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How much harm can one man do?

Donald Trump, president-elect

Donald Trump, president-elect

Donald Trump defeating Hillary Clinton wasn’t the result most of us wanted or expected, but it’s what we’ve got. The question now is what next?

Trump’s promises on the campaign trail were variously bombastic and implausible. He couldn’t keep them all, even if they were worth keeping, and many of them are not.

The parallel with Britain’s EU referendum is striking. A set of mutually incompatible demands and half-truths is no basis on which to chart the future of a country. The rest of the world looks on mystified, wondering who can make sense of all this.

And maybe that’s where there’s a glimmer of hope, the notion of who.

When it comes to Britain leaving the EU, we are taking a decision for a generation. Our constitution will be torn apart, our integration into the global economy dismantled, our citizens deprived of fundamental rights. We have a constitutional revolution but nobody to be held to account.  The prime minister was officially a Remain campaigner, in a modest sort of way, pledged now to make a success of a policy she opposed.  Many of the other Leave leaders are now scattered, and the rest will scatter soon.  If life outside the EU is worse than life inside, there will be nobody to blame.

With Donald Trump, though, it is not the constitution that might be ripped up but the government.  All kinds of awful things might follow from Trump policies, or what follows after Trump policies have failed, but there will be someone responsible.

When John Adams wrote of

a government of laws, and not of men

this is what he meant.  The concession speech by Hillary Clinton spoke of the importance of the constitution: the constitution is what Americans can cling to now.

Who’s the judge?

Theresa May, prime minister - what if she changed her mind?

Theresa May, showing herself to be a poor judge

Speaking at Heathrow airport today, prime minister Theresa May said:

 “I think we all have to remember, and what MPs and peers have to remember, is that we had a vote on 23 June.  The British people, the majority of the British people, voted to leave the European Union. The government is now getting on with that.”

If I may, I don’t think anyone has actually forgotten there was a referendum on 23 June.  The reality of that experience is currently quite strong at the moment.  “Majority” means the majority of those who voted, by the way, not actually a majority of those who were eligible to vote.

She went on:

“I want to ensure that we get the best possible deal for the UK as we leave the EU, that’s the best possible deal for trading with and operating within the single European market.  But alongside that, the UK will be a confident, outward-looking nation, taking its place on the world stage, looking to build relationships around the globe.”

How to decide what is the “best possible deal”?  It can’t be derived from the result of the vote on 23 June, because there was nothing in the referendum question about what should replace EU membership, merely that it should be replaced.  The referendum has not settled that question.

The government might have the job of negotiating the deal, but can the decision about “best possible” be left to them?  That would be rather alien to our traditions as a country, which provide for the government to be accountable to parliament.  So if parliament is to have a role in this decision, how should it exercise that role?  Should it be at the beginning and throughout the process, when it can influence and control what the government is doing, or should it merely when it is too late to make a difference?

If Theresa May does not want parliament involved at the outset – she is appealing against the decision last Thursday that parliament should vote before Article 50 is triggered –she needs to explain what she thinks parliament should be allowed to do.  The silence on this crucial issue is deafening.

A democratic scandal

Pride of Sunderland

Pride of Sunderland

There’s been a lot of reporting lately on what deal the government might have offered Nissan. The Japanese car manufacturer (part-owned by Renault) has a major manufacturing plant at Sunderland which exports a large proportion of its output to the EU27. What happens to that factory if Britain leaves the EU?

To be outside the single market creates the risk that the rules about cars will start to diverge and make it harder to export to the EU. (Read an explanation here.) Nissan is also a major importer, too, of components for its finished cars: importing them could also become more difficult.

There is not only the single market at stake but also the customs union. To be outside the same customs union as the EU27 would add delay and uncertainty (meaning costs) into the Nissan supply chain. And supply chains are increasingly important in the globalised world (read about them here and here).

