Judgment day

The Court of Justice of the EU yesterday put a number of questions to the Government’s advocate about the timing of the meaningful vote. (You can read my largely verbatim albeit incomplete note of the hearing here). Obviously the CJEU wanted to ensure that the Opinion – a non-binding view from a nominated judge on the Court – and subsequent binding Judgment would come early enough still to be relevant to those decisions.

Lord Keen, for the Government, explained that the so-called meaningful vote was expected on 11 December 2018 and if it passed a number of legislative steps would follow.

For what it’s worth, if forced to guess, I would anticipate an Opinion early next week and a Judgment after the meaningful vote.

But does any of this really matter?

It seems vanishingly unlikely that Theresa May’s deal will pass Parliament at the first time of asking. Even The Sun says she will lose by around 200 votes. Indeed, the truth is that this outcome has been inevitable ever since pro-Brexit campaigners welded two groups of voters (‘nativists’ who sought the protection of a more closed economy and ‘buccaneers’ who perceived opportunities in a more open one) with contradictory objectives into a false coalition for Leave. The only surprise is that it has taken two and a half years for this contradiction to be exposed,

And a number of consequences will follow from her defeat. But, in terms of timing, the most important is that there will be plenty of time for MPs to consider and digest the consequences of an Opinion and Judgment that are likely to confirm what five QCs instructed by the Government have already said, in the Government’s application for permission to the Supreme Court (at paragraph 38), namely, that Parliament can by a majority can direct the Government to withdraw the Article 50 notice.

Indeed, for those of us who continue to believe that the country’s best interests are served by Remaining in the EU, it may well be helpful if the Judgment comes after the so-called meaningful vote. It will only be then, when the country is looking down the barrel, after a crushing rejection of a deal that took years to negotiate, that MPs are likely to begin to focus on alternatives.

It is only then that they will engage, seriously, with revocation. It will only then become apparent to them that this is a simple mechanic that they control; that delivers a stronger economy than any alternative; restores the United Kingdom to its rightful place as a rule maker rather than a rule taker; has greater democratic legitimacy than either a buccaneer or nativist’s vision of our future; and, crucially, avoids the chaos of ‘no deal’.

The DUP, its dodgy donor, and how the Electoral Commission let them both off the hook.

This should shock you – but it won’t.

  • The DUP’s Treasurer, Gregory Campbell, gave an on-the-record interview to SourceMaterial. That interview was recorded and, assuming he told the truth, the shadowy Constitutional Research Council, which gave £435,000 to the DUP, looks to have broken the law
  • If Mr Campbell was telling the truth, both he and the DUP are also likely to have broken the law.
  • You might hope but you can no longer expect that the Electoral Commission would conduct a proper investigation into these facts but – as will be seen –  its investigation was at best cursory.
  • And it may well have misled the public in its statements about those investigations.

Four striking assertions. Made all the more striking when you bear in mind that, according to the BBC, £435,000 is the “biggest known political donation in history for a Northern Ireland party.”  Below I try and stand them up, mostly by reference to documents that I am able to publish. But occasionally by reference to other materials I can vouch for.

But first let me explain that we are concerned with two sets of rules. The first is about transparency – the general rule that we should know who is buying democratic influence. This is the rule that I believe the CRC infringes against. The second is about who is allowed to buy democratic influence – and this is the rule that I believe the DUP infringes against.

Has the Constitutional Research Council broken the law?

The DUP, a Northern Irish political party, received a donation of £435,000 from the CRC and went on to spend £282,000 of that sum advertising in London’s Metro, outside of Northern Ireland.

Following the Good Law Project’s success on Friday in its High Court action against the Electoral Commission we know that if a donor (here the CRC) controls the use to which a donee (here the DUP) spends money that donor will incur referendum expenses which will go towards its spending limit.

Here is how the High Court put the matter (para 81):

“If… money (i) is paid directly by the donor (by agreement with the donee) to discharge a liability of the donee to pay for goods or services falling within Part I of Schedule 13 of PPERA or (ii) is paid pursuant to an agreement to pay or reimburse the donee for the cost of such goods or services purchased by the donee, or (iii) is given on terms (binding on the donee) that it is to be used to purchase or pay for particular qualifying goods or services, then the expenses incurred in making such a “specific” donation are appropriately regarded as incurred “in respect of” a matter falling within Part I of Schedule 13 of PPERA and hence as “referendum expenses”.”

