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BJohnson now clear betting favourite to succeed TMay

October 14th, 2017

Peston: “No longer absurd that Boris could be PM within weeks”

The former Mayor and current foreign secretary is now clear favourite to be the next CON leader but his odds are nothing like as strong as they were in the weekend after the general election.

One of the drivers of the increased sentiment in Boris has come from a Facebook post by ITV’s Robert Peston. This is what he wrote about the Brexit divisions in the cabinet.

“..Her (TMay’s) perhaps fatal weakness is that she lacks the authority to settle this argument, such that the rest of the EU would have a clear understanding of who actually represents the UK and what we want from Brexit.

In the words of a senior member of the cabinet, it is a scandal that there has never been a cabinet discussion about what kind of access we want to the EU’s market once we leave, what kind of regulatory and supervisory regime should then be in place to ensure a level playing field for EU and UK businesses, and -don’t gasp – how much we might actually pay to the EU as the so-called divorce bill.

In the absence of a settled government position on these most basic of our Brexit demands, it is little short of a miracle that the leaked draft of a possible EU council statement actually holds out the possibility of the EU itself beginning to mull the form of possible trade and transition deals with us.

To be clear, it has been her ordinance that there should be no cabinet discussion of all this. And if the prime minister lacks the power and authority to negotiate Brexit with her own ministers – who after all are supposed to be on the same side as her – what possible chance is there of her reaching any kind of entente with 27 EU governments?

What should trouble her profoundly is that even those who just a week ago were savaging Boris for his disloyalty, or who detest his Brexit dogmatism, now say little could be worse than the status quo – and that as he seems to own a torch and a stick, they’d rather have him.

To be clear, I am not saying Boris Johnson will be PM within weeks. But I am saying that I no longer regard that as an absurd notion.

Time will tell.

Mike Smithson





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Quantum physics could have the answer to Brexit’s Ireland problem

October 14th, 2017

Perhaps Schroedinger’s Border Guards should patrol the Customs Union

Brexit will happen. As Alastair Meeks sensibly pointed out here yesterday, there’s a good, clear case that Article 50 is not revocable. Britain could ask for an extension to the talks but the PM has been clear that she doesn’t intend to do so and in any case, a delay is not a reversal of course. In practice, the transitional arrangement might look very much like continued membership but even that will have an expiry date, presumably one that’ll be written into the Exit Agreement.

All of which assumes we get an Exit Agreement. That’s far from certain as the two sides continue to talk at cross purposes, becoming irritated with each other in the process as neither understands why the other won’t be reasonable. It’s a microcosm of why the difference in philosophical understanding of what the EU is propelled Britain to leave in the first place.

Diplomacy should, however, prevail in the end on two of the three outstanding points. The financial settlement may prove a lot easier than many expect. Now that Britain is looking for membership-in-all-but-name during the transitional period, the likelihood is that the UK will pay very close to what it’s already doing in order to get that – which also has the happy benefit of seeing the EU through to the end of (and slightly beyond) the current Budget Framework. The debate about bar bills won’t apply. There will still be some legacy costs to sort out – pensions, for example – and opt-in costs for individual programmes but they shouldn’t be insurmountable.

Similarly, the question of citizens’ rights should really have been resolved already. Both sides recognise the need to do so and (in theory) accept the principle of reciprocity – though the EU wants the ECJ to guarantee the rights on both sides, which is hardly reciprocal. Sorting out the precise terms shouldn’t be beyond the wit of the two teams.

The tricky one – indeed, potentially the fatal one for the talks – is Ireland. Here, the contradiction in objectives seems on the face of it insurmountable. The British government wants to leave the Customs Union, which implies those entering it must cross a regulated border, but both sides want frictionless trade between North and South of the island.

The simple solution would be to not leave the Customs Union. After all, it’s the Single Market which holds most of the objections for Brexiteers. The Customs Union imposes some restrictions but if the 16 months since the referendum are anything to go by, that slew of new and improved trade deals looks a forlorn hope. However, to say that would be to admit defeat which the government won’t want to do, for reasons that aren’t all bad. To make a major concession there while the EU gave nothing would be to invite continued intransigence from Brussels on the false expectation that Britain will fold on issues that really are red lines.

