Sunday 20 January 2019

A light at the end of the tunnel?

It has been a recurring theme of mine that we could be sleepwalking to disaster on a hard Brexit. Despite repeated statements from centrist politicians across the Party divide that there is no majority for in the House of Commons for such an outcome, it remained and remains the fact that  this is what is currently enshrined in Primary Legislation and is scheduled to happen unless contrary legislation is passed at some time before 29th March.

And I have pointed out repeatedly that it is exceptionally difficult for Members of Parliament to pass Primary Legislation without the co-operation of the Government. For the Government, even without a majority, normally controls the business that Parliament can conduct.

Against that background, while Parliament can pass all sorts of motions, even wrecking amendments tagged on to different legislation, unless they can gain control of the "levers of power", the statutory clock keeps ticking. And, unless there was a different Government, either as a result of a General Election or as a result of a political earthquake leading to an (at least temporary) Government of National Unity,  (neither of which seemed very likely), I couldn't see how that would change.

And, last week, both of these options essentially disappeared. For having ruled out, for the moment, endorsing this Government's deal on Tuesday past, the following day they, in one vote, also effectively ruled out the possibility both of a General Election or of a different Government being formed from within the current Parliament.

Which on the face of it made things look even bleaker. We were continuing down the track to a point where it would indeed be "This deal or no deal" and it certainly could not be ruled out that the determination of nobody to lose face would end up with the fifty or so hard Brexiteers on the Tory back benches aligning with the twenty or so hard Brexiteers on the Labour front benches to carry their way against the more than five hundred of their colleagues otherwise minded.

But, I may have spoken to soon. For something else happened last week. A group of like minded MPs did finally come up with a plan to stop (at least for the moment) a hard Brexit, without having Government support.

The plan is in two parts. Firstly, masterminded by Dominic Grieve, it involves voting to change the standing orders of the House so that, temporarily at least, Government business no longer automatically takes priority and that proposed legislation with a certified advance level of support (the suggestion is 300 MPs) should be found Parliamentary time to proceed. This appears likely to pass.

The second bit is however that legislation. The European Union (Withdrawal) (No.3) Bill, likely to be introduced by Yvette Cooper with the support of the Tory Remainers, Liberal Democrats and Nationalist Parties.

This does two things. Firstly, it changes the Exit Day contained in the European Union (Withdrawal) Act 2018 from 29th March to 31st December. Secondly, it instructs the Government to seek an extension of the Article 50 process to align with that date.

I am sure Corbyn won't want to vote for this but it is difficult to see how he could justify not doing so and thus this is also likely to pass. Obviously, it also has to pass the Lords, where the Government might try to deny it time but there is a big remainer majority there so I think that could be overcome. Finally, assuming it becomes law, the Government might still refuse to act as instructed I think that an unlikely response, particularly as, by then, it would be too late to have a General Election before 29th March.

So we can all then breathe a temporary sigh of relief.

BUT, this still does not solve the problem of where this ultimately ends up.

So I want to move on to that and to the strategic problem of those opposed to a hard Brexit. They are split more or less down the middle on what they want instead.

On the one hand there are those who want a second referendum. Now, this is all very well but there are simply not enough of them. Last week, 71 Labour MPs signed a letter to Jeremy Corbyn calling for this to become Labour policy. That is, with respect, considerably less than a third of the Parliamentary Labour Party.  Sure, there are some front benchers who couldn't sign and, we are told, a few other back benchers who didn't sign for "logistical" reasons (whatever that means) but nobody seriously suggests  that would get us to anything like half of Labour's Westminster representatives. Why? Setting to one side the handful of Brexit true believers, three reasons. Firstly, some, no matter how disappointed they might be with the June 2016 vote, believe it wrong in principle and dangerous to our democracy to try and reverse it, particularly without even an election mandate to that effect. Secondly, others fear what such an attempt might mean for the longer term electoral fortunes of the Labour Party in leave voting areas. Thirdly, others still think that we would just lose again, only this time with much less scope to argue that our defeat meant anything but the hardest of Brexits. Obviously, there is a degree of overlap but that there is a combined PLP majority for the conclusion that a second referendum is not the answer, isn't really in dispute. And,to be fair to Corbyn, this is a dilemma that would face any Labour leader. To that extent his personal euroscepticism  is largely irrelevant.

