Kev's Column Special: Brexit Vote Update

Ahead of the "Meaningful Vote" on Tuesday 15th January 2019 Kevin set out his views in a letter to residents who had contacted him about Brexit. You can read it below:

Dear All,

Thank you for your correspondence about Brexit and the “Meaningful Vote” due to take place in parliament later today.

I have received nearly 1,000 letters and emails about the draft Withdrawal Agreement. These ranged from residents going into detail about their views in personal letters to emails via campaign websites which allow residents to select an option, then send me an email.

The views expressed include the full spectrum of options from Revoking Article 50 to leaving without a withdrawal agreement and trading on World Trade Organisation Terms. In short it is impossible for me to agree with every view expressed.

There has been a large amount of disinformation circulated about this debate especially on Social media, with some of this reflected in the comments sent to me. I would suggest anyone with a specific interest in an area does take time to read the superb analysis produced by the House of Commons Library. This does rebut the more outlandish claims made about the Withdrawal Agreement or Leaving Without One (No Deal).

You can find them by following these links:

Withdrawal Agreement:

https://researchbriefings.parliament.uk/ResearchBriefing/Summary/CBP-8453

Leaving without a deal:

https://researchbriefings.parliament.uk/ResearchBriefing/Summary/CBP-8397

Whilst Brexit is a major challenge for our nation a range of issues continue to affect our bay, hence my team and I have continued our work picking up matters such as our National Health Service, Transport Services, Homelessness, Defence, Regeneration, Hi-Tech Jobs, Universal Credit and individual problems affecting residents where my help is needed.

I did not come into politics or seek election as our bay’s MP to only focus on one issue to the exclusion of all others, hence whilst I have read the many views sent, I simply cannot abandon all my other work to respond in detail to every point made. I will though seek in this letter to reply to the most common themes, some of the alternatives put forward and what may happen if the House of Commons does vote the deal down on Tuesday as is being predicted.

  1. Revoke Article 50 – Stay in The European Union

Some correspondents have argued Parliament should simply revoke Article 50 and stay in the European Union following a recent European Court of Justice ruling the UK could do so without the consent of other EU Member states.

The result of the referendum on the 23rd June 2016 was clear following a lengthy debate in which both sides put their case. Following the Referendum result 494 MPs from across the political spectrum voted to trigger Article 50, with only 122 voting against, nearly half of which were members of the Scottish National Party.

In June 2017 both main political parties also pledged in their manifestos at the General Election in 2017 to respect the EU referendum result, and these parties received over 80 percent of the vote nationally.  Some MPs were elected who stood at the last election on a pledge to overturn the result and stay in the EU, yet the vast majority were not, with the SNP losing a third of its seats.

Parliament having freely voted to give the decision about the UK’s continuing Membership of the European Union to the electorate in a Referendum it would be democratically unacceptable to just overturn this in a simple parliamentary vote. I therefore oppose this option.

  1. Extend Article 50 – Delay Leaving the European Union

Some commentators and correspondents have suggested the UK should seek to extend Article 50, delay leaving the EU, to allow either allow more time for negotiations so different suggestions can be put forward or just to give MPs more time to decide.

Extending for a set period, rather than revoking, Article 50 would require the unanimous consent of the European Council (Made up of all 27 continuing EU Member States). Whilst some EU Members have indicated they might accept this to facilitate the UK staying in the EU after a Second Referendum, just asking for an extension to in effect “kick the can” down the road rather than make a decision is not an effective strategy.

Many EU Leaders also want to resolve the debates about Brexit and move on to other matters, not drag things out further. Extending Article 50 does not change the fundamental choices facing us or likely to see EU states fundamentally change their view.

The biggest flaw in this strategy is the forthcoming European Elections being held on 23–26 May 2019. The UK would not only have to decide whether to take part in these elections having extended Article 50 but wait until a new European Commission has been appointed afterwards to continue further meaningful discussions. This is unlikely to be confirmed fully until after the summer.