It would be a serious blow if a major international company like Nissan were to start to withdraw from the UK. The Leave economic case rested on that not happening. If the reasons for leaving the EU started to evaporate before notice to leave was even given, where would that leave the credibility of the government?

So even more than economics, this is about politics.

And what has been offered? No-one will tell us. The government tells reporters today:

Alex Forsyth (‪@AlexForsythBBC)
31/10/2016, 17:27
Greg Clark says he won’t publish Nissan letters as businesses should be assured Govt won’t publish info of interest to their competitors

So we will have to try and guess. It would be hard for the government to have promised anything regarding the single market or the customs union as it’s not in the government’s gift. There’s a negotiation, remember, and the others could still say no.

More likely, the government has said something about tone and objectives and made concessions on Nissan-specific concerns in other areas. To be fair, that’s one of the things that government ought to be doing, but doing so openly and publicly. It’s not the concern that’s wrong, but the secrecy.

But let’s get used to this. This is the future outside the EU. British economic relations with Europe will be determined not by the open and elected European Parliament, nor by ministers in the Council held accountable to their respective national parliaments, but by secretive diplomatic negotiations informed only by whispers from the largest international corporations. Parliament will only find out what’s going on after it’s already happened.

Nigel Farage, in his jubilant victory speech on the morning of 24 June, declared that the Leave campaign had “fought against the multinationals“. It would be hard to believe that now.

Punished by the EU

What do we look like to him?

What do we look like to him?

I borrowed a dog yesterday. There’s a website where people who don’t own dogs but want to walk them can make contact with dog owners who want to put their feet up for a bit. A few minutes on the site and the exchange of a few emails got us the company of a good-natured retriever for a couple of hours in the park. He walked, he ran, he chased a ball, he sniffed the bottoms of other dogs and the ground where other dogs had been. He did a lot of sniffing, that dog.

I read a lovely piece a while ago about dogs and how they are different from people. The next couple of paragraphs come from that source, but I can’t give it credit as I can’t remember what it was. Anyway, the starting point was the idea that dogs are less evolved than humans: dogs can’t recognise themselves in mirrors, for example.

The response was that this is a very human-centric way of looking at things. Why is recognising yourself in a mirror the test of anything? Dogs, after all, can identify each other by the scent of their urine. Can you distinguish between your friends that way? Thought not. Who’s feeling more evolved now? A lamppost, went the source I can’t remember, is like a Facebook page for dogs: they can tell who else has posted on the page and perhaps will leave their own comments too.

The point of this story is that it’s not all about us. There are other ways of looking at things.

Take the discussion about whether the EU27 will try to punish the UK for leaving the EU. To deny British companies access to the single market without tariff and non-tariff barriers would feel like a punishment, and would invite retaliation, and would be economically harmful to everyone. Why would they do that? Can’t they recognise themselves in a mirror?

But look at it the other way. The European Union has for nearly 60 years been a complex web of trade offs and partnerships – and a few sacrifices too – in the pursuit of an integrated political and economic Europe. To allow a country to pick and choose which bits it wants would be to risk the whole thing unraveling, particularly if that country had just voted to Leave in a referendum. It would be self-destructive to give in to such demands. The least economic harm would come from standing firm.

If it looks like punishment, it only looks like punishment to us. It looks like self defence to them. And which patriot, who insists that his own country should put its interests first, can deny that right to other countries too?

What if the government wanted to stay in the EU?

Theresa May, prime minister - what if she changed her mind?

Theresa May, prime minister – what if she changed her mind?

The referendum on 23 June was only advisory. A majority of those who voted may have voted to Leave, but that result was not binding.

Had the vote in the electoral reform referendum been in favour of AV, by contrast, the legislation that created the referendum would also have implemented the result. That referendum had a binding outcome.

There was no such automatic provision in the legislation for the EU referendum. There could have been, but there wasn’t. It is the absence of this provision that has led to the current court case on whether the government has the power to implement the result of the referendum on its own, by triggering Article 50, or whether a parliamentary vote is needed first.