So if that option’s off the table, how to square the circle? The simple answer is: don’t. Let the circle and the square coexist.

The assumption is that if Britain leaves the Customs Union then there must be a hard border. In fact, that’s not entirely true anyway: there isn’t a solid border between Norway and Sweden, and Norway is outside the CU. But putting technology aside, why need there be a border at all?

At this point, lawyerly types and bureaucratic logicians will talk about the integrity of the CU, about ‘back doors’ and so on, and yes, in terms of a consistent regime across the Union, they have a point. But only a bit of a point. For one thing, if you were going to import Chinese toasters into Germany, would you really sail to Belfast, transport them by road through to, say, Rosslare or Cork, sail (on a ferry) to Cherbourg or Roscoff, then have them driven hundreds of miles more across the continent? The logistical costs would outweigh any customs saving.

Some will also make the point that if Britain unilaterally gives Ireland a favourable deal then other countries could bring a case against it at the WTO, on the grounds that they’re being discriminated against. They could, but it’s not a slam-dunk. For a start, Britain already has a trade deal with Ireland, dating from 1965. Now, I’ll admit that I’ve not had time to go through the text of that treaty, nor have I found evidence either way as to its status after both countries joined the EEC. It could be that it was formally ended in 1973. On the other hand, if it was simply allowed to fall into abeyance because the two countries’ membership of the EEC superseded it, then on Britain’s withdrawal, it could be argued that Britain has the right to renew the terms, particularly where they are favourable to Ireland.

Even if that’s not an option because the treaty was annulled, there still remain the Agreements that form the Northern Ireland Peace Process, which provide for all sorts of frameworks within the British Isles and within Ireland. In particular, within the Introduction to the section containing the agreement between the two governments within the Good Friday Agreement, it states:

Wishing to develop still further the unique relationship between their peoples and the close co-operation between their countries as friendly neighbours and as partners in the European Union; Reaffirming their commitment to the principles of partnership, equality and mutual respect and to the protection of civil, political, social, economic and cultural rights in their respective jurisdictions;

A little imaginative interpretation there and it could be taken to mean that imposing a border would run counter to the commitment to ‘develop still further the unique relationship between their peoples’ and that a hard border would run counter to ‘the protection of economic rights’. With pre-existing treaties in place, there would be no illegal discrimination against third countries.

All of this is, of course, from the British side. Britain could decide to have no patrolled border but that still doesn’t necessarily get Ireland off the hook. It would still be supposed to enforce the Customs Union. However, to do so would be grossly detrimental to some of the poorer parts of the country. The best option would be to simply leave it as an anomaly. The EU is good at coming up with names to describe anomalies. I’m sure it could be granted some special and unique status.

Perhaps it could be called a superpositional border; one which is simultaneously both there and not there. A legal paradox but an acknowledged one. Quantum mechanics contains such a concept; it’s how Schroedinger’s Cat is both alive and dead at the same time. The trick, in that case, is not to inquire as to the health of the cat. With Ireland, the best option is to not ask about the border.

David Herdson



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Local By-Election Results : October 12th 2017

October 13th, 2017

Inverurie and District on Aberdeenshire (Con defence)
Result of first preference votes: Conservative 1,672 (49% +13% on last time), Scottish National Party 1,146 (33% +5% on last time), Liberal Democrat 295 (9% -3% on last time), Labour 276 (8% +4% on last time), Green Party 56 (2%, no candidate last time) (No Independent candidate this time -20%)
Conservative lead of 526 (16%) on a swing of 4% from SNP to Con
Conservative HOLD elected on the fourth count

Rossal on Wyre (Lab defence)
Result: Labour 610 (50% +11% on last time), Conservative 427 (35% +5% on last time), Independent 180 (15% +7% on last time) (No UKIP candidate this time -24%)
Labour HOLD with a majority of 183 (15%) on a swing of 3% from Con to Lab

Chapelford and Old Hall on Warrington (Lab defence)
Result: Labour 957 (55% +10% on last time), Conservative 353 (20% +2% on last time), Liberal Democrat 312 (18% -3% on last time), UKIP 86 (5% -5% on last time), Green Party 43 (2% -4% on last time)
Labour HOLD with a majority of 604 (35%) on a swing of 4% from Con to Lab