The European Parliament, whose consent would be required for a Withdrawal Agreement of any type, will also enter a period of effective suspension just before and for a short period afterwards. This makes it harder to get any deal agreed, not easier, during an extension period.

The worst aspect though is the impact extending the period of uncertainty would have on the UK Economy. Businesses I speak with here in the bay cite uncertainty as the worst aspect of the Brexit process, they want to get on with planning for whatever the outcome is.

In Parliament those arguing for more time rarely seem able to outline exactly what benefit this will bring, other than delaying their need to decide on which option they will vote for and explain this to their constituents and local businesses. This option is about delay, not decision, I therefore do not support it.

  1. Norway, Switzerland, EEA and Common Market 2.0

These options are similar in theme as they suggest the UK looks to enter or copy one of the existing agreements the EU has with other states on its borders.

Norway is a member of the European Economic Area, placing it in the European Single Market and requiring it to abide by its rules on both products and services. Norway is also required to make significant contributions to the EU Budget.

Norway has also signed up to the Schengen Border Free Zone, which the UK is not a member of. This means Passport checks are not carried out at borders with other European Countries in the Schengen Zone or on travellers arriving from other Schengen Zone Countries. Those travelling to the UK from EU Countries, except the Republic of Ireland, must show a passport before entry is permitted.

Norway is not a member of the Common Fisheries Policy and instead has an agreement with the EU as an independent coastal state in relation to shared fisheries in the North Sea. Norway does pay a tariff on fish exports to the European Union, but has a thriving fishing industry, as does Iceland in a similar position.

The Fisheries Agreement Norway has with the EU is the model for the agreement proposed under the Withdrawal Agreement and future relationship being proposed by the Government. The Norwegian Fishing Industry is doing well, with much of its product consumed here in the UK.

Whilst the Norway model may suit the needs of Norwegians the overall position is not a suitable model for the UK. Adopting “Norway” would not only require the UK to follow rules on goods after the transition period, but crucially see our services industry (Including Financial Services) which makes up 80% of our economy included in single market regulations on a permanent basis. This despite us having no say on them having left the EU. Services are not covered by the NI Backstop provisions if they were to come into effect.

Some have suggested we could join this arrangement on a temporary basis. I struggle to believe either the EU, or individual EEA states, would allow a major renegotiation to let the UK in, only for the UK to leave a few years later.

The recently announced “Common Market 2.0” is mostly supported by those who have advocated the Norway option and seems more of a re-brand than a major change.

Finally some have cited Switzerland as an option, mostly in relation to the Northern Irish Backstop and a social media image highlighting how it has Open Borders with 5 EU states. Yet this is not due to the border being ignored by the EU, but because Switzerland, like Norway, is a member of the European Single Market (with a requirement to follow its rules permanently) and the Schengen Zone. This removes the need for either regulatory or passport checks at their borders with the EU, hence the open border cited.

Except for the Fishing Industry it is hard to see any specific benefit from adopting this model, with it appearing to be promoted by those who would prefer the UK to stay in the EU. It would also still require a Withdrawal Agreement to be completed with the EU which, depending on the model adopted, may still include a requirement for a Northern Irish Backstop.

For the reasons set out above I do not support the Norway\Switzerland\Common Market 2.0 option

  1. Second Referendum\People’s Vote

Several residents got in touch asking if there could be another Referendum.

A Second Referendum would provoke cynicism among many voters as, having been told the Referendum in 2016 would make the final choice, they were asked to vote again because politicians disagreed with their decision. It would also be hard to argue the Second Referendum would be the final choice, having in effect ignored the first one by calling a second less than three years later. It also raises the question of when a third could be held if the result is similar or even “a best of five” referendum as one Labour MP stated last week.

When a decision of constitutional significance is made in a Referendum, it is important democratic processes are followed to ensure it is respected. Parliament gave voters the final say on the UK's membership of the EU and the result must be respected, even if it was unexpected by some or not the one I campaigned for.