The reason for the fight is that the government had declared that it will implement Article 50 and take Britain out of the EU even though a large majority of MPs were on the Remain side. It would be pushing it to say that all those Remain MPs are still against Britain leaving the EU, in the light of the 52-48 result, but even so, parliament (and the House of Lords in particular) is certainly less favourably disposed to Brexit.

The issue at stake in the court case is a fundamental constitutional principle. I think we can usefully illustrate it by reversing the facts.

Imagine that parliament was in favour of leaving but that the government was not. The prime minister was endlessly finding reasons not to trigger Article 50 – weeks and months were passing with Britain remaining an EU member, subject to the jurisdiction of the unelected European Court of Justice, depriving the NHS of £350 million a week. What could parliament do?

The answer, if we consider this from the point of view of constitutional principle, is nothing. To exercise the royal prerogative is a matter for the government and not the parliament. If the government refuses to act on the matter, then there is nothing to be done.

The people have spoken, parliament agrees, but constitution says no.

Wouldn’t that be a democratic scandal? Wouldn’t that be the negation of electoral democracy?

And if it’s true one way, it must be true the other. We are talking about a constitutional principle, here, and not a matter of political tactics.

If the government is really interested in parliamentary democracy – and there are times when I wonder – then this legal case shouldn’t even be a fight.

Parliament still matters

Black Rod - vestigial

Black Rod – vestigial

In parallel with the court case on whether parliament is required to authorise the departure of the UK from the European Union (read about it here and here), there has been an equivalent case in Northern Ireland.

The High Court in Belfast has been asked to rule similarly on whether the government can give notice under Article 50 without parliamentary assent, with particular reference to the Good Friday and other legal instruments of north-south cooperation.  The prospect that, in Ireland, the border between the republic and the north could also be the border of the EU provokes a lot of alarm: what does this mean for the free movement of people?  What does this mean for the free movement of goods?  Does the parliament in Westminster need to have a say?

The judgment last Friday from Mr Justice Maguire was that it did not.  Or rather that it did not, yet.  An important paragraph in the judgment reads thus:

The actual notification does not, in itself, alter the law of the UK.  Rather, it is the beginning of a process which ultimately will probably lead to changes in UK law.  On the day after the notice has been given, the law will in fact be the same as it was on the day before it was given.  The rights of individual citizens will not have changed – though it is, of course, true that in due course the body of EU law as it applies in the UK will, very likely, become the subject of change.  But at the point when this occurs the process necessarily will be one controlled by parliamentary legislation, as this is the mechanism for changing law in the UK.

I think the last sentence in this paragraph is wrong.

As a member state of the EU, the UK has got used to law in the UK being changed by European decision, not by parliamentary legislation.  This website thinks that this is a good thing, too, but even if you don’t, it is still a fact.

The process of leaving the EU is controlled not by UK legislation but the EU treaties: that’s what Article 50 is all about.  It is not up to the British parliament to make Britain leave the EU but up to the European institutions, once Article 50 is triggered.  The powers and obligations of those institutions are set down by treaty, a treaty which parliament has ratified but cannot amend on its own.

To say that it is parliamentary legislation that will take the UK out of the EU is not correct.  Two years after the government makes a notification under Article 50, the rest of the EU will cease to consider the UK as a member.  Changing British law – passing the European Communities Act 1972 – was necessary for Britain to join the EU; changing the law is not necessary for it to leave.

This analysis allows for the possibility that British law on EU membership could remain in force – if parliament refuses to repeal it – but to no effect, if the UK leaves the EU anyway.  The ECA 1972 would remain a vestigial piece of the British constitution.  We have plenty of those at the moment – Black Rod, anyone? – so there is no reason why we cannot add another.