This is little more than common sense, really, because otherwise you could avoid the transparency limits by channeling your expenditure through someone else.

The Political Parties, Elections and Referendums Act 2000 says that you cannot incur referendum expenses of more than £10,000 unless you are a permitted participant. To be a permitted participant you have to register. The CRC did not register.

So the missing link is whether the CRC controlled the use to which the DUP put the donation. If it did the CRC will have broken the law. Did it? The answer to that question seems abundantly clear.

First, why would the DUP want to spend £282,000 on a Metro advertisement in London. Why would a Northern Ireland political party do that? Instead of spending it on its own concerns in Northern Ireland? Would the DUP really have spent that amount of money on an advertisement in England had it not been obliged to do so? For scale, £282,000 is more than twice the DUP’s declared party level spending in the last three general elections combined.

Second, the BBC Spotlight programme asserts that Richard Cook, the Scottish Chair of the CRC and not involved the DUP, booked the advertisement on which the DUP claims to have spent £282,000.  I understand it was not contradicted either by the DUP or Richard Cook. This is strongly supportive of the notion that the CRC controlled the use to which the ‘donation’ was put.

And, third, in an on-the-record recording of the SourceMaterial interview, the DUP’s Treasurer himself says that the CRC controlled the use.

“For example the Metro money, it’s very straight forward, we got an amount of money to use as an advert in the referendum campaign, we used it to the purpose it was given and accounted for it after we had spent it. Nothing hidden about that.  The advert had said who had put the advert on, i.e. the Democratic Unionist party and we declared it within the time scale we were required to do so afterwards. So there is nothing secretive about it.”

If the DUP’s Treasurer was telling the truth it is hard to escape the conclusion that the CRC has broken the law by failing to register as a permitted participant.

There are a number of reasons why this matters.

By enacting the legislation Parliament was saying it is important that we know who is buying influence in our democracy. The sum of money spent on the Metro ad was a very substantial one. And the sum was spent in a very unusual way – channeling expenditure on an advertisement in England by an organisation with links to the Scottish Conservative Party through a Northern Ireland political party – presumably to take advantage of strict secrecy laws that enable a donor to a Northern Ireland party to escape public scrutiny.

It is impossible to imagine that this was what Parliament intended the law should permit – that donations connected with spending in England should escape public scrutiny. If the CRC had placed the Metro ad directly it would have had to register as a participant and disclose its donors. Should it really be able to escape that obligation by funneling it through the DUP? In the circumstances, there really ought to be very close scrutiny of whether an apparent attempt to squeeze through a technical loophole to achieve a counter-purposive result – a ruse – succeeded. As I have set out, I think it reasonably clear that it did not.

And has the DUP broken the law? 

Broadly speaking, section 54 of the Act imposes a requirement on those receiving donations to check that the donor is a “permissible” donor. And section 56 of that Act makes it a criminal offence to keep a donation where you do not know whether the donor is a permissible donor. Here is how the Electoral Commission characterised the DUP’s duty – in a letter to the DUP.

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Did the DUP carry out that duty?

Here is what the DUP’s Treasurer, Gregory Campbell, told SourceMaterial in an on-the-record interview (I hold a copy of the recording).

“Q. The organisation was the constitutional research council… so who are they, apart from your man that was in the papers
“A Presumably they are right of centre pro leave the EU [my emphasis].”

He is asked:

“Q. Had you heard of the CRC before they came.
“A. I haven’t heard of it before and I haven’t heard of it since. It doesn’t make any difference. The important people are the Electoral Commission… And who are the people whose duty it is to monitor and regulate these things? The Electoral Commission. It’s their verdict that counts. Not what you think, or what I think, or what somebody else thinks [my emphasis].”

And he says (48m)

“How would I or anybody in our party be expected to know who the individuals are that are involved in the organisation? Why would it be my business to find out?