The ballot paper presented voters with a choice to remain in the EU or to leave. The consequences of either decision were communicated by campaign groups through a variety of print, audio-visual and digital media. The Government also sent a document to every household in the UK on the benefits of staying in the EU, in which it was clear the choice made by voters would be implemented.

As in every election, it was up to the electorate to judge the merits of the different arguments and over 17.4 million voters decided to leave the EU. Some emails have pointed to fines issued by the electoral commission, yet it is worth noting this has happened to groups on both sides of the debate. Equally, the Electoral Commission has previously declared the referendum was delivered without any major issues and the result was clear.

Both sides made ill advised claims during the Referendum Campaign, with many of these debated and rebutted at the time. Yet ultimately voters decided to Leave, with the result in Torbay being clear and on a high turnout.

Whilst some emails pointed to opinion polls produced by campaign groups indicating a new Referendum may produce a remain result it is worth noting most polls before the last Referendum predicted the same. When out on doorsteps in the bay speaking with residents most would still vote the way they did last time, with some switching but crucially many who voted Remain respecting the decision needs to be implemented.  

Given the timescales a Second Referendum would require parliament to bypass many of the usual procedures for such a vote and decide crucial questions, such as the wording of the question, politically rather than ask the Electoral Commission to consult on it. This type of behaviour would further undermine any confidence in the outcome.

For these reasons I do not support holding a second referendum.

  1. Leaving The European Union Without a Deal\WTO –  “No Deal”

The other option to get significant support in my correspondence is for the UK to leave without a withdrawal agreement.

I believe the UK could succeed under any circumstances after leaving the EU. Our people have high skills, many of our businesses are at the cutting edge of technology, the beauty of our bay will attract tourists and our financial services sector is globally dominant. I have never accepted some of the scare stories about this outcome, such as Troops delivering food or air drops by the RAF of Medicines. Whilst entertaining in the media, my role at Cabinet Office tells me they are very wide of the mark.

The Government could implement plans to mitigate any negative impacts of this outcome yet faces a key challenge in doing so. The numbers in parliament which would vote against this, with it being clear a majority of MPs do not support this option or will seek to block it. The events of the last week confirm this, with some who want to see Article 50 revoked hoping to force parliament into a choice between the two opposites.

First the Speaker selected an amendment to the Finance Bill making use of the powers granted to Ministers to manage a “no deal” outcome subject to a further parliamentary resolution. The Amendment was questionable in terms of whether it should have been selected for debate, yet it was passed with a small majority.

I opposed this amendment on the basis it was totally illogical to complain about the potential impact of No Deal, then vote to make it hard to mitigate for. Yet the Government was defeated and the intention in doing so was to show a majority of MPs would oppose No Deal.

Second, and most significantly, was the moment on Wednesday when the Speaker over ruled all official advice on parliamentary rules and all previous precedents on such motions, to call for a vote on an amendment to what was an “unamendable” motion. The Speaker effectively using the privilege of his office to allow it to be voted on, with the Government again defeated.

The subject of this amendment might sound minor, giving the government only 3 days to come back with an alternative if the deal rejected. Yet significantly this overrides the 21 days set out in statute, a House of Commons Standing Order over riding a piece of primary law is literally unheard of. I challenged the Speaker directly in the Chamber about the effect of this and do worry what the future impact of this precedent may be,

What Wednesday indicates is every aspect of parliamentary procedure will be available to those determined to block no deal if the deal goes down on Tuesday, with a slim majority prepared to support this.

Those voting no to the deal in the hope of a “no deal” outcome based on World Trade Organisation rules will be voting in the same direction as those hoping for No Brexit. They cannot both be right.

Given the votes in parliament last week I do not believe voting against the Withdrawal Agreement will produce this outcome.

  1. The Withdrawal Agreement

Finally other correspondents have been in touch asking me to vote for the Withdrawal Agreement negotiated with the European Union.

For any Trade Agreement or Future Relationship with the EU, other than trading on WTO Terms, a Withdrawal Agreement will be necessary. It is in effect the divorce agreement which separates us from the Treaties which the EU is found on. The only relationship the UK will have with the EU after 29th March is what is in this Treaty or a future one agreed.

