Posts Tagged ‘Featured’

Parliament should reject Brexit in the name of animal welfare

Great Britain has a proud history of animal protection. UK animal welfare institutions and laws have been emulated throughout the world. As a member of the EU, the UK has used its economic and political clout to ban veal crates, barren battery cages and regulate sow stalls across a market of 510 million people. Parliament should reject Brexit and call for a Peoples Vote for animals, writes Steven McCulloch (Winchester).

In the Political Kaleidoscope of Brexit, I have discussed how Brexit will impact sentient animals far more than it does humans. Animals are considered as property in law and traded as commodities. Brexit represents major changes in trade relationships with the potential for massive impacts on sentient commodities. In the UK our population of around 67 million slaughters one billion farm animals annually.

Of our 650 Members of Parliament, none are elected to represent the interests of nonhumans. The Mother of all Parliaments effectively excludes the interests of a billion sentient animals. Given this, Parliament as a whole must consider carefully the impact of Brexit for sentient animals in the UK, EU and internationally. It is in this context that I write this article as Parliament debates Brexit.

Figure 1: The UK has influenced reforms in the EU that have benefited the lives of billions of sentient animals

Boris Johnson has claimed in The Sun that the Prime Minister’s deal is a betrayal of those that voted for Brexit to enable the UK to prohibit the live transport of farm animals.

Johnson’s claim about whether the UK can prohibit live animal transport is largely correct. In the Withdrawal Agreement, the UK continues regulatory alignment with the EU for goods, including livestock. Prior to Brexit, the UK could not prohibit the live transport of animals within the single market. In May’s post-Brexit world, the UK cannot prohibit live animal transport based on the same principle. For this reason, Compassion in World Farming is lobbying for a minor amendment in the Withdrawal Agreement that would permit the UK to prohibit live exports.

I agree that the transport of live calves and sheep is an abhorrent practice. The problem with Johnson’s position, however, is twofold. First, whilst calls for the prohibition of live animal transport are laudable, banning the trade is far from certain. The UK farming industry was always going to oppose complete prohibition, and the UK government has already started backtracking in recent months. More importantly, there is a glaring problem with Boris Johnson’s position. Put simply, Johnson’s hard Brexit will cause animal welfare problems of a far greater order than live animal transport, even if the trade was completely banned. Focusing on live animal transport might appeal to those that favour a hard Brexit. However, we must look at Brexit in the round to assess how it will affect sentient animals, all things considered.

Brexit is a massive political event that will have impacts on animal protection in the UK, the EU and internationally. The major threat that Brexit poses to animal protection is the importation of agricultural products raised and slaughtered to lower welfare standards. In this context, a recent tweet by David Davies, the former Brexit Secretary, is worrying. His tweet clearly shows how hard Brexiteers on the right of the Conservative Party wish to strike trade deals in agricultural products with the US.

Davies is campaigning for a Canada-plus arrangement that allows the UK to have a free trade deal with the US. The political reality of David Davies proudly tweeting about the United States Department of Agriculture will fill anyone with knowledge of the large disparity between EU and US animal protection standards with dread. In the US there is no federal legislation prohibiting calf crates, barren batter cages or sow stalls. Nine of the 50 US states have banned one or more of these extreme confinement systems. This means that millions of US calves, chickens and pigs are kept in highly intensive conditions that do not meet their welfare needs for most of their lives.

To make matters worse, in contrast to the EU’s Council Directive 98/58/EC on the protection of animals kept for farming purposes, there are no general federal on farm laws to protect animals in the US. Of the 10 billion farm animals raised and slaughtered annually in the US, around 95% of these are broiler meat chickens. Intensively raised fast-growing US broilers have been genetically selected to grow so rapidly that they succumb to severe lameness and heart attacks. The US Humane Slaughter Act 1958 requires that animals are stunned prior to slaughter, with exemptions for religious communities. Despite this, the Act does not cover chickens, turkeys and other birds. So, the key federal slaughter law does not apply to the 9.5 billion or so chickens killed for consumption annually.

In a similar way, the US Animal Welfare Act, signed into law in 1966, excludes the majority of animals used for experimental purposes. The Act excludes cold-blooded animals (including fish) and rats of the genus Rattus and mice of the genus Mus. Hence, the Act excludes fish, mice and rats, which are the most commonly used species. Under The Animal Enterprise Terrorism Act, animal rights campaigners that cause economic loss to animal use industries can be prosecuted as terrorists. Similarly, many states have so-called ‘Ag-Gag’ laws that prevent whistleblowers from speaking out against animal cruelty and related issues such as food safety.

The US Department of Agriculture is reminiscent of Orwell’s Animal Farm and 1984 rolled into one. The government department provides the bureaucracy to administer federal animal protection laws, where the key regulations do not cover the majority of animals used in those sectors. What about chlorinated chicken and hormone beef, which have both regularly featured in the news? This video of the libertarian Conservative MEP Daniel Hannan speaking at the US-based Atlas Network to promote free trade is worth listening to on this issue.

Dan Hannan has been labelled as the brains behind Brexit. In the video, Hannan refers to the development of Gallus gallus domesticus from a by-product of the egg industry to be selected as a meat chicken to produce protein for the masses. Hannan goes on to refer to the ban on chlorinated chicken in the EU as how ‘protectionism works’. The MEP doesn’t describe the reasons why the US poultry industry routinely chlorine washes its chickens, which is to reduce the high bacterial loads resulting from raising them in extremely poor conditions. Like a good guest, Hannan thanks his hosts for the hormone beef that he has been served at dinner. He quips how the same beef, which contains ‘the wrong type of hormones’, is banned in the EU for being harmful for human health. He doesn’t explain how injecting cattle with synthetic growth hormones is detrimental to their welfare as well as being judged a significant risk of causing cancer by the EU. If there is any doubt about his support for importing chlorine chicken and hormone beef, Hannan pronounces: And one of the things that I hope will happen after the UK leaves the EU and develops its own trade policy is that we will scrap all of these absurd restrictions that prevent our consumers making a choice about what it is that they would want to eat. Hannan doesn’t describe how the agricultural industry will fight tooth and nail to prevent the clear and accurate labelling of such products.