But then let us look at the other side of the coin. If there is not going to be another referendum, what do we want instead? Let's start by saying this. For resigned leavers ("wish we weren't leaving but we are"), there is actually nothing very much wrong with Mrs May's deal. The legally binding bit does not deal at all with our future relationship at all, excepting the backstop bit which, in leaving us in regulatory alignment with the EU potentially in perpetuity, understandably annoys the ERG, but, since we want to remain in that regulatory alignment anyway, should hardly bother us. Sure it's not as good a still being in the EU but it doesn't even rule out that being the long term conclusion of being "rule takers not rule makers". It just gets us out in an orderly manner. As for the "political declaration" if there is a real criticism it is in its vagueness. But it is only a political declaration. It cannot prevent a future British Government from wanting relations between the EU and the UK to develop in a different way, whether that Government is lead by Boris Johnson or Anna Soubry or even (more improbably) Jeremy Corbyn. So, in the end, as I have said since I started writing about this back in October, all logic points ultimately to Parliament approving something that, if it is not Mrs May's deal, certainly looks very much like it. If you see Keir Starmer interviewed in detail on this, he struggles to say what is wrong with the Agreement (as opposed to the political declaration) and yet, in a legally binding sense, we are only voting on the former.

The question ultimately is who holds out against that? The ERG and DUP certainly but I fear the second vote crew might themselves be becoming as much of an obstacle, particularly if Corbyn continues to make an unholy alliance with them in voting, to the death, against Brexit and in favour of something indefinably "better".

I've said from the start that ultimately Labour votes will decide this. For good or ill. But at least we might now have a bit more time to decide.

Sunday 13 January 2019

In Defence of Alex Salmond.

I have tried to avoid commenting on the Salmond matter for the very good reason that I have no idea if there is a substantive matter at all. Nobody does.

Certainly I am aware that there is an ongoing Police Inquiry (a matter to which I will return) and that it appears that it relates to allegations of some sort of  past sexual misconduct. But that is all I know.

I do not know if the allegations are true and/or, even if taken pro veritate, they would constitute criminal offending. Nobody does.

That is what even the Police are only still trying to find out.

I defend people for a living. Many are guilty. Even some of them found not guilty were probably guilty!  But it is a far from unknown phenomenon for someone to be investigated in good faith by the Police only for them to be entirely cleared  and/or for it subsequently to be called into question whether there was ever any crime at all. Don't just take my word for it, consider the couple who spent two nights in the jail before Christmas accused of flying drones around Gatwick Airport.

Now, it is no secret that I have no time for Mr Salmond but that is not the point! He is as entitled to the presumption of innocence as much as the next man and it seems to me that some of his political enemies have completely lost sight of this. An internal SNP source is quoted in today's papers as attributing the difficulties the Party is in to Mr Salmond having found himself complained about. But, with respect, that would only be the case if the complaints were well founded. And, unless there has been an outrageous breach of confidentiality, that is something the source cannot possibly know. Similarly, Richard Leonard took it upon himself in the Scottish Parliament to describe the complainers (a word I use in the technical legal sense) as "courageous". How does he know this? Has he met them? Does he even know who they are? If not how can he possibly pre-judge their credibility and reliability in this manner? If (and it is a big if) this matter should ever proceed criminally these are remarks upon which any competent defence team will undoubtedly seize. Mr Leonard should shut up. As indeed should any other politician tempted to comment on the substantive background here.

And that leads me on to my second point. No matter what a mess the Scottish Government (both political and permanent) made of the original investigatory process here, the idea that there could be a public inquiry of some sort at this time is absurd. If (again I emphasise a big if) there ever are criminal proceedings then inevitably the matters to be covered by such an inquiry would involve testimony that would also be potential testimony at any trial. What were the nature of the complaints?  Were they the same complaints as had been made in 2013? Why were they referred to the Police in 2018 but not in 2013? What has Mr Salmond previously said to third parties, not least Nicola Sturgeon, about his response to the complaints? What has Mr Salmond himself got to say about it? Actually, I'll answer that final question, because like any person under criminal investigation, he would be entitled to say nothing at all. Indeed, that would almost certainly be the legal advice that he would be given. But, never mind that, in the aftermath of such an inquiry, how could Mr Salmond conceivably receive a fair trial when much of the "evidence" had already featured in every newspaper in Scotland? Enough of the amateur Perry Masons at Holyrood. Let due process take its course. There might well be cause for an inquiry when other matters are concluded but, on any view, we are still some way from that.

