A mandate can be either democratic or irreversible, but it cannot be both – an argument

31st July 2017

Over at the FT the other day I did a post about mandates and sovereignty.  Many people seemed to find the points in it interesting, and so (outside of the paywall) I will set out here in more detail the argument I made there about mandates.

The proposition I advance is in essence:

a mandate can be either democratic or irreversible, but it cannot be both.

The argument in support of this proposition goes as follows:

1.  To say a referendum result provides a mandate for an issue once and for all is to say it is irreversible.

2.  The position in (1) contrasts with mandates from general elections.  Usually in UK politics, the result of a general election does not mandate any MP to vote for anything.  The only real constitutional effect of a mandate from a general elections is that, by convention, any mandated measure cannot be blocked or delayed by the House of Lords (the “Salisbury doctrine”).

(Something is said to be mandated from a general election if it is set out in the manifesto of a party which obtains an overall majority.)

3. Following from (2): (a) opposition MPs can vote against measures in the winning party’s manifesto, (b) no government is obliged to follow its own manifesto (and often does not), and (c) in certain circumstances, a government can abandon and reverse policies where there is a mandate without waiting for a general election.

(A classic illustration of (c) is the poll tax, for which a Conservative government had a detailed mandate from the 1987 general election. Few sensible people, if any, would have argued that the Tories were bound to keep this tax in 1990 because of “democracy” when it came to be seen widely as wrong in principle and unworkable in practice.)

4.  Following from (2) and (3), mandates in UK politics are usually reversible, if they are followed at all.

5.  In any case, anything “mandated” by a general election result will always (and logically) be reversible at another election.

(In the case of (3)(c), there would not even be the wait for a general election.  For example, nobody in 1990 was saying about the poll tax: “let’s wait for the next general election for a mandate for something else”.  The policy was rightly ditched mid-parliament.)

6.  Following from (2), (3), (4) and (5) if a policy is (a) wrong in principle and (b) unworkable in practice then it is difficult to see how any perceived mandate from a general election can override that.

7.  Mandates also can come from referendums. The questions to now ask are: What should be the position with mandates from referendums? Should such mandates have an irreversible quality which a mandate from a general election does not?  And if it has an irreversible quality, would such a mandate still be “democratic”?

8.  In respect of whether such a mandate would be democratic, one can apply the famous tests of Tony Benn.  He suggested five tests for anyone with power: What power have you got? Where did you get it from? In whose interests do you use it? To whom are you accountable? How do we get rid of you?

9.  It is the last one that is problematic about referendum results, and prompts the following questions: How do you reverse a referendum result? Can an electorate at one point in time bind all future electorates in a way that no parliament could ever do?  Why should a majority at point A have more inherent power than an electorate at point B? These questions all point to one plausible answer: to say a referendum result is mandatory for all time and not reversible in any circumstances is to rob future electorates of their power.

(As a side note, no Brexiteer – rightly – seems to believe that the UK was bound for all time by the 1975 referendum result.)

10.  If the position at (9) is valid, then for a referendum mandate to be democratic, it must be capable of being revisited (either to affirm it or reverse it), else it cannot be democratic.  One electorate would have dictated a measure to all future electorates.

11.  If the position at (10) is valid, this is not to suggest a second referendum (see my post here – my view is that any such decision in a parliamentary democracy should be made, well, by parliament).  Instead, if the position at (10) is valid then it means that referendum results (or anything else) should not be given the status of an absolute mandate in a democracy, for to do so would thereafter render that polity as undemocratic.  This is because something will have been done that cannot be undone, whether by voters directly or through parliament.

12.  And so on the basis of the positions above, a mandate – whether by means of a general election or a referendum – can be either democratic or irreversible, but it cannot be both.

**

 

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The Cummings exchange – which news sites credited it, and which did not

4th July 2017

Just as an exercise in how these things work, it is interesting to see how my Twitter exchange with Domininc Cummings was picked up by news sites.

Both the BBC and the Evening Standard sites provided credit for the Twitter exchange.

The Huffington Post embedded the reply tweets but without any further credit.

