[Ed: Part I of this analysis was published in UKIP Daily here.]
Theresa May made this commitment:
“I look forward to working with the administrations in Scotland, Wales and Northern Ireland to deliver a Brexit that works for the whole of the United Kingdom. Part of that will mean working very carefully to ensure that – as powers are repatriated from Brussels back to Britain – the right powers are returned to Westminster, and the right powers are passed to the devolved administrations of Scotland, Wales and Northern Ireland. So we will work to deliver a practical solution that allows the maintenance of the Common Travel Area with the Republic, while protecting the integrity of the United Kingdom’s immigration system.Nobody wants to return to the borders of the past, so we will make it a priority to deliver a practical solution as soon as we can.”
This could be an excuse for substantial new powers to be given to Scotland, Wales and Northern Ireland in an attempt to stifle opposition to the UK withdrawal from the EU. But every time new powers are granted to the devolved administrations this edges them nearer to independence because it prepares them for independence.
The Common Travel Area with the Republic of Ireland
Independence is a medium to long term problem. The border with the Republic of Ireland (ROI) is an immediate and very serious problem. If the Common Travel Area is retained then the UK will not have control of her borders because anyone wishing to settle in the UK can do so via the ROI.
May will doubtless come up with claims that new surveillance techniques based on computer systems to identify and track migrants working or drawing benefits will substitute for physical border controls, but does anyone have any faith that the British state will have either the resources or the will to identify those working illegally (many will simply work in the black economy) and to deport them? The lack of a hard border between the RoI and Northern Ireland would also mean that EU goods could be smuggled into the UK if a tariff wall exists between the UK and the EU.
Our Europhile Parliament
But whatever agreement is finally made between the government and the EU, it will not be a done deal. Why? Because May revealed that she could:
“[…] confirm today that the Government will put the final deal that is agreed between the UK and the EU to a vote in both Houses of Parliament, before it comes into force.”
By committing to allowing both the Lords and Commons to vote on whatever is agreed she has greatly increased the opportunity for Parliament to either delay or even thwart Brexit altogether. Whether the vote is on a motion or on a Bill, either can be amended, so matters could be delayed or sent back to square one not only by a vote against the motion or Bill, but also by amending the motion or Bill to overthrow the terms of the agreement between the Government and the EU.
As the Prime Minister has committed the Government to allowing the Lords and Commons a vote, it would be impossible to meaningfully accuse those in Parliament who voted against the terms of the agreement between the Government and the EU of acting against the will of the people because by agreeing to allowing the Lords and Commons a vote they have accepted that Parliament has the right to refuse or amend the terms agreed with the EU.
Not only that – it would be politically hideously difficult going on impossible to ensure the Lords voted for whatever terms were put before them by arranging to have hundreds of new peers created who could be trusted to vote for the terms. Not only that, but by agreeing to a vote by the Lords May has given the peers who want to remain in the EU a respectable excuse for going against the referendum result and, if the Commons did vote to agree the terms, of thwarting the Commons as well by delaying matters. The Government could use the Parliament Act to force a Bill through after a year or so but has no power over a defeated motion, so if a motion was rejected a Bill would have to brought forward which would mean further delay. Because of this a Bill is more likely than a motion of both Houses.
There is the further complication of legislation to give legal post-Brexit status to all the EU law which the UK is already committed to:
“[…] as we repeal the European Communities Act, we will convert the “acquis” – the body of existing EU law – into British law.”
Presumably this would be legislation separate from any legislation brought forward to allow the Lords and Commons to vote on the terms agreed with the EU. If so that would allow further opportunities for substantial delay. Moreover, if the UK leaves after two years (the period stipulated in Article 50 if the EU does not agree to an extension) without any agreement having been reached between the UK and the EU, the need to pass a Bill making EU-derived law UK law would still exist and the opportunities for delay or rejection by one or both of the Houses of Parliament would still be there, arguably in an enhanced form.
As things stand the earliest the UK can escape from the EU will be March 2019. The next General Election is due on 7th May 2020 according to the Fixed Term Parliaments Act 2011. The only ways an election could be called earlier is either two thirds of the House of Commons (that is two thirds of the total number of Commons seats, not two thirds of those who vote – 417 seats out of 650) vote for an earlier election or the Government loses a vote of No Confidence. With the present balance of the Commons and the state of disarray in the Parliamentary Labour Party the first option is very unlikely and the second would require the absurdity of Theresa May somehow engineering a vote of confidence against her own government. Hence, either is very unlikely. That would mean that when Parliament gets to vote on whatever agreement is reached by the Government and the EU, even the Lords alone would have the power to delay matters either into the general election or shortly after it.
The political weather might change radically by 2020. It could be that the EU deliberately gives the UK the run around for two years or more and no agreement is reached before March 2019 or one or more of the 27 remaining EU members refuses to ratify the proposed agreement. The UK would then be forced either to leave the EU without an agreement and trade under WTO rules, or the UK government under the pressure of time would have to cave in and agree to very disadvantageous terms for the UK. It could even be that the Government, their backbenchers or the entire Parliament of both Houses will secretly be delighted if the latter happens because it would probably re-attach the UK to the EU. It is a way to enable future UK Governments to be able to embed the UK ever more firmly back into the EU.
Improbable? Well, remember this: the Government, the Commons and the Lords are strongly in favour of the UK remaining in the EU. The Prime Minister, Chancellor and Home Secretary are all remainers at heart and the Foreign Secretary is a shameless opportunist who would come out for remain at the drop of a hat if he thought it would aid his political career. Not only that but the Civil Service at least at senior levels are also very wedded to the idea of the UK being in the EU.
The idea of leaving and trading under WTO rules until if and when new trade arrangements can be made with the EU is not an unattractive one. The problem is that if it happens in 2019 that will have cost the UK a great deal. If it was done now this would have a number of great advantages. It would immediately bring certainty whereas delaying the UK’s departure until March 2019 or even later will involve a great deal of uncertainty. In addition, the UK could stop paying the huge subsidy the EU extracts from the UK each year soon, decide where the money the EU currently returns to the UK with strings attached may be spent, be immediately removed from the reach of the European Court of Justice, be free to make new trade deals with the rest of the world, control immigration from the European Economic Area (EEA) and repeal or amend any of the EU inspired legislation which is on the Statute Book.
If the UK remains entwined within the EU until March 2019, regardless of whether any agreement is reached between the UK and the EU, we will have since the vote to leave on 23rd June last year have paid 33 months of the huge annual subsidy to the EU (33 months worth would be around £26 billion), have had to spend the money which the EU currently returns to the UK on what the EU directs it shall be spent on, accept any new EU laws and regulations which cannot be vetoed, remain under the European Court of Justice’s jurisdiction and, most importantly, be unable to control immigration from the EEA, which if it remains at the level of last year (net EEA immigration to the UK is estimated to be 189,000 in the Year Ending June 2016) would mean around half a million more immigrants by the time the UK leaves the EU (and it could easily be higher as would-be immigrants scramble to get in before the UK’s departs the EU).
The long and the short of the speech is that despite its range of topics May’s speech provided precious little clarity overall about either what the Government will be seeking or what will happen once an agreement is made between the UK and the EU or no agreement is made.