There are many aspects to it which are well covered by the House of Commons Library briefing and this could become a dissertation piece to cover each one. Many areas of the deal are supported by MPs across the House, even if they are not supporting the whole package. Few would argue with the idea the UK should continue to co-operate with our neighbours in terms of ensuring those who commit crimes face justice or intelligence is shared to prevent terror attacks.

Claims our military would become subject to the EU via the agreement are totally incorrect, not least given our position as a nuclear power and the constitutions of many continuing EU members. Some in the EU want to see a European Military force created.

Whilst the UK will co-operate, voluntarily, with EU missions after Brexit where we have a direct national interest in the arrangements do not replicate those of NATO where we can be compelled to take part. There is no equivalent of the Article 5 Mutual Defence provisions or the requirement to contribute to standing forces.

Turning to the deal, the EU negotiators are clear any Withdrawal Agreement must have three elements:

  1. Guarantees Around Citizens Rights
  2. Agreement on Money
  3. Guarantees Around the Irish Border

The first of these is relatively uncontroversial as during the Referendum all were clear those who have made Torbay their home under their treaty rights would be welcome to stay. The UK Government has already made clear if there is no agreement it will legislate unilaterally to protect the rights of EU Citizens under UK Law, except for a small proportion who have abused our hospitality by committing criminal offences.

The biggest difference in terms of securing a deal is the Withdrawal Agreement would see the rights of UK Citizens living in the EU guaranteed by the Treaty, with enforcement by the European Court of Justice. If we leave without a Withdrawal Agreement it will be down to each of the 27 Member States to decide their policy on UK citizens. Whilst many will make them welcome to stay there is no guarantee without a deal.

The second is an agreement on residual financial liabilities. It was predicted the financial settlement could be up to £100 billion due to demands by the EU. The final settlement is expected to come in at far below this at around £35 billion to £39 billion.

The financial settlement has three main parts. This includes continuing to participate in the EU budget until the end the current EU budgetary period in 2020; reste à liquider (RAL) or liability for the EU’s unpaid future commitments and a share of liabilities and contingent liabilities. The following table shows how the UK’s Office of Budget Responsibility has estimated the UK’s settlement will fall:

                                                            Payment period        Amount £ billion

UK participation in EU annual budgets    2019-2020                 16.3

Reste à liquider (RAL)        2021-2028                                         19.8

Other net liabilities   2019-2064                                                     2.6

Total   2019-2064                                                                             38.7

(OBR, report, 29.10.18)

Whilst this payment may be queried any future Trade Deal with the EU, including models such as Canada, Norway or Chequers Style Model do require a settlement to this issue. The UK is also not handing this payment over in one lump sum as the table above makes clear.

The final aspect is the most controversial, the provisions for a Northern Ireland Protocol, commonly referred to as “the backstop”. This part of the agreement covers the situation where the UK and EU have failed to reach an agreement on a Future Trading Relationship, which would keep the border open in Ireland without the need for checks at the border itself, at the end of the Transition Period on 31st December 2020 (It can be extended by up to a maximum of a further 2 years).

The backstop in essence requires Northern Ireland to maintain alignment with key EU goods regulations to avoid the need for regulatory checks at the Irish Border. Yet if Great Britain moved away from these more generally this could see checks needed on goods moving between the UK and NI, a key concern for many Unionists including myself.

There are currently animal health checks between Great Britain and Northern Ireland, due to certain health management being done on an Island of Ireland basis for sensible reasons of geography. Yet these were agreed by the Northern Ireland Assembly, not due to the UK Government changing the rules. Northern Ireland is also part of the All-Ireland Electricity Market\Grid which must operate under a single system of regulations.

The backstop does not cover areas such as the Common Fisheries Policy or European Single Market Rules on Services as neither of these are relevant to ensuring goods can flow across the Irish Land Border freely. It also does not apply to key East – West Trade Routes between Ireland and the UK Mainland.