Disappointingly, both the Independent and the Mirror reported the exchange without providing any credit at all.

That is a poor show.

There is no problem reporting tweets, of course – they are public domain – but to take an exchange which was instigated and followed-through by a commentator without crediting them cannot be right.

For what it is worth, I always go out of my way to credit other media sites (and tweeters and commenters generally) when I can.  News and comment is largely collaborative exercise after all.

UPDATE

Mirror has amended its copy.  3000+ shares later of the piece later, but still appreciated.

FURTHER UPDATE

The Independent has finally updated its story to include credit – 13k+ shares later, but it is the thought…

“In some possible branches of the future leaving will be an error” – an exchange about Brexit with Dominic Cummings

4th July 2017

Yesterday evening, I had a tweet exchange with Dominic Cummings, the architect of the (official) Leave campaign.

His candour and openness was striking.

Many regard him as a controversial and negative figure.  But there is none of the platitudes and evasions of the politicians of both sides on Brexit.  It is worth, therefore, reading what he has to say.

The tweet exchange was prompted by his tweets from June, linking to a blogpost.  (I happened upon these while researching something.)

That was last month.  I wondered if he still held this view.

He must get a lot of queries and I did not assume he would respond.  But it was a sincere question.

(My own view is that (a) Brexit is complex, (b) the UK government is not equal to the task, and (c) the UK government is somehow making it worse for itself.)

He did respond.

He then added.

Brexit was necessary, though obviously not sufficient.

This is an interesting view, and I RTd the conversation above as it seemed worthy of wider discussion.

I then asked him about the referendum vote itself.

(Most Brexiteers will defend the Leave vote absolutely; many Remainers will be as equally disdainful.)

His reply was swift, and commendably frank.

“In some possible branches of the future leaving will be an error.”

In other words: Brexit was not bound to be a success – Brexit could be a mistake.

(Note my question had been about the referendum result, but the second sentence of the replt went to Leave more generally.)

He added:

In the meantime, I had RTd the “Lots!” tweet- again as I thought it would be of wider interest.

He was unimpressed with some of the responses.

I said I thought this response was good.

He responded.

He also made wider this observation about the responses.

*

Postscript.

I disagree with Dominic Cummings on many things to do with Brexit.

A couple of polite questions had elicited some frank, informative and interesting replies. And this dialogue in turn led to wider discussion.

One may dismiss what he has to say (and what he did at the Leave campaign) but it is important to know what his position actually is, and not what it is alleged to be.

But one respondent (ironically, an academic), however, saw this exercise as me being “part of the problem”.

This view is misconceived.

One problem with Brexit has been the partisanship and the heat of the two sides.

The more open and frank we can be the better.

**

 

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Three things about Brexit

2nd July 2017

Since the referendum vote last summer for the United Kingdom to leave the European Union, three things have become apparent.

First, Brexit will be complex, not simple.

Second, the UK government is not (or is not currently) equal to the task of Brexit.

Third, regardless of the difficulties, the UK government is in any case making it worse for itself, to the extent it seems almost that it is self-sabotaging the whole process.

I do not claim any originality for these three insights; I just wanted to jot them down here, in one place.

 

Brexit: Whatever happened to the “row of the summer”?

19th June 2017

On Friday this blog asked whether there had been a UK government u-turn on “sequencing” in the Brexit negotiations, which started today.

Sequencing is (or at least was) important for the UK.

Article 50 envisages two agreements: an exit (or divorce) agreement, dealing with issues related to the departure, and an agreement on future relations, which for the UK essentially means trade.

The UK want(ed) both to be negotiated together, in parallel.

The EU wanted a number of preliminary issues discussed before the parties moved on to discussing future trade relations.

In crude terms, the UK has (had) more leverage over the trade deal the more it was tied to the exit deal.  In the latter, the UK has things the EU wants regarding cash and citizenship.  Once those issues are settled, the weaker the UK’s negotiating position on trade.

So important was sequencing to the UK that two months ago the relevant minister threatened that it would be the “row of the summer“.

On Friday (as set out at Friday’s post) there were reports that this position had changed – that, in effect, there had been a U-turn.