Finally, The Sunday Times has reported how ‘Michael Gove pledges genetic food revolution’. Indeed, Gove’s own statement follows on nicely from Daniel Hannan’s tale of the broiler chicken, Gallus gallus domesticus: Gene editing allows us to give mother nature a helping hand, to accelerate the process of evolution in a way which can significantly increase yield and also reduce our reliance on chemicals and other input. There is a potential there for Britain and our scientists and our farmers to lead the way.

Intensive farming has pushed sentient animals beyond their limits. Meat chickens suffer from lameness and heart attacks; laying hens suffer from osteoporosis and fractures; pigs suffer from extreme confinement, mutilations and fighting; and dairy cows suffer from lameness and mastitis.

The EU legislates against extremes of intensive farming. Gene editing is prohibited in the EU for good reason. The last thing farm animals want is a helping hand to accelerate evolution to increase yield. It is deeply worrying that the Defra Secretary isn’t following consensus of animal welfare science and leading NGOs in this context. Campaign groups like Compassion in World Farming are strongly opposed to gene editing in animals. Genetic modification represents a move away from the precautionary principle of the EU to the profit principle of US agribusiness and big pharma. Is this what the British people really voted for in the referendum?

C00 Public Domain

Parliament will debate Theresa May’s Withdrawal Agreement and ultimately vote on it in December. Her deal effectively keeps farm animals in the single market. Perhaps one could argue that voting against her Withdrawal Agreement might make the hard Brexit discussed above more likely.

There is, however, something that stinks like a decomposing rat about Brexit. In an excellent video, the English writer and actor Stephen Fry points to the problem of forced perspective and deceptive framing. Such forced perspective and deceptive framing has been used in the debate on Brexit and animal protection. Brexit poses major threats to animal protection. These threats are orders of magnitude greater than any single animal protection issue such as live animal transport or the import and sale of foie gras.

I have described above the political reality that influential Conservative politicians desire to strike trade deals with the US. The US is something like 20-50 years behind the UK on animal welfare. Such deals, or falling back on WTO rules, have been described by the RSPCA’s David Bowles as catastrophic for animal welfare.

Even in the event of a softer Brexit encapsulated by May’s deal, the UK will lose its substantial influence to reform animal protection in the EU. After writing on Brexit and animal protection over the summer, I have come to think that the loss of political influence in the EU could as big a risk as importing lower welfare agricultural products. Brexit will make our society poorer. It is often said that Brexit will hit the worst off in society hardest. However, it is often forgotten that it is not humans that are worst off in society, but sentient animals.

Parliament should reject Brexit. Parliament should call for a Peoples Vote. Parliament should call for a Peoples Vote for Animals.

This article gives the views of the author(s), and not the position of LSE Brexit, nor of the London School of Economics and Political Science.

Steven McCulloch is Senior Lecturer in Human-Animal Studies at the Centre for Animal Welfare at the University of Winchester.

The Article 50 ruling explained – in a sticky note

joelle groganWhat does the European Court of Justice’s ruling on Article 50 mean for Brexit? Joelle Grogan (Middlesex University) explains in a sticky note (@StickyTrickyLaw).

 

 

This post represents the views of the author and not those of the Brexit blog, nor the LSE.

Joelle Grogan is a Senior Lecturer in Law at Middlesex University.

Losing the ‘Europeanisation’ meta-narrative for modernising British democracy

Despite claims of Britain’s enduring political and constitutional distinctiveness, in the period from 1997 to 2016 the UK in fact modernised its polity by following several strong ‘Europeanisation’ trends. Increasingly, British democracy came to resemble other European liberal democracies in some fundamental ways. Yet now this meta-narrative may be lost following Brexit. Patrick Dunleavy (LSE) explores some implications of the UK’s possible lapse back into rudderless idiosyncrasy.

One of the least appreciated aspects of the 2016 Brexit referendum vote may be the disappearance of a previously influential narrative of what has been happening to British democracy, and of a template for where it will go in the years ahead. The advent of the Labour government under Tony Blair in 1997 sparked a whole series of major constitutional changes. Traditionalist critics (like Anthony King in his book The British Constitution) complained that there was no coherent plan behind Labour’s changes, that ministers had tinkered with a huge range of institutions without being clear what they were trying to achieve.

There is an alternative interpretation, however, namely that from 1997 to 2016 the UK was strongly Europeanising, falling into line with patterns of political development that were (and still are) common to almost all countries across western Europe. The cumulative effect of these changes was to ‘normalise’ and ‘modernise’ UK democracy, moving away from past patterns of British exceptionalism and uniqueness compared with neighbouring states. Table 1 shows some of the most important ‘Europeanising’ trends over these two decades, and asks whether they are likely to continue post-Brexit.

Table 1: Six main ‘Europeanisation’ trends within the UK 1997–2016, and their likely future prospects

Note: For more information, see The UK’s Changing Democracy: The 2018 Democratic Audit (edited by Patrick Dunleavy, Alice Park and Ros Taylor)

Can the ‘British political tradition’ provide an alternative modernisation template to the Europeanisation/normalisation pathway after exit from the EU in March 2019? Some critics argue that Brexit, plus the SNP push for Scottish independence, taken together with a prevailing mood of ‘anti-politics’ distrustful of established elites, mean that the Westminster model has never been more contested. Its ‘focus on strong rather than responsive government distances Westminster from citizens’, according to Marsh and colleagues.

Nonetheless, given the history of the UK’s political evolution, it is not out of the question that Brexit leads to a re-emphasis on British exceptionalism, a renewed emphasis on traditional or historical themes in a ‘back to the future’ mode. Echoes of such a position are strongly present amongst Conservative Brexiteers, and powerfully underlie Boris Johnson’s (much misquoted) complaint against May’s Chequers deal, that: ‘We have wrapped a suicide vest around the British constitution – and handed the detonator to [the EU]’. What might be the elements of a resurgence of UK exceptionalism? Some possible pieces are already on the board, including: the 2011 referendum rejection of the alternative vote as a ‘reform’ of plurality rule; the 2017-18 revival of two-party dominance (produced by the successive collapses in support for the Liberal Democrats and UKIP) in England; and the re-creation of some mass membership parties.

Combined with the cultural backlash that Brexit represents, especially if a charismatic leader like Johnson becomes Prime Minister at any stage, it is conceivable that these and other developments may bring the Europeanisation trends above to a juddering halt, so that the UK’s previous ‘exceptionalism’ from European democratic patterns continues indefinitely.