Stanley and Outwood East on Wakefield (Lab defence)
Result: Labour 1,353 (51% +2% on last time), Conservative 847 (32% +7% on last time), Liberal Democrat 165 (6% +2% on last time), Yorkshire Party 153 (6% +5% on last time), UKIP 136 (5% -17% on last time)
Labour HOLD with a majority of 506 (19%) on a swing of 2.5% from Lab to Con

Beigton on Sheffield (Lab defence)
Result: Labour 1,640 (49% +6% on last time), Liberal Democrat 899 (27% +21% on last time), Conservative 552 (16% -1% on last time), UKIP 212 (6% -19% on last time), Green Party 74 (2% -3% on last time) (No Others candidate this time -3%)
Labour HOLD with a majority of 741 (22%) on a swing of 7.5% from Lab to Lib Dem

Hucknall North on Ashfield (Con defence)
Result: Ahfield Independents 1,329 (51% +38% on last time), Labour 629 (24% -7% on last time), Conservative 532 (20% -11% on last time), UKIP 66 (3% -15% on last time), Liberal Democrat 46 (2%, no candidate last time) (No Green Party candidate this time -7%)
Ashfield Independent GAIN from Conservative with a majority of 700 (27%) on a swing of 22.5% from Lab to Ashfield Independents (24.5% from Con to Ashfield Independents)

Bolehall on Tamworth (Lab defence)
Result: Labour 643 (53% +14% on last time), Conservative 561 (47% +12% on last time) (No UKIP candiate this time -21%, No Green Party candidate this time -5%)
Labour HOLD with a majority of 82 (6%) on a swing of 1% from Con to Lab

Oxhey Hall and Hayling on Three Rivers (Con defence)
Result: Liberal Democrat 672 (41% +13% on last time), Conservative 461 (28% +2% on last time), Labour 428 (26% +3% on last time), UKIP 35 (2% -21% on last time), Green Party 31 (2%, no candidate last time)
Liberal Democrat GAIN from Conservative with a majority of 211 (13%) on a swing of 5.5% from Con to Lib Dem

Party Conference Index Scores
Liberal Democrats (+9.59%),
Labour (+8.52%),
Scottish National Party (+4.28%)
Green Party (+3.41%),
Conservative (+3.39%),
United Kingdom Independence Party (-13.12%),

Plaid Cymru (conference yet to be held)



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Those thinking the leave EU vote was wrong take biggest lead yet in YouGov’s Brexit Tracker

October 13th, 2017

If this is more than a blip it could be significant

After more than a year of producing results showing that voters were split almost down the middle over Brexit the latest YouGov tracker now has those saying it was wrong leading by 5 points

This is the biggest margin by either right or wrong has had since the pollster started tracking opinion in the aftermath of the referendum.

As in all newsworthy pieces of polling we’ll have to wait to see whether if this is a trend or whether it is just a quirk. The question has been asked been exactly the same way ever since the referendum.

The poll also had Corbyn and May level pegging at 33% each on the who would make the best prime minister question. These finding generally have a big bias to the incumbent and these are the second bet ever figures for the Labour leader.

Just 21% of the sample said they thought that the government was handling the Brexit negotiation well with 61% saying badly. This is by far the worst set of figures ever for Tories on this question.

Voting intention remains almost static with CON down a point and the LDs up one.

Mike Smithson




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Coming back to EU – can A50 be revoked?

October 13th, 2017

Picture: The justices of the CJEU

Alastair Meeks, who correctly forecast the outcome of the Article 50 Supreme Court case, gives his view if Article 50 is revocable.

Britain is not going to be rescinding its Article 50 notice.  The Government doesn’t want to and nothing in the current progress of negotiations is bringing Britain back closer to the rest of the EU.  All of which makes a lot of the speculation about whether Britain could revoke that notice rather theoretical.  Yet like malaria the idea keeps coming back, resulting in lawyers breaking out in a delirious fever.

Why does it keep coming up?  Two unconnected groups are fond of the idea.  The first group are your actual straight-down-the-line irreconcilable Remainers who have always hated the idea of Brexit.  The other group are an assorted bunch of pragmatists who are horrified at what a balls-up the Government is making of the Brexit negotiations and who want to withdraw the notification so that Britain can take stock of how it will go from here.