It is increasingly alarming that a major constitutional change could be effected on the basis of such a poorly thought-out referendum procedure.  An unclear question, no threshold for vote or turnout, a scandalously dishonest campaign, and no obvious procedure now.

Anyone who believes in parliamentary democracy must surely be distraught that parliament might be sidelined at this crucial moment in our country’s history.  Maybe the silence from the Leavers tells us something about their real motives?

A circular argument

Andrew Blick - right to be worried about the power of the government

Andrew Blick – right to be worried about the power of the government

The high court bench has retired now to consider its judgment in the case of whether parliament has a say in triggering article 50. If not, the government can take the UK out of the European Union without a parliamentary vote.

Andrew Blick makes the very good point that if the government has the constitutional power to do this, it has the constitutional power even without a referendum. A non-binding referendum surely can’t limit the power of the government if parliament cannot.

What an amazing outcome that would be. The government has the power to make fundamental and irreversible changes to our country, its economy, its citizens and its democracy by simple prime ministerial decision. The notion of an elective dictatorship would be back with a bang.

A lot of the argument in the case seems to rest on what parliament intended. Specifically the case for the government, which supposes that the Royal Prerogative is what is meant by the UK’s “constitutional arrangements”, argues that parliament has agreed this very arrangement. Had it wanted something different, it could have inserted such provisions into the act that created the referendum in the first place.

But that argument is entirely circular. What if parliament already believed that the “constitutional arrangements” already required a parliamentary vote? There would be no need to restate something that was already clear. Parliament’s silence on the Royal Prerogative cannot necessarily be taken as agreement to its use.

One of the joys of this whole debate is the extent that it reveals the absurdities and ridiculousness of the British constitution. Let us hope that some good can come from this situation and that Britain can become more democratic as a result. But if the main outcome is that the executive gets stronger and the legislature weaker – as would be implied by the government winning this case – then modern democracy seems a very long way off.

Clinton vs Trump

During previous American presidential elections, this website has published analyses and reports of the candidates and their policy proposals. It may be a domestic election but it has implications for the whole world.

Such analysis this time seems rather unnecessary. There can’t be many readers who remain in doubt about who is the better candidate. And it’s not the chap who boasts – yes, boasts – of sexually assaulting women.

The interesting question is how come a candidate like that got so close to winning. (And might indeed still win.)

There are two competing theories, and probably both of them are right.

The first is that it is about money. Globalisation may have benefited everybody in aggregate, but people do not live in the aggregate. Some people more than others have been able to take advantage of new markets, new technologies, and new sources of labour.

The Polish plumber has benefited from the right to work elsewhere in the EU, as had the west European home owner who has hired him. The British plumber who has faced greater competition can be forgiven for feeling differently.

The chart below shows how incomes have grown during the golden 30 years of globalisation, from 1988 until the financial crash in 2008. Everyone got richer, but some got a lot richer than others.

incomegains

The 1%, to the furthest right on the chart, did well, as you might have expected. So did the people in the band from about 50-70: these are the richer people in the poorer countries.

What is striking is that both groups did better than the people at 80-95%. These are the British plumbers, so to speak, who have experienced greater income inequality at home and greater competition abroad. They are still richer than they were, but you can see why it doesn’t feel like it.

The last eight years, not covered in the data above, have probably exaggerated the same trend. Quantitative easing has largely boosted asset values, to the benefit of those who’ve got assets. The continuing upward rise in the London housing market, already over-valued by historical standards, shows that something is going wrong.

Donald Trump speaks for that 80-95%. People who used to think of themselves as among life’s winners but no longer so sure. Populist nationalist economics is the answer, which will only make everyone poorer (except the cronies on the inside: they always do OK).

The second theory is that it is not about money but about identity. Support for Donald Trump, and for Nigel Farage and Marine Le Pen and plenty of others, is not just about economics. If it were, why build a wall? Why insist of serving pork in French schools? Why ban the burka?