The final scenario is that Europeanisation trends peter out over time, but that the challenges posed by Brexit and some radically new problems (like adapting to digital-era politics and the growth of social media) mean that the UK’s political system stagnates, or deadlocks, or moves randomly from one uncertain situation to another, with no coherent map or narrative of future development. ‘Taking back control’ of economic regulation, trade, immigration and much more is the biggest change in UK governance for half a century. It has already produced enduring crises for the party system, Parliament and the core executive, with uniquely contested governance over critical issues, and a rapidly changing political landscape. There may well be more of the same ahead as the UK lapses into rudderless idiosyncrasy, with no meta-narrative of political or constitutional progress at all.

This post draws on material from a new open access book edited by Patrick Dunleavy, Alice Park and Ros Taylor, The UK’s Changing Democracy: The 2018 Democratic Audit (published by LSE Press on 1 November 2018)

This article gives the views of the author(s), and not the position of LSE Brexit, nor of the London School of Economics and Political Science. It first appeared on EUROPP – European Politics and Policy. Featured image credit: Paul Bailey (CC BY-NC-SA 2.0)

Patrick Dunleavy is Professor of Political Science and Public Policy at the London School of Economics, and Centenary Professor at the University of Canberra. He is the lead editor of The UK’S Changing Democracy (LSE Press, 2018).

LSE Continental Breakfast 15: the ‘meaningful vote’

The latest in the series of LSE Continental Breakfasts – discussions held under Chatham House rules – tackled the issue of the Commons’ role in Brexit, and the ‘meaningful vote’ in particular. Oliver Garner (European University Institute) reports on the event.

On 25 November 2018, the European Council endorsed the Withdrawal Agreement between the UK and the EU – concluding the European dimension to the ‘two-level game’ of the Brexit negotiations. The Brexit endgame has now shifted back to the domestic level with the announcement that Parliament will hold its ‘meaningful vote’ on whether to accept the Agreement on 11 December. The impasse within Parliament on the deal secured by the Prime Minister means that there is great uncertainty regarding the outcome.

The strengths and weaknesses of the ‘meaningful vote’

Some claim that Brexit has opened fissures in the informal constitutional process upon which the UK relies. First, the paucity of deliberation on the EU (Referendum) Act 2015 led to a lack of clarity concerning the popular vote in 2016. The legal nature of the referendum as ‘advisory’, and the transposition of the General Election franchise, prompted legal claims of inequity from those disenfranchised.

Secondly, following the confirmation of the Miller judgment that the authority to provide notification under Article 50 lies with Parliament rather than executive prerogative power, the legislature promptly acted to confer statutory authority upon the Prime Minister through the EU (Notification of Withdrawal) Act 2017. Parliament thus abdicated the right to shape the mandate for the negotiations and to scrutinise the conduct of the government. These failures have been mitigated, however, by the scrutiny of parliamentarians during the reading of the EU (Withdrawal) Act 2018. This resulted in the ‘bespoke mechanism’ to scrutinise the Withdrawal Agreement provided for in section 13(1)(b) of the Act.

The requirement that the Withdrawal Agreement may only be ratified upon fulfilment of the condition of approval through a resolution of the Commons has led some to claim that Parliament is in one of the most powerful positions it has ever held in relation to the executive. The strengths of this meaningful vote provision are evident when compared to the processes for accession in 1972. On that occasion the decision to accede was approved by Parliament without any sight of the accession treaty. By contrast, the publication of the draft agreement on 14 November means that Parliament will have had full access to the content for nearly a month before the vote. This is supplemented by the concession by the government to publish the legal position of the Attorney General on the Agreement, though it had to be forced to publish his full advice. The gap between publication and the vote has also allowed space for the process of scrutiny in the Procedure Committee.

The government’s Business of the House motion allows for five days of debate with up to 8 hours of debate on each day. The motion allows for six amendments to be selected by the Speaker and voted on at the end of the final day of debate. These amendments could play a crucial role in shaping the outcome of the vote.

Despite these features, the meaningful vote procedure has weaknesses. The crucial issue is that the structure of section 13 has ostensibly left the Commons with a binary choice between the Prime Minister’s deal and no deal. Furthermore, the government has treated the political declaration on the framework for future relations as equivalent to the Withdrawal Agreement. This does not reflect the reality that, whereas the Withdrawal Agreement signifies the end of a treaty negotiation, the political declaration signifies the start of a new process. This point is exacerbated by the complete lack of any timetable for the negotiation of the future agreement. Article 184 of the Agreement provides the linkage between the two documents, and it will remain to be seen what approach the government takes towards Parliament’s treatment of the political declaration.

Finally, Article 13(1)(d) clarifies that a further condition for the ratification of the Withdrawal Agreement is the passage of an Act of Parliament for the domestic implementation of its provisions. No draft Bill of this Act has been provided to parliamentarians and therefore it is unclear how the ratification of the Agreement could change the domestic constitutional order.

The possible outcomes of the meaningful vote

Option 1: (Conditional) approval of the deal

The first and simplest potential outcome, despite its unlikelihood in light of the current parliamentary arithmetic, is that the Commons passes a resolution to approve the Withdrawal Agreement and the political declaration. Concessions by the government could be offered to parliamentarians reluctant about the deal in three main areas.

First, increasing the rights for Parliament over the future relationship negotiations could be offered. This could offer an opportunity to implement the lessons learned from the lack of scrutiny over the withdrawal negotiations. For example, concessions could be extracted whereby Parliament would need to formally approve the substantive mandate for the future relationship negotiations, in addition to ensuring for itself greater procedural rights such as access to negotiating documents.

Secondly, the government could offer Parliament more control over the way in which the Withdrawal Agreement is implemented domestically, for example by extending the transition period envisaged in Article 133 of the Withdrawal Agreement. This could be particularly salient for the control that Parliament may have over the highly controversial ‘Northern Ireland backstop’.

A final concession could be to provide parliamentarians with more control over the actual policy choices concerning the future relationship with the EU. Such a move could help to unite the diverging factions behind the deal. Those who support a far looser relationship with the EU through a reversion to WTO terms and those who support a closer relationship through a ‘Norway-style’ relationship by joining the European Economic Area (EEA) could both be persuaded to support the Withdrawal Agreement. The logic would be that this preserves the space to fight for their vision in the future.