And he says (45m)

“If the Electoral Commission had come back said there is something I’ve missed here, I would say ‘Right guys, where did this money come from?’ or ‘Who gave it to you?’.”

But section 56 of the Act imposes a mandatory obligation on the DUP to verify the identity of the donor and check whether it is a permissible donor. And, looking at the comments made by the DUP’s Treasurer, and taking them to be the truth, it is hard to see how that obligation was carried out.

So why does this matter?

Parliament has seen fit to legislate to prevent foreign interference in our democracy.  It does this by placing responsibilities on donees to check that donations they receive are from permissible sources – and those responsibilities are backed by the criminal law. This was a very substantial donation – apparently the largest in Northern Irish history. And, unless its Treasurer was lying, the DUP seems completely to have ignored the responsibilities placed on it by Parliament.

What investigation did the Electoral Commission carry out into the DUP’s acceptance of the donation?

Very shortly after the broadcast of the BBC Spotlight programme that revealed that Richard Cook had booked the Metro ad the Electoral Commission wrote to the BBC asking it to provide all information relevant to breaches of the Act.

On 17 July 2018 the BBC replied and, I understand, set out amongst other materials the exchanges with the DUP’s Treasurer contained above.  I understand that the Electoral Commission did not ask the BBC – or SourceMaterial – for a copy of the recording on which that segment of the programme was based.

And, from the correspondence, it looks as though the Electoral Commission had decided not to investigate whether the DUP had broken the law even before it received the BBC’s response. We know from the Electoral Commission’s reply to the BBC that the BBC responded on 17 July 2018.  But it was several weeks earlier, on 27 June 2018 the day after the Spotlight was broadcast, that the Electoral Commission wrote to the DUP. And it didn’t ask the DUP about the recording – or about what due diligence the DUP had undertaken. It didn’t even pretend to consider opening an investigation. It simply said that the comments were a “sufficient cause of concern for me to write to remind you or you (sic.) legal obligations.”

If you read the final paragraph of that letter it is abundantly clear that the letter was written to aid the DUP’s understanding. The Electoral Commission was not contemplating an enquiry into whether, as the DUP’s Treasurer had suggested, the Party had ignored its obligation to do due diligence in relation to the largest known political donation in Northern Irish history.

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And the Electoral received this unapologetic response from the DUP which asserted that what was broadcast was used “out of context” and “in an attempt to convey an incorrect impression” and went on to say:

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But, again, the Electoral Commission did not ask the BBC or SourceMaterial for a copy of the interview.

The Electoral Commission then replied to the BBC on 2 August 2018 saying:

“we reviewed the information you provided… Our conclusion is that we do not have grounds to open an investigation into the allegations about breaches of electoral law in the BBC NI Spotlight Programme.”

However, the sequence of events set out above suggests that the Electoral Commission did not review the information the BBC provided before concluded not to open an investigation. The evidence is that it never had any intention of considering an investigation, irrespective of what evidence the BBC provided. Because the Electoral Commission wrote to the DUP ‘reminding it of its obligations’ (and doing no more) before it was provided with the evidence it had requested from the BBC.

I do not find it easy to understand how the matters set out above under “Has the DUP broken the law?” do not give rise to grounds to open an investigation. But I find it very difficult indeed to understand how the Electoral Commission could apparently properly conclude, before reviewing the evidence it had requested, that an investigation into the DUP should not be opened.

Has the Electoral Commission made misleading statements?

How did the Electoral Commission present the exercise it carried out?

Here is what the Electoral Commission said to Ben Bradshaw MP:

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What about the first of these highlighted sentences. Did the Electoral Commission carry out a “thorough assessment of  the allegations made in the programme”? In relation to the question whether the DUP broke the law the evidence suggests that the Electoral Commission had already decided to take no action before receiving the evidence. As to whether the Electoral Commission “considered whether there were other sources we could locate to evidence the allegations made in it”,  I have been told in writing by Source Material and the BBC that the Electoral Commission did not request the recording of the interview with the DUP’s Treasurer.  And there is no suggestion that the Electoral Commission asked Metro’s publisher for a copy of the purchase order for the advertisement to see who booked the Metro ad or where the money came from to pay for it or whether the booking pre- or post-dated the date of the donation.