Lord Ashcroft’s polling on Referendum Day itself produced some very interesting findings.
ill-vs-good

There was a strong correlation between support for multiculturalism, social liberalism, feminisim and immigration, and voting to stay in the EU.  Other data suggests that even the death penalty was a lot more popular among Leavers than Remainers.  This isn’t about detachment from the Brussels bubble, or differences of opinion on the hierarchy of norms.  No, this is something different.

Our populism is also authoritarian and nationalist, and perhaps the authoritarian nationalism is fact the point.  There were some liberal Leavers – “out of Europe and into the world” – but we’re not hearing very much from them now. The principal argument against the EU was never that it regulated badly but that it had foreigners in it (and if there was bad regulation, it was because of those foreigners).

Hilary Clinton has always supported a more outward-looking, less populist approach. Under pressure from Bernie Sanders, she abandoned her support for the TTPA, the trans-Pacific free trade deal, but if elected she will surely be open to finding a replacement.

Clinton versus Trump oughtn’t to be a contest. That it is, is very worrying, even if Hillary Clinton wins. What is going on in our economies (if you follow the first theory) or our democracies (if you follow the second)?

 

Who needs a trade deal?

Daniel Hannan MEP (picture Bastin)

Daniel Hannan MEP (picture Bastin)

Debate rages, in the House of Commons and elsewhere, about what remains after Britain leaves the EU. (OK, debate doesn’t particularly rage in the House of Commons, but it needs to, even if the government would rather it didn’t.)

In particular, there is the question of the trading relations between the UK and the EU27. At present, there are consistent regulations, no tariffs and no customs procedures. Which of those will survive?

The idealist believes that they all will. There is no economic reason to change anything, after all. Here’s Daniel Hannan MEP, for example:

Full WTO tariffs would cost British exporters £5.2 billion and EU exporters £12.9 billion. Which is why neither side will impose them.

But we can’t rely on economics. If politics didn’t trump economics, we wouldn’t be in this mess in the first place.

And let’s take a closer look at Daniel Hannan’s maths.

A tariff, which he treats as a tax paid by exporters, is better understood as a tax paid by consumers. That’s how a liberal would describe it, anyway. So, rather than the EU paying £12.9 billion and the UK £5.2 billion, the actual costs fall the other way round.

The failure of the UK and the EU to agree a replacement for their current single market trading rules would cost EU consumers £5.2 billion (£12 each) and British consumers £12.9 billion (or 202 each, that is 17 times as much).

As the negotiating deadline gets close and both sides are looking at failure, the British negotiating team will be looking 17 times as nervous and have 17 times the urge to make concessions to keep the talks afloat.

Not a happy position for a country to be in, still less a position a country has chosen to be in. No wonder Daniel Hannan can’t face the maths.

The biggest lie

Are we in or are we out? published by Britain in Europe

Are we in or are we out? published by Britain in Europe

At an event to analyse the implications of the Brexit vote and try to predict what comes next. One question from the audience – what was the biggest lie told during the referendum campaign?

There was general consensus among the panel that £350 million for the NHS was the worst thing said, with maybe the imminence of Turkish accession a close second. Both shameful, both knowingly false, both aimed at weak points in the Remain case.

But a lie has been told by the Remain side, not during the campaign particularly but for the preceding 20 years. We were told repeatedly that it was possible to be half in the European Union.

We could benefit from the single market while complaining about the rules. We could rely on the rule of law while objecting to unelected foreign judges. We could take part in the political institutions without respecting the politicians themselves.

All of that we were told: none of it was true.

Everyone wants to eat in the nicest restaurants and have someone else pick up the bill. It’s a childish illusion, not fit for a democracy in the 21st century. In the end, the meal has to be paid for.

The central argument of the initial Britain in Europe campaign in 1999, before New Labour got involved, was that membership of the EU without joining the euro would prove to be unsustainable. And so, I’m afraid, it has proved.