This raises the live question of how extensively the motion can be amended so as to propose changes in relation to the political declaration whilst still allowing for the ratification of the Withdrawal Agreement. A strict position would hold that the statements on respecting the result of the 2016 referendum, including ‘with regard to’ the ending of free movement, contravenes concessions towards an EEA-style arrangement. A counter-argument is that the Commons can suggest any change in relation to this document because it is not legally binding and is only a statement of intent for a future negotiation. This differentiates the situation from attempts to amend the Withdrawal Agreement itself, which would require re-approval at the European level that the Presidents of the Commission and European Council have explicitly ruled out. The language used presents any option for the future relationship as a ‘sliding scale’ which allows for great flexibility.

It should be noted, however, that shifting contestation to the future could still jeopardise the ratification of the Agreement should there be a failure to agree to the terms of the domestic legislation. These concessions have been described as ‘low hanging fruit’ for MPs who oppose Brexit and/or the government. These politicians may be more interested in the ‘forbidden fruit’ of a General Election or a People’s Vote.

Option 2: Rejection of the deal

The Labour leadership has already published the substance of its amendment to the motion. The Opposition would decline to approve the negotiated withdrawal agreement, whilst simultaneously declining to approve the UK leaving without an agreement. Accordingly, they would pursue ‘every option’ as an alternative to these two scenarios. It has been suggested that this wording obscures the fact that the vote of the Commons is only legally meaningful in the negative sense that it can torpedo the Agreement. The amendments can only have a positive effect in a political sense. Parliament missed the opportunity of seeking to lay down legally-binding conditions on how the UK’s exit from the EU should be negotiated when it passed the Notification Act without amendments imposing such conditions.

Consequently, the suggestion that parliament could ‘decline to approve’ the UK’s departure without an Agreement obscures the reality that this is not an active choice that is within the direct control of Parliament. The reality is that withdrawal without an agreement is the default legal position upon failure to ratify the Agreement, due to the automatic operation of EU law per Article 50(3) TEU. However, this is not to say that the political effect of such an amendment would be insignificant.

Subsections 13(4)-(6) of the EU (Withdrawal) Act 2018 make provision for the situation in which the Commons does not pass a resolution approving the Withdrawal Agreement and the framework for the future relationship. Within 21 days a minister is obliged to make a statement on how the government ‘proposes to proceed in relation to negotiations’, and within 7 sitting days after that statement the minister must make arrangements for a ‘motion in neutral terms’, meaning that no amendment may be tabled, that the Commons has ‘considered the matter of the statement’. This period of up to a month of reassessment following a rejection could open up the possibility of the Government making concessions to try and secure support in a possible second vote. However, the route back to the European negotiation table seems to have been foreclosed and thus such concessions could only operate within the domestic level (e.g. as to the future domestic role of Parliament in approving the later treaty on the future relationship). Indeed, the possibility has also been raised by the Prime Minister of asking the same question again of MPs without any amendments and in contravention of the usual convention in the Commons.

One possibility is that the result of the failure of the Government to secure the Commons’ agreement on the biggest issue of the day would be for the Government to fall, despite the detailed procedure in the Act for the Government’s response to a negative vote. This is based upon the constitutional convention that the Prime Minister must be able to command the support of the House, and if not, then the Government should resign or there should be a General Election.

This situation has now been complicated by the legal procedures mandated for such events in the Fixed Term Parliaments Act 2011. Early parliamentary general elections are provided for in two situations: an explicit motion to hold a General Election passed by two-thirds of the House, or a simple motion of no confidence that is not overturned within 14 days. It is assumed that the Government would resign upon losing such a vote; the Act does not deal with this point because government resignation has always been a matter of constitutional convention, not law. However, as the Act provides for a General Election if a no confidence is passed and no other Government can procure the passage of a positive confidence motion within the statutory 14 day period, such an avenue would not suit Conservative MPs who may oppose the Prime Minister and her deal, but do not want to take a risk of a General Election that could see their party lose power.

Such MPs could therefore table a non-statutory no confidence motion (which might force the PM to resign but would not trigger the 2011 Act’s provisions for an early General Election). Alternatively, dissatisfied Conservative MPs could trigger a leadership contest through the Conservative Party’s internal processes, challenging May’s role as party leader, rather than as PM.

Option 3: Rejection of Brexit

The momentum for a third option that rejects both the Government’s deal and a ‘no deal’ exit has been building. The campaign for a ‘People’s Vote’ calling for a second referendum has been explicitly endorsed by numerous backbench MPs and former ministers. Furthermore, the possibility of ‘no Brexit’ has now ostensibly been recognised by the PM and the EU’s institutions. Labour’s leadership, whilst reluctant to endorse any one strategy, has left the door open to a second referendum through its party conference pledge to ‘keep all options on the table’. This has now found its way into the amendment proposals for the 11 December vote.

Such an option would, however, be subject to tight procedural constraints. In order to enable sufficient time for legislation on a referendum to be passed and to hold a period of purdah it could take 22 weeks before a second referendum might be held. In the first instance this would require the unanimous consent of the EU27. There have been intimations at the European level that such a decision could be made in order to enable democratic re-appraisal within the UK. Such an extension would, however cause spill-over effects into the EU’s governance timetable. The UK would be obliged to participate in the European Parliament elections held from 23-26 May 2019 if it were still a member.

The European Council has attempted to ‘internalise’ this problem in its decision on the re-allocation of the composition of seats in the European Parliament following Brexit. Such an eventuality could also raise the domestic issue of the EU (Withdrawal) Act possibly requiring amendment. Schedule 9 makes provision for the additional repeal of the European Parliamentary Elections Act 2002 in addition to the European Communities Act 1972 on ‘exit day’. It is therefore unclear whether the retention of existing EU law provided for in section 2 and section 3 could currently provide the legal basis for the elections.

There has been a counter-argument that such considerations would not arise in practice because the timetable of 22 weeks is overstated.

Just as Parliament’s initial power to authorise an Article 50 notification was confirmed through a court challenge, so too the question of whether the UK has the power to revoke that notification has become the subject of judicial proceedings. On 27 November the Court of Justice of the European Union hearing in the Wightman case took place. This seeks to answer the question referred by the Scottish Court of Session of whether a Member State may unilaterally revoke its notification of intention to withdraw. The petitioners in the case include Scottish MPs, MSPs, and MEPs who are explicitly seeking legal certainty in order to guide their voting on the Agreement in the various chambers.

