The social care u-turn. What it really means.

About half of people die with an estate worth £100,000 or less. The poorer half. You’d think you could fairly describe as progressive a policy that relieved them – but not the richer half – from all burden of paying for their social care.

In weighing up the attractiveness of the policy you’d add a few other elements to the scales. The changing demographics of our population – more and more will need social care and someone will have to pay: so who? The fact that older people are richer: of the different types of household by wealth mapped by the ONS the second wealthiest was couples both of whom were over 65 with no children. The wealthiest? Couples one of whom was over 65 with no children. The fact the burden would ultimately be born not by people who had worked for that money but by their inheritors who had not. The policy would level out inter-generational inequities.

No, the policy wasn’t perfect. Yes, there will be market failures in products that release equity. Yes, it is odd that the some risks are wholly born by the State and other similar risks it shares with individuals. But no policy is perfect. And, for me at least, these criticisms are relatively minor.

So what does the u-turn – recognising that as yet there’s very little detail over its shape – really signal about our next Government?

That’s what interests me.

The rhetoric of the Conservative Manifesto is, with exceptions, Milibandist. It proceeds from a premise I share – that the present shape of capitalism does not suit society at large or even (over time) capitalism.

Of course, its exceptions are quite something. Its stance on immigration is economically insensible and culturally anathema to me. And to place at the forefront of your campaign a policy you know you will not deliver is hugely damaging to our democracy. The Manifesto stance on Brexit is, of course, a major problem for those who believe that the economic and cultural life of the nation is better served by our continued membership of the EU. And its absence of detail – striking compared with its 2015 predecessor – is consistent with Theresa May’s inclination to coalesce power around her personally rather than to share it with others. As someone who believes strongly in good governance this makes me deeply uncomfortable.

But then (at least if you believe the rhetoric of the Manifesto) the shape of Brexit under Theresa May may not differ so profoundly from that under Jeremy Corbyn. And perhaps we live in a time where only those with autocratic tendencies can get stuff done?

And here we get to the core of the issue.

Can you trust the rhetoric? How do you, as Andrew Rawnsley yesterday asked, respond to a political party that asks the country to trust it with the future by disowning its own past?

And this, for me, is the importance of the u-turn on social care.

Here was a policy that began to address some of the issues around inter-generational fairness, that was progressive, that placed the burden of funding social care on those who would inherit money rather than (as with Labour’s offer) those who strive (in highly paid jobs) and earn.

And yet, faced with pressure from Tebbit and Redwood’s Bow Group, and aided by McDonnell’s unattractive opportunism, Theresa May crumbled. And what, ultimately, the u-turn signals is this.

She may have diagnosed the disease. But she lacks the strength to deliver the medicine to cure it.

Will we negotiate in parallel or in sequence? Does it even matter?

June to October we spent wondering whether we would leave the single market. October to January we knew Brexit meant Brexit but not what Brexit meant. January to March we occupied ourselves preparing sectoral deals we knew could never happen. March we triggered Article 50, and were supposed at last to start negotiating, but Theresa May called the General Election instead.

And now, when we’re back in June again, and the General Election is done, we will have yet another delay.

The summer, David Davis has said, will be taken up not with negotiations but with negotiations over the order in which we negotiate. Article 50 mandates, he says, negotiations of the future relationship between the UK and EU at the same time as negotiations about our exit agreement. This would smooth his political path to a trade deal. But the EU disagrees. It says we must first resolve the question of our exit bill and the rights of EU citizens.

And, perhaps because David Davis has said it, we’re now all obsessing about it. The media is in a flap about it. I’ve been asked whether the point might be litigated. But does it have any value?

Reader, it does not.

Here’s what Article 50(2) (relevantly) says:

the Union shall negotiate and conclude an agreement with that [withdrawing] State, setting out the arrangements for its withdrawal, taking account of the framework for its future relationship with the Union.

And here’s why the point lacks value.

(1) On any view the future relationship takes a backseat to the withdrawal agreement. The Treaty mandates that the withdrawal “agreement” be negotiated. By contrast there is no Treaty requirement for an agreement governing the future relationship.  All the Treaty seems to envisage is that there be a “framework” – something less than an agreement – for a future relationship.