The Electoral Commission also made a similar statement to the public via this Press Release:

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It is fair to say that the principal focus of this statement is on whether Vote Leave and the DUP were “working together”. But that issue was only one of the “allegations made in [Spotlight]”. Spotlight also asked the question set out above: “Did the DUP do enough homework into the financial background of their biggest donor?” (at 1.40 and then at 22.50) and broadcast certain of the extracts of the interview set out above under the heading above. And I understand that the Electoral Commission’s initial enquiry of the BBC was not confined to “working together” but asked for all information relevant to all PPERA offences. But, as I explain earlier, the Electoral Commission appears to have made the decision not to investigate the DUP before receiving any of the BBC’s evidence.

In the circumstances, it is hard to see how the Electoral Commission can properly suggest (see third sentence of the Press Release) that the decision not to investigate the DUP followed the BBC’s response.

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These are very serious matters concerning what our national broadcaster has described as the “biggest known political donation in history for a Northern Ireland party”; they concern a Political party in a de facto Coalition Government; on their face they disclose law breaking and possible criminality; they appear (once again) to have been whitewashed by the Electoral Commission which appears to have closed its eyes to the evidence – and made statements to MPs and the public which are apt if not designed to mislead.

The Good Law Project – which I founded – is crowdfunding to take these matters to court again. Please, if you value our democracy, donate here.

Electoral Commission Judicial Review – Resources for Journalists

High Court Decision Decision at paragraphs 94-95:

“For the reasons given, we conclude that the Electoral Commission has misinterpreted the definition of ‘referendum expenses’ in section 111(2) of PPERA. The source of its error is a mistaken assumption that an individual or body which makes a donation to a permitted participant cannot thereby incur referendum expenses. As a result of this error, the Electoral Commission has interpreted the definition in a way that is inconsistent with both the language and the purpose of the legislation.

“The email communications which we summarised at paras 12-20 above show that Vote Leave made each of the AIQ Payments (totallying £620,000) at the request of Mr Grimes for the agreed purpose of paying for advertising which Mr Grimes ordered from AIQ. We see no reason to doubt that the payments were, as they were said to be, donations made by Vote Leave to Mr Grimes to meet referendum expenses which he incurred by purchasing advertising services from AIQ. But it is also clear that, on the proper interpretation of the statutory provisions as we have analysed them, Vote Leave “incurred expenses” by making the payments, that those expenses were incurred “in respect of” advertising (one of the matters listed in Part 1 of Schedule 13 of PPERA) and that the expenses were incurred “for referendum purposes” wirthin the meaning of section 111(3) of PPERA. They were therefore “referendum expenses” as defined in section 111(2) of PPERA irrespective of whether they were also “common plan expenses” within the meaning of para 22 of Schedule 1 of EURA, as the Electoral Commission has now found.”

So the Electoral Commission – the body charged by Parliament with ensuring the Referendum was properly managed – actually misunderstood what its duties were.

But what does this mean in practice?

(1) Dominic Cummings said they received “extremely surprising” advice from the Electoral Commission that they could donate money.

Deleted tweets from Dominic Cummings: Dominic CUmmings

(2) You can see the advice relied upon by Vote Leave given by Kevin Molloy of Electoral Commission on 20 May 2016: see Matthew Elliot’s witness statement at paragraph 4 and Kevin’s email exhibited thereto (see paragraph 2 of his email). (Note the words in paragraph 2 “without having a co-ordinated plan or agreement”).

(3) Following the receipt of that advice Vote Leave donated £625,315.18 to Darren Grimes (link to Electoral Commission database) and £100,000 to Veterans for Britain (link to Electoral Commission database).

(4) But there is no suggestion anywhere that the Electoral Commission gave that unlawful advice to Stronger In. And Will Straw – its Director – has confirmed that had it known it would certainly have made donations.

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(5) Stronger In (along with Vote Leave) was also bumping up against its spending caps.

Aggregate declared spending of Vote Leave: £6,742,466 (Electoral Commission database link).

Aggregate declared spending of Stronger In: £6,769,800 (Electoral Commission database link).