Hadn’t all this been sorted out by the Supreme Court earlier in the year?  Actually, no.  The Supreme Court did not have this point argued before it.  Gina Miller argued that an Article 50 notice was irrevocable because it suited her to be able to say that if the Government had the power to issue an irrevocable notice, Parliament couldn’t undo its act.  The Government chose not to argue the contrary, presumably because the point might well then have been referred to the CJEU, which would have been incendiary for the stauncher Leave supporters.  So the point went by default.

Since then, the draftsman of Article 50 of the Treaty on European Union, Lord Kerr of Kinlochard, has claimed that his view was that a notice under Article 50 was intended to be revocable.  Theresa May has fanned the flames by declining to comment on whether the Government has received legal advice to this effect.  So the point refuses to die.

Like any lawyer, ask me a question and I’ll give you an answer (for a price), even if the question is theoretical.  This is quite a pure question of law, turning on the interpretation of relatively few words.

Article 50 provides (so far as is relevant):

“1. Any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements.

  1. A Member State which decides to withdraw shall notify the European Council of its intention. In the light of the guidelines provided by the European Council, the Union shall negotiate and conclude an agreement with that State, setting out the arrangements for its withdrawal, taking account of the framework for its future relationship with the Union…
  2. The Treaties shall cease to apply to the State in question from the date of entry into force of the withdrawal agreement or, failing that, two years after the notification referred to in paragraph 2, unless the European Council, in agreement with the Member State concerned, unanimously decides to extend this period…
  3. If a State which has withdrawn from the Union asks to rejoin, its request shall be subject to the procedure referred to in Article 49.”

There is a curious point to note here which has not been given much coverage in the press.  The Article 50 notice is not really the important step here.  The important step is the member state’s decision to withdraw.  Once that decision has been made, the member state is under an obligation to notify the European Council but the notice is a procedural formality (though consequences flow from it as we shall see).  The question, therefore, is not whether the notice can be unilaterally withdrawn but whether the member state can unilaterally undecide to withdraw before it has left.

This is important in relation to one regularly aired argument, which is that Article 68 of the Vienna Convention allows Britain to withdraw its notification.  If the vital step is not the notification but the decision, the provisions of the Vienna Convention that concern the withdrawal of such notification would not by itself be of relevance for bringing the process to a halt.

(In any case, Article 68 is limited to withdrawal notifications made under Article 65 and 67 of the Vienna Convention, which are precisely set out, and it is far from clear whether these include the current circumstances.  Finally, not all EU member states are signatories to the Vienna Convention, so unless this provision forms part of customary international law – debatable – it is of no relevance anyway.)

Regardless of the applicability of Article 68 of the Vienna Convention, a revocation could not be issued if the member state had not genuinely decided, in accordance with its constitutional requirements, to change its mind.  It would not be a genuine revocation and it would be inconsistent with the member state’s notification duty under Article 50(2) of the Treaty on European Union.  So any attempt by pragmatists to reculer pour mieux sauter would in my view be clearly invalid and ineffective.

So much for correcting the balls-up.  What of the irreconcilable Remainers’ hopes?  What if Britain saw the light and changed its mind?

There is a short point which I think answers this question, which is simply to apply the straightforward meaning of the words of Article 50.  Article 50(3) of the Treaty on European Union provides that: “The Treaties shall cease to apply to the State in question from… two years after the notification referred to in paragraph 2, unless the European Council, in agreement with the Member State concerned, unanimously decides to extend this period”.  Nothing in Article 50(3) suggests that any purported revocation notice will affect this timetable: the notification has set the clock ticking and a revocation notice doesn’t stop it.  Once the self-destruct sequence is initiated, the ship’s computer will accept only a unanimous extension (or an amendment under the Treaty’s provisions to vary its effect).

Another provision of the Vienna Convention, Article 31, provides:

“A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.”

I’m confident that this does form part of customary international law.

My suggested interpretation would seem sensible and practical in the context of a complex multilateral treaty of great scope and depth.  The scope for disruption to other member states and the EU of allowing countries to issue withdrawal notices and rescind them on a whim would be unjustifiable.