(2) The requirement to take account of the framework is parasitic on the agreement. If there is no agreement then there is no need to take account of the framework. What this seems to me to mean is this: unless and until you have a degree of confidence that there will be an agreement it is pointless to take account of anything in that agreement. And this thinking is perfectly reflected in the EU’s negotiation position. They want a degree of confidence that the stumbling blocks to an agreement – citizens’ rights and settling the tab – will fall away before they move on to discuss the rest of the agreement or the framework.

Those points are points of construction. And they are tolerably clear. But there are also powerful arguments to why, even if the position were less clear, Davis’ argument would still be futile.

(3) Judges only do what judges can do better than those they oversee. One of the things they can do better is read the words of the legislation. But they are not negotiators and will not tell those who are how negotiations should be conducted. This isn’t a philosophical point. It is a principle of law – called justiciability. But what it means is that judges aren’t going to tell the politicians how to handle the Article 50 discussions.

(4) But even if all of this is wrong, and Davis is right, where does it get him? Will he take up six months or more asking the Court of Justice to rule on the order in which the negotiations have to be conducted? Leave aside the irony of Davis seeking to persuade the CJEU that We’ll then be in March 2018 and we still won’t actually have begun to negotiate about either the withdrawal agreement or the framework for our future relationship.

None of this is rocket science. It’s not difficult. So the interesting question is not whether Davis is right. It’s why on earth Davis would be taking up time arguing a point he can’t win?

Why a further delay? Taking us well beyond a year after the vote to leave without even commencing negotiations?

And here we move into the realm of speculation. And we can’t know what the answer is. We can’t know whether it’s because they don’t want to get found out. We can’t know whether they are trying to delay the economic reckoning. Or whether they see time as their ally in embedding a sense of the inevitability of Brexit.

But what we can know is this. This isn’t how you behave if you’re trying to strike an enormously complex deal in a very limited time frame.

 

Brexit and the Sanguinistas

Their approaches take many forms, the Sanguinistas.

“By resisting Brexit you lose the ability to influence its shape.” “Theresa May needs a bigger majority so she can face down her rebels.” “Brexit is a done deal. Make the best of it.”

And I ask: how will I influence its shape by accepting it? What evidence do you have to support that notion? How do I make the best of it?

And they remain silent.

The Conservatives had nine months between the referendum result and triggering Article 50. Did they use those nine months to engage the country in a discussion about the form our departure from the EU should take? They did not. Did they recognise that on the Leave side there were a dozen contradictory positions – to save the NHS, to cut immigration, to select immigrants, to kick the establishment in the teeth, for the principle of more autonomous law making, out of fear of a rush of Turkish immigrants, and many more? They did not. Did they seek national unity in advance of national strife? They did not. Did they want engagement? They did not.

Did they march public expectation to the top of the hill and leave it to others to march down again? Did they use the press to belittle our judiciary? To tar as unpatriotic, or worse, those who sounded notes of caution? Or who sought to establish that the control to be taken back should rest in the hands of Parliament not an unelected Prime Minister acting in the teeth of her Manifesto? Did they rattle their sabers at our European neighbours? Did they threaten to withhold security co-operation, whilst risking our own? Did they cosy up to Trump and Erdogan and Saudi Arabia and the Philippines as they threatened and belittled France and Germany and Italy and Spain? Did they offer to turn the United Kingdom into a tax haven on the doors of Europe? And hold an enormous carbon-emitting bonfire of the regulations that seek to salvage a home for our children?

They did.

And now? Now that the Government has turned the rhetoric dial up to eleven? Now that the Prime Minister has accused the EU of interfering in domestic politics and willing us to fail? Now that she makes the clear choice to put parochial interests before those of the nation? Now, as the gap yawns? Between the imagined reality of a clique of tax dodgers, climate change deniers, profiteers, and fascists and the politics and Government they fund? And the actual reality in the actual world.  As that chasm gapes and widens? Now that a chaotic Brexit that stands to leave hundreds of thousands of Britons living in Europe without healthcare or residency rights? And the same for millions of Europeans here – our colleagues, our neighbours, our friends, our husbands, our lovers? And cause enormous chaos and unrest in relations with our closest and dominant trading partner? With huge consequential disruption for lives and livelihoods? Now that Brexit hoves into view?

Should we work with them now?

Answer for yourself.

But I ask you this, you Sanguinistas. Those who make a living from cutting their political cloth to suit the day’s prevailing fashion. Whatever the price. What would cause you to say, “I have changed my mind. Although I hope for success, the risks of Brexit outweigh the prospects of delivering it? These are not people who I can influence, or influence for the better? The interests of my country are not served by this cause?”