(6) So the Electoral Commission, charged by Parliament with ensuring the referendum was fair, unlawfully tilted the playing field in favour of Vote Leave.

 

Quote from Jo Maugham QC: Director of the Good Law Project

“What is now clear is that the Electoral Commission unlawfully tilted the playing field in the Referendum. It was won on points by a crooked fighter aided and abetted by a hapless umpire.

“The Good Law Project is grateful to its awesome legal team and to those who backed the litigation.”

Other Key Resources

Witness Statement of Matthew Elliott in the Judicial Review: WS

Spending by Vote Leave Limited, Darren Grimes, Veterans for Britain and the DUP with Aggregate IQ (Electoral Commission database link).

Skeleton arguments and formal pleadings are collated here.

Other formal documents can be found here.

Lawyers shouldn’t be robbing the vulnerable of their rights

The law touches all aspects of our everyday lives. But rarely so crucially as in the key relationships we have with others – with the landlord we pay for shelter, the employer we rely on for our income, the grocer from whom we buy food.

To them the law says, “you have freedom to contract – but only so far.” For you work you shall be paid a minimum wage. Your landlord cannot turf you out of your home on a whim. You will be protected from food that is not safe to eat.

But it’s never that simple of course. Legal protections created in theory are often found wanting in practice. What use is a right unless we know it exists? How can we assert it when confronted with a powerful and obdurate counterparty? Is the law strong enough to cause the counterparty to care whether he breaks it?

Sitting on my desk is a contract between a major passenger transportation firm – I will not name it – and the drivers it uses. It imposes an obligation on drivers to indemnify the firm against the obligation to pay minimum wage or national insurance contributions.

Think about that for a second. The obligation to pay minimum wage is the firm’s. So too the obligation to pay employer’s NICs. The law is clear these obligations cannot be transferred. But still the contract pretends that, if the driver asserts the protections Parliament has given to him, the cost will fall on him. Along with the firm’s legal costs of resisting the assertion. And of meeting and defending any action brought by the Government. A failure to pay minimum wage can carry criminal sanction – and the contract also puts the cost of defending that prosecution on the driver.

And clauses enacting a pretence are not uncommon. Assured shorthold tenancies – the most common type of tenancy agreement for those obliged to rent from private sector landlords – frequently pretend the landlord has a power to terminate a lease which ignores the protections given to tenants by the Housing Act 1988.

When drafting contracts for the powerful which regulate relationships with ‘normal’ people – in leases, in consumer contracts and, most often, in contracts with workers – lawyers insert clauses that are not merely unenforceable but which they know to be unenforceable.

Why?

Not because they lawfully protect that lawyer’s clients. The fact they are unenforceable means they offer no legal protection. They are drafted for a different purpose. Their aim is to trick those who do not know the law. They attempt to fool the unsophisticated into believing they do not have the rights Parliament has given them. Their purpose is to undermine the rule of law and to thwart statutory protections.

But solicitors have a professional obligation to “uphold the rule of law and the proper administration of justice” and “to act with integrity”. Barristers similarly have obligations to “act with honesty and integrity” and to “not knowingly or recklessly mislead or attempt to mislead anyone.”

For myself, I do not see how the drafting of an unenforceable clause in a contract with a counterparty who is a regular person can be said to be consistent with these obligations. This practice has gone on for too long – it is time for regulators to remind lawyers of their duties.

[This piece was first published by The Times on 19 July 2018].

Six thoughts on Labour and Brexit: a shadow Minister responds

Paul Blomfield, Shadow DExEU Minister, emailed to a constituent this response to my criticism of Labour policy on Brexit. He has indicated he is happy for it to be made public. I don’t intend to respond to it here. My views remain as expressed. But it is obviously desirable, in a week in which support for Labour amongst those who voted Remain in 2016 has dropped 7% (figures here and here), that Labour does its best to address perceptions it is now the party of Hard Brexit.