It is worth noting that on this analysis it is irrelevant whether Article 68 of the Vienna Convention applies.  Whether or not Britain has the power to issue a revocation notice, it is ineffective to stop the Treaty on European Union timetable.

So while I have major qualms about contradicting the draftsman of Article 50, in my view it seems to me that the process cannot be unilaterally unravelled by Britain.  It has gone over the edge of Niagara in a barrel.  It cannot swim back upstream unless the rest of the EU decides to intervene to help.

Alastair Meeks




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Blaming the hard-line CON Brexit fundamentalists who are taking Britain to the brink

October 12th, 2017

The Stephen Bush analysis of the Brexit negotiations

In a well-argued New Statesman piece Stephen Bush makes a point that has not been heard much since the Brexit talks began. It is the hard-line CON Brexiteers who are calling the shots and taking us to the brink. He notes:-

…the loss of political sovereignty… is unsatisfying to the Brexit elite – perhaps 1 or 2 per cent of the population at best – who are in the main unworried about immigration, inoculated from economic harm, but obsessed with sovereignty and free trade.

There is the potential for a settlement in December. But we shouldn’t forget that the reason why the Brexit talks are unlikely to deliver what the bulk of voters, Remain or Leave, want is because they are being shaped not by the interests of the 52 per cent who wanted to leave or the fears of the 48 per cent who opted to stay, but by the minority interests of a small group of Brexiteers, largely concentrated within the Conservative Party.

It is having to square these factions which is making it so difficult for TMay and her team.

Mike Smithson




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To add to the febrile political mix – next week’s boundary changes cutting 50 MPs

October 12th, 2017

One thing I think is for sure – there’ll be no move to remove the diminished TMay next week. MPs will be mostly focused on the position their own seats and the impact of revised boundary plans.

Although not implemented in 2015 the law reducing the size of the House of Commons from 650 to 600 MPs is still in force and the Boundary Commission has been going through the process of redrawing the boundaries with the aim of bringing them up to date and implementing the reduction in the size of the Commons.

The plans drawn up for the 2015 election and not used have been outdated.

Inevitably there will be some winners – sitting MPs who’ll see their patch becoming even safer and some losers – those who could see their time in Parliament being terminated.

In these matters MPs tend to look first at their own individual situation rather than what’s best for their party or even the country.

A danger for Mrs.May is that it could create a group of disgruntled Tory MPs who might feel they have nothing to lose in helping to curtail her political career.

    An even bigger danger for the government is what is proposed for Northern Ireland. The earlier proposals had it that the DUP would end up with fewer MPs than Sinn Fein – something that might change their view of their support for the minority Tory government.

Wales is particularly hard hit by the changes losing a quarter of its 40 MPs.

The reduction in the number of MPs was enacted six years ago during the coalition but the original boundary changes were not implemented. The LDs blocked the move in retaliation for the backbench Tory rebellion on the progress of the House of Lords reform Bill that would have made it into an elected chamber.

It is possible that the final plans don’t get through the Commons or that the law is changed to keep the House at it current size.

Mike Smithson




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Good news for those those who took the 5/1 PB tip that Trump would not visit the UK this year

October 12th, 2017

Z
Ladbrokes price Jan 29 2017

The bet looks set to be a winner

Back in January in what now seems an eternity ago the big news was the arrival of at the White House of Mr. Trump and the speculation over the timing and form of the President’s first visit to Britain.

The talk was all about a full state visit and visits to Buckingham Palace with him being taken their in one of the Royal coaches.

Then, of course, Theresa May was riding high and wasn’t the diminished figure that she’s appeared since the general election. The Commons Speaker, John Bercow, caused some controversy by announcing that Trump would not be invited to Parliament.

Such was the certainty that that the new president would visit this year that Ladbrokes were offering 5/1 on him not doing so and the talk was of this taking place in June at about the same time at what turned out to be the general election week.

    I just wonder whether there would have been a general election at all if a Trump state visit had been scheduled for June.

Then things got put back to October amidst growing concerns about protests.

The overnight news is that he’ll now be coming in 2018 for what appears to be a down-graded non-state visit with no meeting with the Queen.

All this is good news for those who took TSE’s tip on January 29th to take the Ladbrokes “no visit in 2017” 5/1.

Mike Smithson