got some "I want to know who MY MP is, not someone diluted in a group of MPs".

This seems to be the same mindset that will always want to turn continuous data into discrete data.

Earth provides enough to satisfy every man's need, but not every man's greed. Gandhi

by Cyrille (cyrillev domain yahoo.fr) on Thu Mar 9th, 2017 at 04:07:11 PM EST
[ Parent ]
I CAN well understand why voters want to have a specific person as their representative, even if he is also the representative of 400,000 other people. That is basic to the concept of accountability - much abused word that it is. Unfortunately, it will likely require massive popular education to change that fact. It is probably more likely that the USA will elect a socialist president than that it will approve some electoral change that alters that supposed accountability. They are not going to support something they don't understand and it is too much effort for most to understand other systems, even if they were taught in high school. Perhaps some dramatic event that results in an epiphany would help. Or not.  

"It is not necessary to have hope in order to persevere."
by ARGeezer (ARGeezer a in a circle eurotrib daught com) on Thu Mar 9th, 2017 at 04:32:51 PM EST
[ Parent ]
In the Irish multi-seat STV system, you also vote for individuals, not parties, and most people know who their TD's (=MPs) are. In fact one of the criticisms one most often hears is that TDs are too focused on their constituent's needs, and not enough on national priorities. Even list systems often allow you to vote for individuals as well as parties, with the party vote there just to ensure proportionality.

It has always seemed to me that first past the post single seat constituencies are only for simple minds who refuse to expend any time or intelligence on thinking about politics at all, and then like to complain when politics doesn't work to their liking.

One of the things I love about the Irish political culture is the degree to which even your average not very engaged voter is aware of the intricacies of the PR system and uses their vote to achieve whatever mix of party, personality and local representation in their constituency which they desire.

Being able to go down a candidate list from 1 to (say) 20 in order of preference means that your vote may be counted several times on its way to its final destination and you can encourage several no hope marginal candidates on the way to determining who gets the final seat in your constituency.

There is nearly always a degree of uncertainty what the final mix of successful candidates will be, and your vote will often help determine who gets the last seat.  In comparison, single seat first past the post elections often mean that 80-90% are virtually predetermined and only a few seats are truly marginal and contested.

The level of voter education and engagement is correspondingly reduced.

Index of Frank's Diaries

by Frank Schnittger (mail Frankschnittger at hot male dotty communists) on Thu Mar 9th, 2017 at 04:42:53 PM EST
[ Parent ]
so many people are in favour of first past the post, and explain it with extremely odd arguments.

For my parent's generation, PR is associated with the 4th Republic and its supposed chronic instability, where governments were overthrown every six months and new elections held.

It doesn't matter whether this was because of PR or not, this is the narrative that remains for many.

De Gaulle changed this with a highly personalized FPTP system mostly made for himself and his party.

This might also explain why French politics has been coalescing around two main groups, the "Gaullists" (called LR in their latest rebranding) and the PS.

Interestingly enough, the two front runners for the upcoming presidential election, Macron & Le Pen, are not part of these two traditional blocks.

by Bernard on Thu Mar 9th, 2017 at 07:46:42 PM EST
[ Parent ]
Weirdly enough, Irish politics was 2+1 parties for a very long time even with PR.
by Colman (colman at eurotrib.com) on Fri Mar 10th, 2017 at 09:44:38 AM EST
[ Parent ]
Largely because it was dominated by the two civil war antagonists but also because Ireland's system does in practice give a seat "bonus" to larger parties and tends to reward "catch all" centrist parties with higher numbers of lower transfer votes.  Sinn Fein continually under-perform their first preference vote because they get less lower preference vote transfers - although that may be in the process of changing.

Index of Frank's Diaries
by Frank Schnittger (mail Frankschnittger at hot male dotty communists) on Fri Mar 10th, 2017 at 12:03:41 PM EST
[ Parent ]
But is that so unusual? Germany and Austria also were dominated by two big parties for most of their post war existence. Only lately has the potential for fragmentation inherent in PR become active.
by generic on Fri Mar 10th, 2017 at 12:21:00 PM EST
[ Parent ]
No - it's been the recurring theme of post war politics in Europe but as Luis has noted, that has been in the process of changing in more recent times.

Index of Frank's Diaries
by Frank Schnittger (mail Frankschnittger at hot male dotty communists) on Fri Mar 10th, 2017 at 12:27:42 PM EST
[ Parent ]
None of it is unusual. Like it imperial forebearers, Rome and Greece before that, the US oligarchy dominated post-war Europe and Asia. The US recreated the bureaucracy of its own image from the ruins of internecine, ethnic competition: the bi-polar state.

Diversity is the key to economic and political evolution.
by Cat on Mon Mar 13th, 2017 at 03:12:31 AM EST
[ Parent ]
Guardian
A report commissioned by US businesses in Europe has warned Theresa May ahead of article 50 negotiations that American investment in the UK, worth £487bn in 2015, has been largely based on the country's EU membership and access to the single market.

The study commissioned by the American Chamber of Commerce to the EU (AmCham EU) has called for Britain to recognise the limitations of any free trade deal with the US alone, and warns of the dangers posed in building barriers to trade between the UK and the wider continent.

It says the importance of the European market to US firms in Britain means that "both the US and the UK have more to gain from achieving some agreement with the EU than simply with each other". The report suggested the record £487bn US firms invested in the UK in 2015 had been imperilled by the UK government's intention to withdraw from the single market.



Index of Frank's Diaries
by Frank Schnittger (mail Frankschnittger at hot male dotty communists) on Thu Mar 9th, 2017 at 11:48:19 AM EST
Brexiters will dismiss it by mentioning Amazon, Google, Facebook, Expedia, Boeing, etc... who all have announced expanded presence in the UK (and even its first ever European plant for Boeing).
by Bernard on Thu Mar 9th, 2017 at 07:49:12 PM EST
[ Parent ]
These are not "American" corporations. They are stateless corporations--with the arguable exception of Boeing whose operations are near wholly dependent on US patronage to suppress labor and open markets. They are paragons of inter- or multinational trade and symbols of "globalsim."

There will be political reckoning in those nations whose ppls are said to object to "free trade" and comparative advantages among tax havens.

Diversity is the key to economic and political evolution.

by Cat on Mon Mar 13th, 2017 at 02:44:22 AM EST
[ Parent ]
to the best of our knowledge"

13:363 is dick all.

Diversity is the key to economic and political evolution.

by Cat on Mon Mar 13th, 2017 at 02:52:04 AM EST
[ Parent ]
When GBP, the most grossly valued currency on the planet, strikes EUR is when we'll see the EC knives come out and not one hour before then.

Diversity is the key to economic and political evolution.
by Cat on Mon Mar 13th, 2017 at 02:56:33 AM EST
[ Parent ]


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