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I campaigned tirelessly for a vote to remain in the European Union and was bitterly disappointed by the result. However, for the reasons I outlined on Saturday, I accept the result of the referendum and see my role as preventing an extreme Tory Brexit. In the sense that the referendum was, like all referenda in the UK are, advisory, Mr Maugham is right that Labour made a choice to respect the result. I do not pretend that I think that Brexit is a positive thing for the country, however, I fear that there would be serious detrimental impacts for faith in our democratic institutions if we were simply to ignore the referendum result and I believe we must mitigate the damage as much as possible. I believe that we should remain as closely allied to the EU as possible and made that point in an article for the Yorkshire Post.

As regards his argument that we should challenge it on grounds of validity. I have been following the allegations about Russian interference in the election and have challenged lies about Brexit, both during it and those made by the Government since it. If a breach of electoral law is found to have occurred, the appropriate sanctions should be taken, of which the rerunning of the vote is not one. Any misuse of data is a serious breach that must be investigated and dealt with, but it does not necessarily follow that they affected the referendum result.

I do not accept his rather strained argument that Theresa May wants a softer Brexit and Jeremy Corbyn wants a harder Brexit. Even he goes on beyond his top line to elaborate, saying that he means in comparison to party members’ and MPs’ wishes. It is not right to say that there is ‘no meaningful difference between the outcome being sought by the Conservative and Labour parties on Brexit’. He also says: ‘Both want to trade with the Single Market. Both want to be free to make their own trade policy in a manner that rules out a customs union.’ Firstly, it is not true to say we do not want a customs union. On the contrary, in February Jeremy Corbyn set out our vision of a comprehensive customs union with the EU replicating current arrangements. This is in direct contrast to the Government. I spoke about this recently, which you can read here. Moreover, it is somewhat misleading to suggest that our stance on the Single Market is identical to that of the Government’s. We have made clear we want the closest possible relationship with the Single Market, accepting jurisdiction of the CJEU and seeking continued membership of the agencies and programmes we have built together over forty-five years. Therefore I strongly challenge his sixth point that “Labour has chosen not to push for a softer Brexit.”

He goes on to argue that, in our attempts to secure a meaningful vote for Parliament, we have “consistently refused and refuses to say what it would do with Parliamentary control […] It offers nothing”. As you can see from these speeches on the amendment that my colleagues, Matthew Pennycook, and Shadow Secretary of State, Keir Starmer, have made on it, our position was that, in the event that Parliament rejects the deal on offer, it should be for Parliament to determine the next steps, whatever they may be. I do not think it would be wise for us to commit to a certain path at this stage, when we don’t know what the final deal will look like. We have been clear that we would vote it down if it does not meet our six tests. He guesses that we would seek to force a general election and that may come to pass but, due to the Fixed-Term Parliaments Act, an early election can only take place before 2022 if at least two-thirds of the House votes for one or if a motion of no confidence is passed and an alternative government is not confirmed by the Commons within fourteen days.

I do not follow his argument, “Labour cannot win its battle with its Remainers”. I agree that the party membership has a vital role to play and Conference is the policy-making body of the party. I have taken part in a number of meetings like that on Saturday and I have visited a number of CLPs to discuss our policies with members and want to ensure members’ views influence and shape our policy. That is how we can ensure that members have a “real say, the final say in deciding on the policies of our party”, as Jeremy said.

I hope that I have demonstrated why I disagree with the author’s view that we are pursuing a hard Brexit and that, on the contrary, we are actively opposing a disastrous Tory Brexit and a ‘no deal’ scenario and, if we were in Government, we would be seeking the closest possible relationship with the EU as partners, if no longer as members.

Six thoughts on Labour and Brexit

First, Labour’s decision to ‘respect the result’ of the Referendum is a choice. It has chosen to respect the result because, whatever the reason, it wants to.

It is true that people believed they were voting for a result that would be delivered. And – although a legally binding referendum would likely have had further safeguards – all things being equal my own view is that Labour would have been politically bound to deliver the result of this advisory referendum. But all things are not equal.

Both the official and the unofficial Leave campaigns broke the rules in material ways – they cheated, not to put too fine a point on it. There is powerful evidence of Russian interference in the referendum. Demonstrable and deliberate lies were told by the Leave campaigns. The promises that the Leave campaigns made will not be delivered. I accept that the assessment of the political saliency of these things is a matter of judgement. But it cannot sensibly be argued that it would be impossible for Labour to say ‘the result is not valid; the will of the people was not discovered by this flawed exercise.’