What made these reports plausible was that they were not splashed as exclusives but seem to have been mentioned by diplomatic sources almost without realising the significance.

When asked, the Department for Exiting the European Union provided a non-denial denial, just plausible enough to kill the story with the mainstream media.

It looked like a denial, so it must have been one.

But it was not, if you read it carefully.  And when asked directly, the department side-stepped the question. (All this is set out at Friday’s post.)

*

And so what happened today, on the first formal day of the negotiations?

Michel Barnier , the chief EU negotiator, stated:

In a first step, we will deal with the most pressing issues. We must lift the uncertainty caused by Brexit. We want to make sure that the withdrawal of the UK happens in an orderly manner.

Then, in a second step, we will scope our future relationship.

And this is affirmed by the agreed agenda published on the UK government site.

*

So the UK government has capitulated on day one, on an issue which was to be the “row of the summer”.  it did not even get to midsummer’s day.

But what is the significance?

First, it has shown the futility of the UK boasting and blustering with red lines. This may not be the first one to be crossed.

Second, it shows the stronger negotiating position of the EU, and the benefits of long and detailed preparation.

Third, it may show that the UK (unlike in May) is less able to negotiate the UK’s future trade relationship with the EU, as the the UK government since the election does not have an agreed position.

And fourth, never rely on a government press office, especially DExEU.

But overall: this capitulation should be welcomed.  It was a silly and weak position.  It is better that the UK drop it now, and use the valuable time to get a sensible discussion rather than have a row over the summer.

It was, as some have said on Twitter, the row-back and not the row of the summer.

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Has the UK made a U-Turn over the Brexit timetable?

16th June 2017

Back on 14th May 2017, the Secretary of State for Exiting the European Union David Davis was bullish: the Brexit timetable will be the ‘row of the summer’.

The EU wanted a phased approach, with certain issues dealt with before any trade agreement is discussed.  The latter would only happen once there was sufficient progress on the former.

The EU guidelines setting out this approach are here and they provide:

the first phase of negotiations will aim to:

– provide as much clarity and legal certainty as possible to citizens, businesses, stakeholders and international partners on the immediate effects of the United Kingdom’s withdrawal from the Union;
– settle the disentanglement of the United Kingdom from the Union and from all the rights and obligations the United Kingdom derives from commitments undertaken as Member State.

The European Council will monitor progress closely and determine when sufficient progress has been achieved to allow negotiations to proceed to the next phase.

The rejection by Davis of this approach was to be the ‘row of the summer’.

Earlier today the following was tweeted by a BBC journalist:

This was elaborated on the BBC site:

“…the source told the BBC that it was understood the talks would broadly follow the EU’s preferred sequence, dealing with issues of citizens’ rights and a framework for calculating outstanding financial liabilities before moving on, possibly later in the year, to deal with the UK’s future relationship with the EU.”

If this was correct, the UK government has capitulated on the timetable.  Instead of the ‘row of the summer’ the government’s position had not lasted until midsummer’s day.

By way of background, Article 50(2) includes the following:

“In the light of the guidelines provided by the European Council, the Union shall negotiate and conclude an agreement with that State, setting out the arrangements for its withdrawal, taking account of the framework for its future relationship with the Union.” 

And the Article 50 letter of 29 March 2017 included the following:

“We therefore believe it is necessary to agree the terms of our future partnership alongside those of our withdrawal from the European Union.”

[…]

“Agreeing a high-level approach to the issues arising from our withdrawal will of course be an early priority. But we also propose a bold and ambitious Free Trade Agreement between the United Kingdom and the European Union.” 

I asked the Department for Exiting the European Union for a statement.

The statement given to me (and I understand also to the BBC, see here) said as follows:

A spokesman for the Department for Exiting the European said:

“We have been crystal clear about our approach to these negotiations.

“As we set out in the Article 50 letter, our view is that withdrawal agreement and terms of the future relationship must be agreed alongside each other. We are clear this is what is set out in Article 50.

“We believe that the withdrawal process cannot be concluded without the future relationship also being taken into account.