What would it take for you to recant? What evidence would persuade you? Is there any?

Spring the Party

It would be wrong to say I’ve been quiet these last days. It would be fair to say I’ve been less noisy. Alongside the Dublin case, I’ve been working on this: Spring The Party.

I’m very lucky. I have some great friends in the music and creative industries. Serious people. “It’s a wonderful idea,” they said, “but completely impossible to execute in the available time.”

I have at last, with great reluctance, accepted they were right. And I will not be standing. It was impossible to stage the festival in the available timescale and without it there was no reason to stand.  I publish the short paper only in the hope there might be something to take forward after the General Election.

But here it is. If you’re one of those people who look at your country through the windscreen rather than the rear view mirror I hope it might spark some thinking about where we go now. Might there be something to take forward after the General Election?

Please do add your comments. Is there anything we might take forward?

[The above section edited for additional clarity. The Spring the Party paper remains unchanged].

***

Spring The Party
A new start. A brighter future.

Spring The Party is… A party to celebrate who we are. The most unconventional election campaign in political history. And the launch of a new political Party.

A party to celebrate who we are

The mood for progressives is sour. The election will feel unending. The result, inevitable. The outcome, depressing. And the alternatives, uninspiring.

But there is a profound yearning for an alternative, for optimism, and hope.

So we throw a party. A joyous, optimistic thing. Not political. Celebrating unity. 28 days long, each day ‘hosted’ (food, drink costume) by one of the member states. We have bands, and comedians, and writers, and thinkers, and artists, and designers.

And to deliver focus, and urgency, and to frame the contrast with the nation at large, and to make the party a national event, we stand a candidate (Jo Maugham QC) in Maidenhead against Theresa May. Jo has a good national media profile as a campaigner against tax avoidance and on Brexit.

And the national media will be monotone – and desperate for colour. And this, we will provide.

The most unconventional election campaign in our political history

Theresa May has an enormous majority. And is a relatively popular local MP. Nationally she is divisive. And Maidenhead voted overwhelmingly to Remain.

Labour is non-existent in the seat. And it is not being targeted by the LibDems. For an independent, without a local infrastructure, the seat is in practice unwinnable.

But.

There are local pro-Remain groups. The seat has great symbolic value. And – most importantly – if we can inspire people with our celebration they will come again. They will come early, tomorrow. And knock on residents’ doors, and smile, and talk.

The launch of a new political party

The celebration will lay the foundations for a new political party. The strength of those foundations are our metric of success. We will collect members. We will build a brand. And we will raise funding.

Spring. A new start. A brighter future.

Spring is a party of the radical centre. Solutions for the world today and tomorrow. Not yesterday.

Honest: We will restore trust in our politics. We will not wheedle and lie to the electorate. We will tell people how it is and how we will fix it.

Fair: All must have the chance to prosper – working and middle class, men and women, black and white, gay, straight, able and disabled.

Progressive: For too long our politicians have kicked the can down the road. On the environment, on the NHS, on housing, on social care, on industry, on jobs. We will confront these problems, not ignore them. And we will solve the problems not their political cost.

And we already have policies to deliver these values.

And there is opportunity.

Like Sherlock Holmes and Moriarty, Labour’s left and moderates are bent on one another’s destruction. No one knows what the Lib Dems are for – other than the Lib Dems. And we vote for the Tories reluctantly, lacking an alternative.

It hardly needs saying that it is difficult for a new political party to succeed. But there are many ways to gain and wield political power. And the political landscape after the general election will prove the demand.

How does the story unfold?

Step One: Jolyon announces to The Maidenhead Advertiser that he’s standing. It filters out to the National Press. The website goes up, with a short biog, a teaser, a ‘register’ button and a ‘donate’ button.

Step Two: We announce the festival and some acts.

Step Three: We begin to release policies.

What next

There is a lot to do. But. If you build it, they will come.

 

Can we unilaterally revoke Article 50? An answer to concerns.

Now that a notification under Article 50 has been served the focus has moved to whether that notification might be revoked. It’s clear it can be revoked with the unanimous agreement of the remaining 27 member states. The real question concerns unilateral revocability: could the UK remain in the EU just because it changes its mind?