The expedited procedure adopted by the European court has also shown sensitivity to the timeframe of the Commons vote – the non-binding Advocate-General Opinion was published on 4 December with the full judgment scheduled before the 11 December vote. The Advocate-General has proposed that the Court of Justice should declare that Article 50 allows the unilateral revocation of the notification through a formal act to the European Council before the expiry of the two-year period. Such a revocation would have to be in accordance with the national constitutional requirements and would also have to respect the principles of good faith and sincere cooperation at the EU level.

In the event that the Court follows this opinion and finds that the UK may indeed unilaterally revoke its notification without the approval of the European Council, the issue of the legal basis for revocation in domestic law arises. It has been suggested that a fresh Act of Parliament would be necessary for revocation; alternatively, the argument has been made that the exercise of such a power could fall within the terms of the 2017 Notification Act. Given the clear parliamentary intention to leave the EU manifest in various provisions of the EU (Withdrawal) Act 2018, legislation authorising revocation would be needed to avoid legal uncertainty. In either situation, however, the dramatic possibility emerges of such a revocation being exercised without the requirement of a popular mandate through a second referendum. The argument is that Parliament could consider such a move if it were ‘staring down the barrel’ of a no deal exit in the New Year. What may appear as a barrel of a gun to those opposed to Brexit, however, may appear as an escape hatch to freedom for hard Brexiteers drawn towards a no-deal Brexit.

Despite the options canvassed above for preventing Brexit in theory, the rejection of the Withdrawal Agreement and the political declaration on the framework for the future relationship with the European Union could lead to a situation in which Parliament is ultimately disempowered in practice. Parliament is undoubtedly sovereign, but there remains the practical question of how it would take control of the end-game of Brexit. Under Standing Order 14, the business of the House of Commons remains under the control of the government of the day, which also has control of when Opposition days or back-bench days are granted. The only operative convention would be that any decision to hold a no confidence vote under the Fixed Term Parliaments Act would take precedence over the ordinary business of the House. It has been claimed that it is fanciful to imagine that Parliament could suddenly gain control of the business of the Commons to such an extent that it could pass the legislation necessary to revoke Article 50 and/or hold a second referendum.

Even in the moment in which the government could be facing near unanimous disapproval of its policy on Brexit, the procedural rules may still ensure that it ultimately retains control over the direction of the end-game. Therefore, it may be suggested that the only realistic ways in which the catch-22 could be broken is if the PM herself decided that the only escape route would be to go back to the public, or if a new Government emerged following the resignation or defeat of the old.

The procedural and substantive limitations on Parliament

The Commons’ ‘meaningful vote’ on 11 December will see Parliament occupy a position of great political power in relation to the executive. Indeed, the effects of this position have already been witnessed in the unprecedented barrage of criticism she has faced in her defences of her deal in the Commons.

Crucially, however, the capacity of this political power to secure legal results is constrained by the procedural rules of Parliament, which maintain the government’s control over Commons business. The power is further constrained by the operation of EU law contained in Article 50 that is beyond the direct control of Parliament and will see the UK automatically leave on 29 March 2019 regardless of whether the Withdrawal Agreement is ratified or not.

These are the explicit formal constraints on Parliament. One may also detect a more implicit yet no less powerful substantive constraint that has constrained Parliament over the government’s policy on Brexit. Despite Parliament’s theoretical sovereignty to make or change law as it wishes, in the context of withdrawal the legitimacy of the exercise of this power has been bound by the political obligation to respect the ‘will of the people’ expressed in the Leave vote. It remains to be seen whether the only way to resolve the present disjuncture between popular will and parliamentary sovereignty is through a reversion to the people on the question of EU membership.

This post represents the views of the author and not those of the Brexit blog, nor the LSE.

Oliver Garner is a PhD researcher in the Law Department of the European University Institute.

Is it the English question – or the British question? The three strands of Britishness

John Denham finds that the majority of those who identify as primarily English or equally English and British are also strongly British; those who are primarily British, on the other hand, seem to hold a different outlook to those who combine English and British identities more fully. He suggests that more attention should be paid to the evolution of British identity as English identity. 

Most England residents identify as both English and British, though placing themselves on a range from ‘English not British’ to ‘British not English’. Twenty years ago, identity did not correlate with political choices, but in recent years those who identify as primarily English (‘English not British’ and ‘more English than British’) have been more likely to vote Leave and for parties on the right; those who are primarily British have tended to vote in the opposite direction. The votes of the equally English and British sit between the two ends of the identity spectrum.

Despite this correlation it has not been clear what people mean when they say they are English or British, nor how their understanding of national identity may be related to their political choices. It has been suggested that the adoption of different national identities within England reflects alternative narratives that offer an explanation of different economic and social experiences. Recent polling by the BBC and YouGov, and additional polling by the Centre for English Identity and Politics sheds some new light on the relationship between the two identities.

Figure 1

Data by BBC/YouGov

Taking the population as a whole: 83% are strongly (‘very strongly’ plus ‘fairly strongly’) English and 85% are strongly British (Figure 1); 61% say they are proud to be English, and 58% proud to be British (with 6% embarrassed to identify as English and 6% embarrassed to identify as British). Asked which characteristics are associated with English and British identities, the responses are remarkably similar (Figure 2).

Figure 2

Data: BBC/YouGov; CEIP/YouGov

This similarity does not necessarily mean that the two identities are synonymous or interchangeable; but any distinction is not defined by the characteristics associated with them.

English, British or both?

On the Moreno scale (Figure 3) the largest group is the equally English and British (34%). Those tending to emphasise English identity (more English than British (18%) and English not British (16%)) outweigh those who emphasise their British identity (more British than English (14%) and British not English (8%)). The balance between Englishness and Britishness has a discernible impact on respondents’ sense of their strength of national identity, national pride, and their perception of political issues.

Figure 3

Data: BBC/YouGov

Openness to other identities

One of the differences between English and British identifiers is their openness to non-English identities (Figure 4). The extent to which people hold a strong European identity is a significant factor in balance between their English and British identities. (The survey respondents included 7% who identify with other nations inside or (8%) outside the UK. Those who also identify as British are included in our analysis but those who placed themselves as Other or Don’t know are not.)

The question which identity ‘best describes the way you think of yourself’ does not define sharp boundaries between identities. Both the English not British and the British not English include people who hold both identities, but the English not British are less likely to reject the other identity. 62% of those who describe themselves as English not British nonetheless say they are ‘strongly British’. Only 28% of the British not English say they are ‘strongly English’, and 33% say they do not identify as English at all. Only 7% of the English not British say they do not identify as British at all.