“As the EU has itself said, ‘nothing is agreed, until everything is agreed’.

“As we also said in our Article 50 letter, ‘agreeing a high-level approach to the issues arising from our withdrawal will of course be an early priority’. But the withdrawal and future are intimately linked.

“In particular, we want to move ahead on securing the rights of EU citizens in the UK and UK citizens living in the EU. We want to end the anxiety facing 4 million citizens.

“That has always been our first aim and that is what we will do. That is why we are pushing ahead with negotiations on Monday.”

(ends)

This seemed rather wordy and did not seem like a straight denial of the BBC claim.  Read carefully, there seemed to me to be wiggle-room.  (As a rule, any statement described as “crystal clear” or similar will tend not to be clear.)

So I asked the Department for a straight response to the statement.

Was what Damian Grammaticas said in the tweet correct or was it incorrect?

The press officer told me that they they would need to get back to me on this, and that they would send an on-the-record answer.

I will publish that answer when it arrives.

*

ADD: POLITICO Europe now sourcing this to two EU diplomats, see here:

The U.K. government has agreed to the EU’s demand to start Brexit negotiations with the divorce settlement before moving on to trade issues, two EU diplomats told POLITICO.

Still no word back from DExEU.

ADD: One hour later

A press officer emails me: “We have nothing further to add to our statement.” 

 

 

 

The real and worrying significance of the Downing Street dinner leaks

2nd May 2017

The real significance of the leaks from the Downing Street dinner between Theresa May and Jean-Claude Juncker is what the detail reveals about the UK’s lack of grasp about the process and issues of Brexit, and about how weak the arguments are which UK ministers are seeking to deploy.

These details are telling, even taking due account of spin and bias.  These details are also such that they cannot have been invented (or even exaggerated) by the leakers.  (On these details see my thread on Twitter here, republished at my FT blog here.)

And so these details are worrying, and should be worrying – regardless of one’s views on Brexit.

In the UK, however, there will be pearl-clutching at the fact of the leaks, and attacks on the leakers.  Such responses are easier, one supposes, than dealing with the troubling detail.

There is one obvious way in which the UK government could avoid leaks about how badly prepared they are and about their poor grasp of the process and details.

But they would prefer official secrecy instead.

And so UK voters will only find out about the strengths and weaknesses of the UK government on Brexit, based on what was said in Downing Street, by EU leaks to a German newspaper (published in full in the print edition and not online).

If Brexit is to be a success then the UK government needs to improve its grasp of process and the issues, and put forward arguments which are realistic.  That the government is evidently not (yet) doing so is the significance of the leaks.

But the messengers, and the message, will be criticised or waved away instead.

**

My book “Brexit What Everyone Needs to Know” is forthcoming from Oxford University Press.

The examples that show May is not “getting on with the job” on Brexit

30th April 2017

The UK prime minister Theresa May often uses the phrase “getting on with the job” in respect of her government’s approach to Brexit.

This in turn is part of her supposed “strong and stable” leadership.

Rhetoric, of course, is one thing.

But there are at least three ways in which May’s government has not got on with the job with Brexit and wasted precious time instead.

*

First, back in July, whilst the EU cracked on with practically preparing for Brexit, May lost crucial time starting two (competing) Whitehall departments from scratch.

(My three-part detailed and source-based series at the FT on the EU’s preparations for Brexit  is here, here, and here.)

The two new departments (of International Trade and for Exiting the European Union) are still not (in April 2017) up to speed.

There are reports of turf wars with each other, and both with the Foreign Office, Treasury and UKREP (the UK in Brussels).

There is even still uncertainty as to who is UK’s counterpart to Michel Barnier. (Is it May, Davis, Robbins, UKREP?)

Back in July, the then Cabinet Office minister Oliver Letwin gave evidence to a commons select committee on early preparations for Brexit.

How we laughed at his talk of fine-grained, multi-dimensional options papers – but at least something was being done straight away.

The former prime minister had refused to allow the civil service to properly prepare for one outcome – “leave” – of a binary referendum.  The UK was always going to be far behind, at least to begin with.