These factors open the door for Labour to say the result lacks validity. Labour has made a choice not to walk through that open door.

Second, Theresa May is pushing for a softer Brexit and Jeremy Corbyn is pushing for a harder Brexit.

For myself, I see no meaningful difference between the outcome being sought by the Conservative and the Labour parties on Brexit. Both want to trade with the Single Market. Both want to be free to make their own trade policy in a manner that rules out a customs union. Both want control over immigration in a way that rules out membership of the Single Market. In the circumstances I think it is reasonable to say that both want a Hard Brexit. But the point I am here making is a different one.

Theresa May’s party has a very large contingent that is prepared to leave without a deal. Her battle is with the Ultras in her party that would deliver that outcome and she seeks a ‘softer’ Brexit than they want. The Labour Party by contrast is dominated – its membership, its voters, its constituencies such as trade unions – by those who want a soft or no Brexit or a vote on the deal (or on whether to leave without a deal). Jeremy Corbyn’s battle is with that dominant faction in his party – and he seeks a harder Brexit than they want. This is (it seems to me) beyond sensible debate.

He is battling for a harder Brexit, she is battling for a softer one.

Third, Labour cannot win its battle with its Remainers.

The debate on social media between those who see a Corbyn government as more important than stopping Brexit (“Pro Corbyns”) and those who see stopping Brexit as more important than a Corbyn government (“Pro Remains”) is a debate the Pro Corbyns cannot win.

Labour is a political party. To win Government for their man, Pro Corbyns needs a broad constituency. As things stand, Pro Remains are a campaigning group. Their immediate goal is to force Labour to change its position on Brexit.

Pro Remains lack sufficient representation in Parliament. Without it they cannot achieve their goal. So their strategy must be to cause the only party who might change its position to do so. And, sadly, the only way to cause Labour to change its position is to ensure the political cost of pursuing its present stance is greater than the political cost of changing it. And if Pro Remains are toxifying Labour’s attachment to its present stance they are winning. They will be forcing Labour to re-evaluate that stance. If Pro Remains are also toxified that does not matter – or does not matter at this stage – because they do not need a broad constituency to achieve their immediate goal.

(In a better world, the Pro Remains strategy would be to ask Labour to look to the interests of the country, or to the need to fund public services, or to protect the jobs of working people, and so. But sadly we are not in that world).

Labour cannot win its battle with its Remainers.

Fourth, by aligning his position against that of Labour’s members, Jeremy Corbyn is dishonest and hypocritical.

Corbyn campaigned and won the leadership on a platform of allowing members to choose Party policy. He said (you can see him saying it here at 31.07)

“One firm commitment I make to people who join our Labour Party is that you have a real say, the final say in deciding on the policies of our party.

“No-one – not me as Leader, not the Shadow Cabinet, not the Parliamentary Labour Party – is going to impose policy or have a veto.”

Yet Labour’s position is not remotely aligned with what the polls say its members want. And Labour is reported to be battling, yet again, to prevent its Brexit policy coming for a vote before Party Conference.

Corbyn’s position is hypocritical and dishonest.

Fifth, Labour offers nothing of substance on Brexit.

It is true that Labour fought hard for Parliament to have a say on whether to approve the Brexit deal. And with the help of Tory rebels it won a vote on that subject in December. And it was only when Tory rebels capitulated last month that it lost a vote that would have strengthened Parliamentary control.

But Labour has consistently refused and refuses to say what it would do with Parliamentary control. It has not said it will vote to withdraw the Article 50 notice if the Brexit deal is unacceptable to Parliament. It has not said it will vote for a referendum if the Brexit deal is unacceptable. It offers nothing.

The best guess – and it can only be a guess – is that if the Government’s deal is voted down Labour would seek to force a general election. But that vote is likely to take place in late January 2019 (see section 13(10)) and there would be no time after the result was known, and after any General Election was called and run, for Brexit to be affected by the outcome. And if this guess is right, it suggests Labour’s fight for a meaningful vote is more about Labour’s narrow interest than about Brexit.