The UK would be required to maintain the EU common external customs tariffs under the Northern Ireland Backstop, although the UK Exchequer would receive the benefit of the income from this. We would also not be required to make general contributions into the EU Budget, despite having access to the Single Market. This would be a unique and potentially costly position for the EU. The UK Wide customs area means there would be no prospect of tariff barriers between the UK and Northern Ireland.

Freedom of Movement is ended under the backstop arrangements as the Common Travel Area between the UK and the Republic of Ireland, under our own law, prevents the need for Immigration Checks. Irish Citizens will continue to have their rights in the UK protected by the Ireland Act 1949 which supersedes the relevant provisions of the EU Treaties by giving them greater rights, including the ability to vote and stand for the UK Parliament. This position reflects the unique history of the Republic having been part of the UK until 1921.

I regularly speak with Unionist Politicians from Northern Ireland and they are rightly concerned about any potential of their home being treated as a “third country” in relation to the rest of the UK. Yet the industrial goods standards concerned have remained stable for some time. It is also highly unlikely a future UK Parliament will look to drop the standards of products in relation to areas such as safety, chemical composition or environmental standards.

The key controversy of the Backstop comes from a fear it might be used to force the UK to concede on other areas in future Trade Talks (Which are irrelevant to keeping the land border open) as they only way out is to agree a Future Trading Partnership with the European Union or agree via an Arbitration Process “Best Endeavours” were not being used to achieve one.  This presents the concern it may become an instrument of blackmail, rather than merely a guarantee of keeping a border open.

This aspect has caused me to consider carefully what I should do on this agreement, with my paying great attention to the views of the Attorney General and colleagues such as Michael Tomlinson and Robert Courts who are both experienced lawyers. I have also had the chance to discuss it at some length with David Lidington, the Chancellor of the Duchy of Lancaster, as his Parliamentary Private Secretary.

I do take some comfort from the legal position of Article 50 only being able to be used to create a temporary structure, along with the impact its implementation would have on the EU’s own Trade Negotiations. The Customs Zone created of 27, plus 1 (the UK) would create uncertainty with those nations they were talking with. Also the position of the UK having access to the Single Market without accepting Freedom of Movement or paying contributions to the EU Budget on a long term basis may prompt remaining EU States to ask for the same deal.

Finally if the position became completely untenable and the EU were clearly acting in bad faith our constitution would allow the UK to renounce the Treaty via Primary Legislation in Parliament. Whilst this would be a serious step and one which should only be taken with great reluctance it is still a final resort if needed.

Given the position outlined above in relation to leaving without an agreement and the other options put forward, this proposed deal presents the best option available for implementing the result of the Referendum in 2016. I do hope further progress can be made on the backstop, but I believe if there is to be a realistic hope of taking advantage of the exciting opportunities available to the UK after 29th March, such as joining the Comprehensive and Progressive Agreement for Trans-Pacific Partnership, then this deal in some form does need to go through, so I will vote for it..

  1. What Happens Next?

Whilst I am prepared to support the Withdrawal Agreement it is clear from the debate being held over the last week it is likely to be heavily defeated.

There is a strong chance the deal may not even be subject to a straight yes or no vote as several amendments have been submitted, some of which seek to ratify the deal subject to a change, others to reject it totally in favour of another option.

 

Up to 6 amendments will be selected by the Speaker for MPs to vote on tonight. The Government may well be beaten on one of these, which would see the amendment become the substantive decision.

 

The vote last Wednesday means if the deal is not approved MPs are likely to vote on a Plan B or different options.

 

I cannot offer any specific prediction as to what result this may produce as the options which will be available are unclear. As mentioned above large numbers of MPs believe very different outcomes will result from this process. The only certainty is continued uncertainty.

 

I will provide a further update when the next steps may be clearer, yet this period is one of the most unprecedented in recent political history.

 

Yours sincerely,

Kevin Foster MP

House of Commons,

London,

SW1A 0AA