And thirdly, there is another criminal inquiry, albeit not by the police but by the Information Commissioner, now underway in which, at least on the known facts, Mr Salmond has legitimate cause for complaint. How the fact a referral was being made to the Police ended up on the front page of the Daily Record?  Consider what happened here. In mid August, Leslie Evans told Mr Salmond that the outcome of the (until then internal Scottish Government) Inquiry was to refer matters to the Police and that the intention was to make that referral public. Mr Salmond then indicated that he would intend to take legal action to prevent the public element of this as he believed the investigatory process to be flawed. A matter on which he was vindicated last week, albeit not, as I read it, on quite the same basis as the challenge was commenced. Now, that original proposed challenge might have been a hopeless battle, in that the referral itself was not something that could be prevented in the civil courts and once a Police inquiry commenced matters would inevitably, at some point, have reached the public domain. But again that's not really the point! For, to head off any possibility, of the matter remaining confidential, somebody decided to tell David Clegg.  I make no criticism of Mr Clegg. It was a great scoop and if it was reprehensible for journalists to publish leaked Government information then the political pages of  the newspapers would become pretty dull places. Nonetheless, whoever leaked this, assuming they did so deliberately, almost certainly broke the criminal law. And did so for the precise purpose of damaging Mr Salmond. It will almost certainly prove impossible to establish an individual's guilt for Mr Clegg will, quite properly, protect his source. Thereafter, while only a small circle of people could have done the leaking,  it is still quite a big small circle, albeit clustered around one, or possibly two, particular people. It is an open secret that Mr Salmond's team have a principal suspect and that that suspect is not part of the permanent government. Nonetheless, even if individual guilt is not established, it is important to acknowledge what happened. And to deplore it.

But my final point is this. Everybody should calm down. The Police Inquiry is not concluded and, even when it is, in a matter of this nature, any final decision is highly unlikely to be taken by the Police but rather by the Crown Office.

All of that will take time, most likely several months. And (as I have made clear above nothing should be read into this "and") if there is a prosecution it is highly unlikely matters will be concluded in this calendar year. So let's respect the presumption of innocence and the right to a fair trial. These are both fundamental to all of our civil liberties. Not just Alex Salmond's.

Tuesday 1 January 2019


Happy New Year.

I have had a pretty typical Christmas. Ate lot of food, drank a lot of wine, watched a lot of telly, read a lot of books. Even had the traditional festive breakdown of the central heating at one point.

But I have also had an anxious Christmas.

For on the 21st, in between juggling last minute court commitments and last minute Christmas presents, I spoke at length to a friend who, before the Tsunami of 2015, had been a very senior Labour MP. I expressed my concern that the split between those who, on the one hand, accepted the result of the 2016 Referendum but wanted the softest of Brexits and those who, on the other, wanted to re-run the referendum in hope of a different result was slowly but steadily leading us to the disaster of a no deal departure. Those who follow my blog will know that this is not a new concern of mine.

I suspected my interlocutor would be in the "People's vote" camp and I hoped he would enlighten me as to what I had missed as to how, without control of the machinery of government, such a contest could possibly be brought about. Or indeed how the People's Voters might gain control of the machinery of Government. He didn't reassure me, for he was equally bemused as to any possible strategy that would deliver a Government based, on the most optimistic of numbers, on a hundred or so Labour MPs prepared to break the whip, allying with fifty or so Tories and sixty or so others. In a parliament of six hundred and fifty. Nor could he explain how normally rational "centrist" politicians thought that they ever might achieve such an outcome. But, with the benefit of far better political contacts than I, he was, if anything, even more fatalistic than me about the prospect of this, or indeed anything else, stopping a hard Brexit. He confessed that he kept encountering people within the "permanent" government who found it inexcusable and indeed almost inconceivable that "the Country" would be allowed to indulge in such a monumental act of self harm but yet that none of them could explain how such a thing might be stopped. For the only deal on the table, Mrs May's deal had, in his opinion, no chance of succeeding against the perverse coalition of interests: "People's Voters"; the ERG; disaster wishing Trotskyists and whipped Labour loyalists all arraigned against it. And the law of the land, already enacted, is that if there was no deal then we would leave on 29th March. Without a deal.