Labour offers nothing of substance on Brexit.

Finally, sixth, Labour has chosen not to push for a softer Brexit.

To be in opposition is to have a minority in Parliament. This does not stop an opposition campaigning or voting for its policies. And sometimes those votes or campaigns succeed.

Brexit is no different. Labour could develop a deliverable alternative to the Tories’ plans. It could negotiate with the EU to ensure that alternative was acceptable. It could then campaign for that alternative in the country and in Parliament. That is what an opposition does: it puts forward policy proposals and seeks to persuade the country and Parliament that those proposals are desirable and deliverable. It hopes to force a u turn on the Government

Labour, in the case of Brexit, has completely absented itself from that process. It has not developed a deliverable alternative. It has not sought to negotiate and agree it with the EU. And it has not sought to persuade the country and Parliament of the value of that alternative.

Labour could have pushed for a softer Brexit. It has chosen not to.

Legatum and Hypocrisy

This may have passed you by. Christopher Chandler, and members of the Legatum group (“Legatum”), he founded, have been seeking to silence his critics.

Here is an apology published by the Guardian:

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That apology was tweeted out by Legatum with this commentary:

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But they didn’t stop there.

Legatum also threatened to sue a small online political site ‘Left Foot Forward’ causing it to issue a retraction. I am also aware that legal proceedings have been threatened against a tiny pro-EU campaigning organisation. And there may well be others.

You should read Left Foot Forward’s retraction. This are matters of real triviality. Is threatening to sue a modestly sized website the behaviour of a group which “champions the freedom of the press”? Or is it the conduct of a group which is perfectly prepared to use its wealth and power to suppress criticism of the man it identifies as its founder?

I ask because, back in December last year, Legatum issued a statement containing a false and ugly smear of me:

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At the time, I stated that that allegation was in error. And I asked Legatum to specify what “dirty tricks” I was guilty of.

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That request was ignored. Was that the behaviour of an organisation which believes that “with freedom comes responsibility”?

When I saw that an apology had been demanded of the Guardian for its treatment of Christopher Chandler I wrote to him. You can see my letter here.

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I referred to Christopher Chandler’s objection, as revealed by the Guardian’s apology, to the accusation of hypocrisy. I referred to Legatum’s false and ugly smear of me. I assumed Mr Chandler would want that smear to be withdrawn. And for an appropriate person at Legatum to apologise for it. And I undertook to keep the apology private. I did not seek damages. I did not seek his or Legatum’s embarrassment. I asked him to behave honourably and decently.

Some days ago I received this response.

You will note it is written on behalf of the “Legatum group of companies” to whom it claims, falsely, that I wrote. Christopher Chandler, who sets great store by his reputation, has simply not bothered to respond.

That letter:

(1) of the “dirty tricks” smear, it claims (absurdly) that it was not directed at me;

(2) it attacks me for the questions that I have raised and the opinions that I have expressed about Legatum’s conduct; and

(3) it accuses me of hypocrisy in relation to my conduct on tax avoidance.

Let me say that I am happy to defend my conduct and I accept it is a legitimate matter for reasonable open public debate. I have addressed my position on tax avoidance here. And I am happy to confirm I took advice from a QC specialising in charity law before expressing the view I did that the Legatum Institute’s conduct was likely on the wrong side of the law.

Legatum, on the other hand, has used its money and the power that comes with it to stifle criticism of Christopher Chandler advanced by media with even modest reach whilst claiming to “champion the freedom of the press”. Christopher Chandler has failed to apologise or acknowledge I am entitled to an apology for a false and ugly smear whilst Legatum trumpets the claim that “with freedom must come responsibility”. Christopher Chandler has objected to suggestions of “hypocrisy over Brexit” but Legatum behaves hypocritically when it comes to press freedom.

Legatum’s record suggests I may face legal threats or worse for writing this. But it and Christopher Chandler are powerful and divisive and we must be free to discuss them and, if they are hypocritical, we must be free to call them out.

That, as Legatum might say, is what “champion[ing] freedom of the press” looks like.