By contrast, the British not English are more likely to strongly identify with other nations inside the UK (29%) and outside the UK (20%). The more British than English are also twice as likely as the other English identity groups to identify with other nations inside (11%) or outside the UK (10%). 8% of the English not British identify as European, rising to 28% of the equally English and British, 40% of the more British and 38% of the British not English.

Rootedness

Differences in worldview and experience are also apparent from the sub- and supra-nation identities. The primarily English, and the equally English and British, are significantly more likely than the primarily British to have a strong identity with a region, country or place within England.

Figure 4

Data: BBC/YouGov; CEIP/YouGov

In the starkest divide, 61% of the more English than British say they strongly identify with a region or part of England; only 37% of the British not English do so. Previous polling has shown that the primarily English and the equally English not British are more likely to be found outside the major metropolitan cities.

Pride

82% of the English not British and of the more English than British are proud of their English identity (Figure 5). This falls to just 13% of the British not English. However, it is not the British not English who are most proud of being British: only 52% of them are proud to be identified as British. Most proud of Britishness are those with a strong sense of both identities (more English, equally English, and more English than British all score 65% or above). Englishness is a strong marker of pride in both English and British identity; being British alone is not a source of strong national pride. The British are also more likely to hold a negative view of both Englishness and Britishness. 14% of the more British than English and 15% of the British not English would be embarrassed to describe themselves as English.

Figure 5

Data: BBC/YouGov; CEIP/YouGov

National characteristics

The different identity groups have different perceptions of the characteristics associated with Englishness and Britishness (Figure 6). The primarily English and the equally English and British tend to associate both identities with a broadly positive set of values. On the other hand, the more British than English and the British not English are less likely to associate either British or English identity with the same characteristics.

Figure 6

Data: BBC/YouGov; CEIP/YouGov

To give one example, 71% of the English not British associate Englishness with Tolerance but only 51% of the British not English do so. Similar patterns can be found on Welcoming, Friendliness, Generosity and Plain Speaking, and Outward looking.

Political perceptions

The different groups on the Moreno scale have different perceptions on some key issues of politics and power (Figure 7). While only a minority of English residents of any identity feel they have real influence at local and national level, the primarily English are least to feel well represented. They are significantly more likely to support an English Parliament, and to want the interests of England to be prioritised over the future of the union.

Figure 7

Data: BBC/YouGov

Earlier work has also shown that English identifiers were much more likely than British identifiers, (or those living in Wales and Scotland) to credit the EU with significant influence on domestic policy.

The British question?

Englishness and Britishness do not appear to represent different characteristics in the popular mind, but an emphasis on an English or British identity reflects different perceptions of the world. Those who are equally English and British, and primarily English, tend to identify strongly as English and British, have high levels of national pride, and strong roots in English localities. They associate the same characteristics with English and British identities. The primarily British have weaker local roots, are more likely to be European, do not have such high levels of national pride, and are more likely to be antipathetic towards the English. They are less likely to associate either English or British identities with positive characteristics. Those who feel that their own and English interests are not adequately represented by the political system are most likely to emphasise English identity and want England’s interests prioritised.

While not providing a causal explanation, the different worldviews revealed by this data are at least compatible with voting patterns. Those most open to non-English identities, including European, were most likely to vote Remain. To the extent that migration is seen as more culturally unsettling to those with more deeply rooted local identities it may underpin votes for parties seen as more hostile to immigration. On most issues, however, there is less difference between the equally English and British, the more English and British, and the English not British between them and the more British than English and the British not English.

Our analysis suggests that as much attention should be paid to the evolution of British identity as English identity. The majority of those who identify as primarily English or equally English and British are also strongly British, so we need a better understanding of why those who are primarily British seem to hold a different outlook to those who combine English and British identities more fully. The current evidence might suggest that there may be least three strands of Britishness:

  • One similar to Englishness in being rooted in England, and strongly patriotic, though less concerned with English interests, more open to European identity, and more supportive of the union.
  • A second reflecting a migrant heritage, perhaps seeing Britishness as a citizenship as much as a national identity.
  • A third associated with the more liberal, cosmopolitan, more highly educated part of society that is more likely to disdain both national identity and patriotism.

Understanding this more complex notion of Britishness would help shed more light on the political salience of both English and British identities.

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About the Author

John Denham is Professor at the Centre for English Identity and Politics, University of Winchester.

Remembering Lord Jeremy Heywood

Dame Minouche Shafik pays tribute to the late Lord Heywood, an outstanding civil servant and a good friend to LSE.

 

Jeremy Heywood, who passed away on 4 November 2018, was the outstanding civil servant of his generation and the indispensable advisor to four prime ministers.  He was also a friend of 33 years since we met as students at LSE while doing an MSc in economics.  We formed a study group with other friends and would meet regularly in the then smoke-filled Wrights Bar or occasionally in the Shaw library to exchange notes and solve problem sets together. Jeremy was clearly the most clever among us, but he was also mischievous and fun – it didn’t take much to extract him from the library where he was annotating obscure economics articles in his tiny, orderly handwriting to go out for a glass of Pinot Grigio (his favourite).

Jeremy had been sent to LSE on a scholarship from the civil service.  That bit of public investment paid off handsomely in a 35 year career culminating in becoming Cabinet Secretary in 2012.   He was at the centre of every major policy challenge facing the UK — Black Wednesday, the G20 summit in Gleneagles with its focus on making poverty history, the 2008 financial crisis and most recently, Brexit.  I was a Permanent Secretary during the 2010 election when the UK had the first coalition government in decades and Jeremy coordinated efforts across Whitehall to make sure that government departments had prepared for all eventualities so that the will of the people could be done.

No 10 was his domain.  Prime Ministers came and went but Jeremy was always there asking penetrating questions that made policy better, working tirelessly, keeping the machinery of government ticking over, juggling crises, nurturing his beloved civil service.  He hated the limelight which inevitably came with being the most senior public servant in the land.  He always emphasized the “servant” over the “public” aspect of the role.  It was never about him but always about us.  He was the best of us but he used his considerable talents to make us the best of ourselves.