Now, I have said all this before but at the risk of repeating myself, the likes of Amber Rudd can say all they like about there being "no majority in the House of Commons for a hard Brexit" but, with respect, if there is no majority for any specific deal, then , starting from where we are legislatively, then there is, by logical conclusion, a majority in the House of Commons for a hard Brexit. FOR THERE IS ONLY ONE ALTERNATIVE ACTUALLY ON OFFER!!!! (apologies for shouting) and what is perceived to be wrong with that deal is not solvable in a way which somehow magically changes the Parliamentary Arithmetic. Setting aside the diplomatic obstacles to somehow getting a fix on the backstop (and, given that any fix would involve the UK Government having the unilateral right to close the Irish Border at a future time of their choosing, these obstacles are substantial), fixing the backstop still does not deliver the hard core votes of the most extreme ERGers, for they do not wish any deal. Yet, without their votes, the deal can't pass on Tory votes alone. Equally, given it would still be a deal to leave without a clear future direction of travel, it is questionable if it would deliver a hard core of Tory Remainers either. Corbyn positively wants chaos in the hope that people would embrace "socialism" as the only alternative to chaos and no deal certainly delivers chaos. While the Labour whipped loyalists will just do whatever Corbyn wants. Partly out of Party loyalty and partly out of otherwise fear for their own future at the hands of his ultras in their constituencies.

But the problem for the people who hold the key to this, the sensible, pro European, non self serving and hoping of personal survival, majority in the Parliamentary Labour Party, is this. Like the remainer Tories, they don't want to be seen to have voted for Brexit. Even more so in the current internal Party climate. Where to have done so would be portrayed by the Corbynistas as having prevented their wholly illusory hope of a General Election and even more illusory hope that, without any coherent Brexit policy,  this would be a General Election Labour might win. And it is also not lost on them that they face the irony of being caricatured as the handmaidens of Brexit, against a future portrayal that Corbyn, (Corbyn!) had somehow voted against. Not against the deal but against the whole enterprise.

But that is what needs to happen.

But it is not all that needs to happen.

British politics is fractured.

Sometime between February and October this year, I will have been a member of the Labour Party for forty five years. The Party I joined represented the interests of people who had little money and wanted a wanted a fairer share, allied with those of broadly liberal sentiment on social issues. Our principal opponents represented the interests of people who already had money and wanted to keep it in coalition in turn with those more generally resistant to cultural change. That is not however the political divide today. The political divide today however is between those who wish to look forward and those who want to look back. Look back not just to naval bases east of Suez, a Bobby on every corner, people knowing their place in life and the civilised world stopping at Dover. But also look back to British jobs for British workers, with local schools in local towns discharging generation after generation to work in local factories or the local presence of monolithic  nationalised industries.Both of these worlds have gone and no opportunistic political parasites from either extreme of the political divide are, in the end, going to bring them back.

Yet that was how the Brexit Referendum realigned our politics. Bringing about a coalition of different perceived versions the past that created a common objective between Jacob Rees-Mogg and (in truth) Jeremy Corbyn to go, literally, back in time. An objective they continue to share.

But, no matter whether we like it or not on 23rd June 2016 it was "the will of the people" that we leave and I have always had reservations about the consequences of not implementing that "will". Mrs May's deal does that. Having voted to leave, we will have left. But thereafter anything is possible. And, it having been disastrous to leave, why would it not be sensible to rejoin? Nothing in the Withdrawal Agreement prevents that and in truth our current opt-outs, on the Rebate, from Schengen, from the Euro, would surely still be on the table while we remained a net budget contributor.

So that's where I think the argument should go. Take the only deal on offer now but then campaign for the eventual outcome of the trade talks which are to follow to be rejoining. It is difficult to see that ever being something Corbyn personally would endorse but it is certainly something I can conceive becoming Labour Party policy. And if it doesn't? If the current cult of personality gripping my Party proves too hard to overcome? Then perhaps some other Party might be needed to take it forward. A Party that might, if Mrs May ultimately falls to a candidate of the Tory hard right, find it had other willing allies on hand. "Rejoin the Future" has a nice ring to it.