It was critical that the UK civil service caught up as rapidly as possible.

But instead of letting the Cabinet Office and Foreign Office (and UKREP) get on with the job, May wasted limited time and resources – at this crucial early stage – with disruptive re-organisational tinkering in Whitehall.

By Autumn, the EU were already lapping the UK before the UK was properly getting started.

*

Second, there was the Miller litigation.

Instead of putting an Article 50 bill through parliament to put the government’s ability to make the notification on a statutory basis, May insisted that the government fight the case both in the High Court and the Supreme Court.

In the end, the government lost twice and had to put through a bill anyway.

This litigation diverted limited time and expertise in the government (especially in the government legal service) in the early few months.

There was never any good reason to fight this case. The referendum legislation did not make the result binding at law (even if it were binding politically).

The government could have just got on with the job instead of wasting time in the courts.

And, it must be remembered, May was lucky in the Supreme Court – it was possible that the judgment could have meant that there would have to be formal involvement of the devolved powers, thus creating more delay.

As there was always was a majority in parliament for the appropriate legislation, the court case was a needless, expensive and high-risk diversion.

*

The third self-inflicted delay is the most damaging.

On 29 March 2017, May made the Article 50 notification, triggering a two year period for negotiating an exit agreement.

Although this two year period can be extended by unanimity, there is no reason to believe this will happen.  Barnier is on record as saying that he wants to get the deal done in two years.

Every month – indeed every week – is now important.

But May has called a needless general election.

This means that negotiations cannot formally start until June 2017.  May has therefore lost the UK significant time at the start of the negotiation process.

And what makes this particularly unfortunate is that the EU is already well-prepared.

In the UK. however, minister will be electioneering, not preparing; and the “purdah” limits what civil servants can and cannot do.

There could be no worse time for a general election, and its attendant effects on policy and decision making.

*

Again and again, under the cloak of “getting on with job” rhetoric, May has diverted and frittered.

May handicapped the civil service before it could get going; the government legal department before it could get going; and now the Brexit exit agreement talks before they could get going.

All for the reason, it seems, of domestic political consumption.

And this is in addition to other obvious missteps: appointing Johnson and Fox, losing Rogers at UKREP, not being able to carry the Scottish Government (in contrast to Donald Tusk keeping the EU27 united, May can’t even keep the home nations on board), and so on.

May boasted of not showing cards and giving “no running commentary” and then she loudly (and needlessly) shows her cards ruling out membership of the single market and the customs union, and rejecting absolutely any jurisdiction of the European Court of Justice.

To contrive bargaining tokens, her government is now reduced to threatening security and intelligence co-operation, and even to try to block the departure of EU agencies from the UK.

Whatever all this can be called, it is not “strong and stable leadership and “getting on with the job” – even if people who should know better nod-along with such rhetoric.

Getting on with the job is what, in fact, the EU are doing.

By keeping EU27 together in respect of consistent and strict Brexit objectives is what Tusk, Barnier and others are (so far) doing, and this can be fairly called strong and stable leadership.

The UK are instead wasting time, when there is no time to waste.

*

I have no objection to Brexit in principle: this post is not an exercise in remoaning.  The UK can be successful outside the EU.

But if a post-Brexit UK is going to be a success, the current approach of May and her government does not bode well.

**

My book “Brexit What Everyone Needs to Know” is forthcoming from Oxford University Press.

This post is an elaboration of this thread on Twitter.

Godot has turned up – the predication and reality of the Article 50 notification

27th March 2017

This week, unless something unexpected happens, the Article 50 notification will be given to start the formal process of the United Kingdom leaving the European Union.

Last summer, after the referendum result, it seemed unlikely to me that this would happen.  The reasons for this view were:

– the referendum was not legally binding and so a separate and distinct legal and political decision still had to be made;

– the process of Brexit would be unimaginably complex and could not be accomplished within the two year period envisaged by Article 50;

– there were significant problems for Brexit because of Scotland and Northern Ireland;

– very few people with power in Westminster or Whitehall were in favour of Brexit;

– there is a tendency in British politics to put things off – indeed, procrastination is a principle of the British constitution (for example, the 1911 Parliament Act was intended to be a temporary measure and is still there); and

– there was no clear or agreed alternative model for the UK outside the EU.