This is ultimately a question of law – a question the so-called Dublin case seeks a reference on. More news on that tomorrow for members of the Good Law Project and those who helped fund the case.

What I want to touch on here is a narrow point but one that is a matter of interest to a number of national governments – Italy, the Netherlands, Germany and elsewhere.

And the point is this, if the UK could unilaterally revoke, would that hand power to the UK in negotiations? And, in particular, would it enable the UK to extend the two year time limit in Article 50(3)?

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If you read Article 50(3) in isolation you can immediately see the concern. How, those Governments might ask, could this two year limit be policed if the departing state could simply revoke at the end of the period and re-notify?

But here’s the thing. The law does not exist as some abstract concept in isolation. It operates in the real world. And if you consider how Article 50 might operate in the real world the concern evaporates.

A decision to notify (or, indeed, a decision to revoke that notification) must be a real decision made in the real world. Indeed, this is also what, it seems to me, Article 50(1) is driving at when it talks of a decision being made in accordance with its “constitutional requirements.”

Capture

And whether a decision to leave is a real decision made in accordance with the leaver’s constitutional requirements is a question which is easily answered. You look to the facts. In the UK we had a referendum. And it was clearly understood by both sides that if that referendum delivered a ‘leave’ verdict the UK would leave. That decision to leave is a real decision.

What about a decision to revoke?

Here, again, the concern expressed in Italy, the Netherlands, Germany (and no doubt elsewhere) that a revocation might be used as a ruse to extend the negotiating period does not survive real world scrutiny. A revocation would be a real revocation if it was taken in accordance with our constitutional requirements. If the United Kingdom decided that it wanted to revoke – most likely (as I have argued elsewhere) through the mechanic of a referendum on the Final Deal or on whether to Leave with no deal – then it would be plain to the remaining 27 member states that it was a real decision to revoke. And not a pretence to extend the United Kingdom’s negotiating period.

Those member states committed to the success of the European Union will, quite properly, be concerned to preserve the integrity of the Union going forward. The project is too important to be put at risk of gaming by parochial interests.

However, equally, there is no need for those member states – which will not want to see the EU weakened by the United Kingdom’s departure – to erect an unhelpful and on analysis unnecessary barrier to the genuinely expressed and real desire of the people of the United Kingdom to Remain.

I My speech to the March for Europe

Here we are.

I’m proud to be with you. And I’m proud to have walked with you. And I’m proud to stand with you. And I’m proud to talk to you.

Because when we work together, when we share our wealth, we all prosper. When we live as a community, all our lives are better. When we stand together we are all protected.

Sixty years ago today our community was created. Sixteen years later we joined it.

And it isn’t perfect. Francis does spend all the parish funds on his allotment. Jean Claude is very bossy. And they do come stay a lot.

But we’re not perfect either. We’re always wanting special rules, just for us. And it bugs our neighbours. But we rub along. And we prosper.

Together we are stronger. We make our garden grow.

Next week, we’ll tell everyone we’re leaving. We’re going to live on our own. All the faults are theirs. We’ll do better by ourselves. That nice Mr Trump, he’ll look after us.

But we haven’t left yet.

Next week will also see the next step in our case to establish that Article 50 is just the beginning of a journey. We have new additions to a very powerful legal team. We will file our written case. We will seek a hearing date in June. Ireland has said it wants to discuss the way forward.

The Claimants – me along with three very brave politicians from the Green Party who came forward when no one else would – are bringing this action to give the people of this country a choice. A choice they must have. A democratic choice. To remain if they want to remain.

I can’t tell you what answer the courts will give. But what I believe is that pushing the Article 50 button is like starting a journey. If we want to turn around, we can turn around.

Will we turn around? No one knows. No one knows what the future holds.

We voted to leave in a very different world. No President who thought NATO obsolete. No one threatening to tear up trade rules. And we did not know what Brexit meant for the country. And we still don’t know now.

I’m not in the crystal ball business. I don’t know what the future holds. I don’t know what will happen. But I will say this: no one else does either. Anyone who tells you they know the popular mood will remain the same is lying to you. Because they do not know. Because they cannot know. Because the only certainty you can rely on is change itself.

But I’ll tell you this.

What will make Brexit happens is if you give up. If you give up now. Now, at their last moment of control. The last moment before real life walks in on their fantasy.

And takes their cake away.

It’s the hope that kills you, they say. They say that but they’re wrong. The hope will save you. It will save you. And there is hope. There is real hope. Don’t give up.