Jeremy was fiercely loyal to his friends.  Some might say it was because he did not like change but I think it was because we kept him grounded while high politics swirled around him.  He knew we loved him for who he was.  He tried to answer all emails within an hour – whether you were the Prime Minister or his friend organizing an outing to the theatre.  He was deeply egalitarian in his soul – from royalty to the most junior official – everyone was treated the same.   His funeral was a roll call of “the great and the good” but what was most striking was the number of junior civil servants who told stories of Jeremy supporting them and how his soft-spoken probing encouraged them to make their ideas better.

In his professional life, Jeremy embodied the values of the civil service – honesty, integrity, impartiality and objectivity.  He worked with hundreds of politicians, some of whom he liked and respected, others he may have not. But he served them all equally well.  What made him special was his ability to give candid advice (and thereby stopping many bad ideas) and yet finding creative ways to achieve politicians’ objectives in the best way possible.  There is something very selfless (and dare I say noble) in such an approach and it is why Jeremy defended the civil service when it came under attack to remind us it is an institution that is the envy of the world.

Jeremy understood the importance of investing in the next generation and, in addition to the many he mentored personally, he developed a programme for training talented UK civil servants which was competitively awarded to the LSE.  Each year a cohort of (hopefully) 30 new Jeremys goes through the Executive Masters in Public Policy brimming with new ideas and a commitment to the public good.

His foibles were endearing.  His academic brilliance was offset by complete incompetence in all things practical.  Jeremy never could drive properly, or cook, or fix anything.  He hated exercise and for months sported a flimsy bit of gauze wrapped around his wrist so he could avoid having to do press ups on Clapham Common.  He had more Blackberry phones (simultaneously) and held onto them for longer than anyone.

And he adored his family.  He and Suzanne supported each other unconditionally and that was never more apparent than over the last year.  Those of us who watched Suzanne’s Herculean efforts all thought that if you are ever in trouble, you want her on your side.

Conversations during our dinners out were dominated by the children – their evolving political views and interests, musical accomplishments, and latest holidays.  He was so proud of them and loved watching them grow up and discover the world.  He also loved a good party, supported by his famous playlist, and was often the last one on the dance floor.

Jeremy was like the sun for so many of us – we all orbited around him.  This was certainly the case for his friends, for his colleagues in Whitehall and for his family.  That is why the world feels a bit colder and darker without him.  His new title – Lord Heywood of Whitehall – and his burial in Westminster Abbey and the creation of a foundation in his name to support innovation in the civil service are fitting tributes to his enormous contribution to public life.  He was a true servant of the people and a loyal and loving friend to those of us who had the privilege of knowing him.

____________

About the Author

Dame Minouche Shafik is the Director of the LSE.

 

 

 

 

 

Resist, Rebel and Remain: the nation deserves and demands a second chance

jvrParliament should vote down Theresa May’s Brexit deal on Tuesday. John Van Reenen (MIT/LSE) writes that while the argument for remaining in the EU is fundamentally moral and political, and not economic, it is important for lawmakers to know that Brexit will make their constituents poorer. Ultimately, however, the nation deserves and demands a second chance to stay in Europe and to forge a new path with our allies and reject the crude nationalism and empty slogans of the Brexiters. The British people are better than this, he argues.

Members of Parliament will vote on Prime Minister’s Theresa May’s Brexit deal to on 11 December. Without hesitation, they should vote it down.

More and more people have realised that Brexit was built on a fantasy that we could keep all the benefits of being in the European club without paying any of the membership fees – what leading Brexiter Boris Johnson called the ‘Have Your Cake and Eat It Strategy’. Well, it turns out that having a cake after you have already eaten it once is not so tasty after all. Theresa May has brought back an unpalatable deal that no one likes because it crystallises the reality of what leaving the European Union (EU) actually means. To get easy access to European markets you have to play by the rules of the club – and once a country leaves the club, it no longer gets a vote on what those rules are. So much for taking back control.

The argument for remaining in the EU is fundamentally moral and political, not economic. However, it is important for lawmakers to know that Brexit will make their constituents poorer. Whereas the wealthier can ride this out, it is families on middle incomes and the less well off who will feel the financial pain most sharply. The economics of Brexit are very simple. Being outside the EU inevitably means higher costs of doing business with our nearest neighbours – so there will be less trade, and less trade will make us poorer. The more distant a relationship we have with the EU, the bigger will be our pay cut. This will be hugely painful if there is a disorderly ‘No Deal’; it will hurt to a lesser degree with a softer approach. The formal amounts that the UK pays into the EU disappear in the rounding error compared with these economic losses. (The section at the end of this blog goes into the gory economic details for the truly dedicated reader).

Oh, why EU?

The EU was born from the carnage of the Second World War and has cemented together 28 fractious nations in our troubled part of the world. For thousands of years, European tribes were killing each other in war after war ending in the bloodbath of the first half of the twentieth century. Cooperation within the EU has meant that the fights are now over fishing quotas rather than in battlefields. The challenges facing the human race today require the same spirit of cooperation – on climate change, terrorism and mass migration. These are global problems that cannot be seriously tackled by the UK in glorious isolation – a nation with under 1% of the world’s population (and shrinking).

It has now been well over two years since the EU referendum and the political tectonic plates of the world have shifted. President Trump is the cheerleader of a crude nationalism that reflexively blames all ills on foreigners. His solution is to build higher walls and wreck international agreements. Political bosses in Brazil, Hungary, the Philippines and Russia are stomping their boots to the same beat. They and their cronies are actively undermining global cooperation on climate, trade and terror. This rising tsunami of bile manifests itself differently in different countries, but in the UK, its name is Brexit.

It is our duty to fight against it with all our might.

A plague on pragmatism

The British people are usually a pragmatic bunch. Many pro-Remain MPs may be tempted to support May’s paltry deal fearing that the alternative is a disruptive No Deal, which would be much worse. But the risk of this is low – if Parliament votes the current deal down, Article 50 can be put on hold. This will then create an opportunity for a coalition of MPs to pass legislation for a People’s Vote – a new referendum where the choice is May’s deal, No Deal or remaining in the EU.

I believe that Remain will win this vote. But even if it does not, it is the right democratic course of action. We do not hold an election and then have an eternal dictator. Leavers voted for Brexit because it meant a myriad of different things to different people. Now we have the concrete alternatives, it is right that citizens have the choice to decide whether this is really what they want to bequeath to their children and grandchildren.