Each of these reasons remains fair.  Not even the most ardent Brexiteer could object to more than one or two of them.

But the Article 50 notification is still being made.  The reasons set out above, although sound in themselves (in my view) were not enough.

So what happened?

*

There were two things which happened which meant the Article 50 notification is being made this week, despite the reasons set out above.

The first thing is the dull one that it became apparent that various difficult issues could, in principle, be dealt with on a transitional basis (or “adjustment phases” as the government called it).  This would give the government and the EU more time to solve the problems.  The two years would not be an absolute bind.

The fact that such transitional/adjustment arrangements do not yet exist, and may not exist, is beside the point.  There is room for manoeuvre.

The second thing is the more exciting one of politics.

This became plain at the conference speech in Birmingham last October.  What had been vague statements about “early next year” became a concrete commitment to make the notification by next March.

Even the litigation to establish that an Act of Parliament was required did not prevent this political push.

The Act of Parliament was passed by a Conservative majority in the Commons, elected only in 2015 on a manifesto commitment to “safeguard” the UK’s position in the EU.

The Mandate (and it warrants a capital letter) of the referendum result would brook no opposition.  The people had spoken, and so on.

And so the prime minister’s self-imposed deadline of March is to be kept.

*

Being doubtful about this particular Brexit adventure has led to me being dubbed a “Remaniac” and worse.

But this is not the case.

My own views, for what they are worth, are what used to be called “Eurosceptic”.

(I was once research assistant to the anti-EU William Cash MP, alongside my university contemporary Dan Hannan.)

I have never written in favour of the EU; I have opposed every treaty and substantial treaty amendment since Maastricht; and I would have voted against membership had I been able to in 1975.

In essence, I would have preferred the UK not to have joined in the first place.

And a good part of my wariness about the EU is because of the ratchet effect: after 40 or so years, the EU and UK polities were becoming evermore intertwined.

Westminster and (especially) Whitehall were becoming dependent on EU powers and provisions.  Thousands of pieces of secondary legislation were implemented without scrutiny or indeed without any thought.  I do not think membership of the EU has had a positive effect on UK law and policy making.

As a liberal, I was (and am) a fan of the single market and the four freedoms, especially freedom of movement; but also as a liberal, I was unhappy about the lack of transparency and accountability of EU law making.  Brussels for me has never seemed either liberal or democratic.

So as and when the UK ends up outside the EU, I will not be especially unhappy.

My concern is not with the destination but with the journey.  All because you want to get somewhere, that doesn’t mean you will get there.

*

Just after the referendum result, my doubtfulness about the Brexit adventure was expressed in a tweet which went “viral”.

The tweet was a riff on Waiting for Godot.

Well: Godot has now turned up.  And neither Vladimir nor Estragon perhaps know what to do now that Godot has turned up.

*

On a final note, I just want to set my incorrect prediction in the following two contexts.

First, I only held the view that the notification was very unlikely until the October conference speech; by January I held the view it was likely; and by February I saw it as virtually certain.

Second, I expressed the following views on pretty much the same sceptical basis and they all still seem sound:

– the referendum was not legally binding (and the Miller litigation and the Act of Parliament showed this was the case);

– repeal of the Human Rights Act and/or the UK leaving the ECHR is extremely difficult (and this has been abandoned for at least the foreseeable future);

– the UK would go for “hard Brexit” because it would be easier than a “soft Brexit”; and

– that Theresa May’s public statements meant that the UK would have to leave the single market (which was then admitted).

The Article 50 notification prediction tuned out to be incorrect.  Godot has turned up.

But the reasons which were behind that prediction are still there.

Making the notification is the easy step.  It is the one thing the UK has complete control over, and this week it will be done.

Then the complicated process of Brexit will begin.  Nobody knows how it will end (or if it will end).

But, as I said back in February:  my only prediction now is that those who doubted that the Article 50 notification would ever be seen will get a good-natured ribbing by those who never had such doubts.

**

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