Fight for your country. Fight for our children. Fight for our future.

Thank you.

Postscript: you can watch a recording of the speech here https://youtu.be/Q4ehBWt-bpY

Deal or no deal. The legal dynamics of Remaining.

How, after Article 50 is triggered, will the law shape and constrain our future inside and outside the EU?

To answer that question let me make some assumptions.

First, assume that Theresa May triggers Article 50 on 29 March 2017. And, second, assume that we can unilaterally revoke Article 50. (The Dublin case is progressing. Slowly but well. The Good Law Project will publish an update next week here. Please sign up to our mailing list).

What happens next? Is there a legal path to Remaining? How will this shape and be shaped by the politics?

There are three main scenarios going forward. They involve a delicate and complex interplay of EU and UK law. I’ll set them out and then – once I’ve run through the analysis – address what seem to me to be the main points of interest.

(1) We conclude an agreement with the EU which Parliament approves. We then leave the EU on the date – it may be less or it may be more than two years from 29 March 2017 – set out in that agreement. The precise date of our departure depends on what the agreement provides: Article 50(3) says that the Treaties cease to apply to us “from the date of entry into force of the withdrawal agreement.”

(2) We don’t conclude a deal with the EU. The key fact to bear in mind is this: as a matter of EU law we remain in the EU until 29 March 2019 and we then we leave. But as a matter of UK law, whether we leave before 29 March 2019 depends upon the status of the European Communities Act 1972 (the “ECA”).

Theresa May will ask Parliament (in her so-called Great Repeal Bill) to give her power to repeal the ECA at a moment of her choosing. If you assume Parliament has not given her that power then it would be for Parliament to choose – in response to talks with the EU breaking down – whether to repeal the ECA or to take some other action. It is difficult (for me) to imagine that Parliament might ask the PM to recommence negotiations. But it could very well put back to the electorate the choice whether to leave the EU without a deal or to Remain. And if a Referendum produced a Remain result before 29 March 2019 we would Remain in the EU as a matter of both UK and EU law.

If, on the other hand, Parliament had given her that power then you would expect Theresa May to repeal the Act when talks with the EU break down. That would have the consequence that we would be out of the EU as a matter of UK law. But, until 29 March 2019, we would still be in the EU as a matter of EU law. Parliament could still in theory – I will return to consider the practice below – call a referendum on whether to leave the EU or to Remain. And if that Referendum produced a Remain result before 29 March 2019 Parliament could re-enact the ECA and we would Remain in the EU as a matter of both UK and EU law.

(A small aside. I don’t understand why Parliament should prospectively repeal the ECA. To do so is unnecessarily to abrogate a power that properly belongs to Parliament. But perhaps in the final analysis it doesn’t matter hugely).

(3) We conclude a deal with the EU and Parliament doesn’t approve that deal. This scenario may be less likely than (1) or (2) but its effects are substantially identical to scenario (2). (It is possible that our membership of the EU would, as a matter of EU law, expire on the date prescribed by the rejected agreement (see Article 50(3)). But I think the better view is that the withdrawal agreement would never “enter into force”.) So, until 29 March 2019, Parliament could choose to Remain.

So a few points emerge from this analysis and generally.

(i) Parliament still has a lot of power. Whatever the Prime Minister does, Parliament can still decide to Remain in the EU.

(ii) opinions differ but my own view is that party politics is not the insuperable barrier to Remaining that many think. This is not the place for a lengthy analysis of the point but I proceed from the premise that Labour MPs are basically Remain and there is a substantial body of Conservative MPs who are basically pragmatic. This, of course, is not to deny that the political situation could be better for those like me who still think the country’s interests are better served by us Remaining.

(iii) if you believe that leaving the EU is a bad thing, and that the public will come to appreciate this, then scenario (2) is rather striking. If negotiations with the EU deteriorate and break down we will see how the economy reacts. And we will also see the – hitherto under-examined – other non-financial consequences: for Scotland, for Northern Ireland, for the right of UK citizens living in the EU and EU citizens living here to reside and access healthcare, for air transportation and the NHS and so on. And we will see how the public reacts to this. Scenario (2) could very well confront the electorate with a stark choice between the having and the eating of cake. And at a point in time when Parliament can still react to the electorate’s choice.

This is a reality which could shape both the EU’s and our own conduct of negotiations.

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