Some say that another vote will create more anger and conflict. The reality is that we already have a lot of anger and conflict, which will persist for a long time to come. Many people voted for Brexit because of their fury that they had been failed by the status quo. And they were right to be angry – after inflation, wages are no higher than they were a decade ago. This is a worse performance than during the Great Depression, and radical things are needed to change this. Leaving the EU will do nothing to improve this situation: indeed, by depressing productivity, trade and investment, it will make things much worse.

Others worry that a narrow Remain victory will embolden the far right. But I have news – they are already emboldened. After a Brexit win, they will push for an ever-greater split from our European neighbours, ever-greater attacks on immigrants and ever more authoritarian laws. Throwing meat at a vicious dog does not make it go away. It whets the appetite for something closer to the marrow.

But isn’t it all worth it to reduce EU immigration? As she did when she was Home Secretary, Theresa May will promise immigration reforms to create a more hostile environment for those wanting to come here. Playing the migration card is Brexiters’ favourite tactic when all their other arguments have been debunked. But all this ‘taking back control of our borders’ is codswallop, as we never lost control. We allowed EU citizens to come here in return for the right of our citizens to go there – and also because free movement is the condition of being part of the largest single market on the planet. EU immigrants have not harmed average pay or jobs. In fact, since they are younger, healthier and better educated, they pay in more in tax than they take out in welfare, so they have been subsidising the schools, hospitals and police services enjoyed by us native Brits.

C00 Public Domain

A radical future for rebels

The EU is not a perfect organisation. A commitment to our place within it also means we have a duty to reform European capitalism, which has failed many ordinary people. This requires radical measures to make markets work better for all people. The growth of mega-firms has pushed the balance of power too far away from working families and customers. And the growth of mega capital cities, such as London, has sucked up too much power compared with localities. Redressing this imbalance of power is helped, not hindered by being in the EU. Taking on the tech titans and insisting on protecting our data are better done with a single market of half a billion people than the less than 70 million inhabitants of the UK.

Populist anger can be cathartic. It reflects a hunger for change, especially among the young, and this makes politics more exciting, more febrile and more plastic than I have known in my lifetime. The movement for a People’s Vote has not come from the main political parties who remain timid. It has come from civil society, from social media and from the streets where 700,000 people marched only a few weeks ago to demand a say on the Brexit deal.

By really committing ourselves to Europe, we can reinvigorate our continent and ourselves. Let us fight for the cause of decency and fairness rather than succumb to this tawdry deal and slouch into a gradual and irreversible political, moral and economic decline. Dumping May’s deal is not without risks. But nothing in life ever is. It is clear that we are at a pivotal moment in history. The UK has a chance to forge a new path with our allies in Europe and reject the crude nationalism and empty slogans of the Brexiters. The British people are better than this.

The nation deserves and demands a second chance.

This article gives the views of the author, and not the position of LSE Brexit, nor of the London School of Economics and Political Science.

John Van Reenen is Professor at the Massachusetts Institute for Technology (MIT) and Centre for Economic Performance, LSE.

Now the economics bit

Even though the economic arguments for EU membership are less important than the political and ethical case, I am a professional economist, so here are a few notes for the interested.

It is abundantly clear that Brexit entails an economic loss. The only real question really is how big the loss will be under different forms of Brexit. The best discussion of this is here from the politically independent think-tank ‘UK in a Changing Europe’.

The conclusions are similar to my pre-referendum analysis as well as the recent Brexit assessments by the government, the Bank of England and NIESR. Indeed, all credible independent studies are in broad agreement that Brexit reduces average incomes, but the softer the Brexit; the lower will be the economic losses. This is why there is such a strong consensus among economists that leaving the EU will economically harm the UK.

The strength of this consensus is similar to that among medical experts about the harm caused by smoking or among meteorologists over the reality of climate change. This is why it is so ridiculous that the BBC and other broadcasters in the name of ‘balance’ give equal prominence to pro-Brexit economists as they do to those reflecting the profession’s opinion. The bulk of the UK press is virulently pro-Leave so also heavily promotes the motley Brexit crew, whose models have been thoroughly repeatedly debunked.

Often one hears the refrain that ‘economic forecasts are always wrong’ so should be ignored. A doctor cannot predict the age at which you will die if you start smoking two packets of cigarettes a day, but she is on firm grounds forecasting that your new smoking habit will be bad for your health.

Brexit economic analysis is generally not a forecast of what will be the exact size of the economy post-Brexit, but rather an analysis of the difference in economic outcomes if the UK leaves compared with if the UK remained. Brexit will not abolish the technological progress that the economy has managed to exploit over the last 250 years in order to grow. It will just mean that we are poorer given whatever the state of technology and world demand conditions that emerge over the next few decades.

A variant of the above Brexiter argument is that economists’ forecasts have all been proven wrong by how well the UK economy grew after the vote in 2016. For example, David Davis the former Secretary of State for Brexit said that ‘previous Treasury forecasts had been proved wrong and were based on ‘flawed assumptions’citing in evidence that the UK economy had grown by over 2.8% in the 18 months since the referendum whereas the Treasury had forecast it would shrink.

This is an example of willful misunderstanding. The general prediction was that the economy in the short-term would grow by about 2% less than expected because of Brexit. And in fact, this is broadly what has happened since the vote – the UK economy has slipped from being at the top of the G7 growth league to the bottom. Moreover, observers reckon that GDP per capita is about 2% lower than expected due to the Brexit vote.

It is true that many economists thought that there would be a bigger immediate hit from the Brexit vote, whereas it took a few quarters before the economy started to slow down significantly relative to other countries. Therefore, although the forecasts got the overall hit about right, they got the timing wrong.

There are two reasons for this. First, modelling assumed that the negative immediate impact would come from the rational expectations of consumers of lower future real income growth. However, many people actually believed the propaganda on the Leave side that there would be no economic fallout from Brexit, so they continued spending much as before. It was only gradually when reality dawned that consumer confidence took a knock (for example, when the large fall in the value of sterling started to feed through into higher food prices and more expensive foreign holidays).

The second reason was that the Treasury analysis assumed that Article 50 would be activated immediately, whereas it was nine months later when Theresa May did this. The slowdown of the economy followed this as uncertainty started to spike.

Finally, it is worth pointing out Brexit has not yet happened. The majority of work, including my own, focuses on what happens after Brexit occurs, which is currently slated to be after the ‘transition period’ ends in 2020. Negative effects now are due to expectations about what might happen in the future, and these are notoriously hard to model.

The trouble will really start when true Brexit hits the fan.

 

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