ET claims: the ultimate chart show

A few days ago, on this blog, I noted the “big jump” in the number of articles in the #HR specialist press and elsewhere about the number of employment tribunal claims/cases, all featuring an eye-catching but totally rubbish theory by some law firm trying to drum up business from employers.

It’s an old trick, and I’m sure last week’s dire examples won’t be the last. So, having finally worked out how to change obscure settings on my Mac to enable me to access the monthly ET statistics as well as the quarterly ones – some time ago, the Ministry of Injustice changed the operating system used to publish the statistics, and the new system is not Mac user-friendly – I’ve decided to populate this post with up-to-date charts of the monthly number of ET claims in each jurisdiction. Then, if someone approaches you with a fishy story about an ‘explosion’ or ‘surge’ of claims in any one jurisdiction, you can quickly check it out here. You’re welcome.

In each chart, the red bar marks the introduction of ET fees, in July 2013, and the green bar marks the abolition of those fees, in July 2017. Note that, where a bar goes off the scale, that is usually because it is way off the scale (these jurisdictional charts include all the claims in multiple claimant cases, remember). And, if the law firm (or their PR) is pitching you a story based on a comparison between a period wholly or partly between the red and green bars, and a period to the right of the green bar, then it is bollox. Because all the comparison will be showing is the impact of the abolition of ET fees in July 2017.

Any assertion of a current and significant increase in claims in any one jurisdiction needs to be supported by a comparison between two separate periods (each at least six months long) to the right of the green bar – that is, two periods subsequent to July 2017. Indeed, they should be subsequent to September or even December 2017, as in many jurisdictions it took several months for the impact of the abolition of fees to be fully realised.

I will update each chart every three months, as the latest set of quarterly statistics is published. And I will (probably) get better at formatting the charts to make them more consistent in appearance. Please feel free to use them any way you see fit. Because we can only have a proper debate about access to justice in the workplace if that debate is informed by evidence, not by silly headlines and proxy advertising in media outlets.

The next chart shows the sum of all discrimination-related claims (i.e. age, disability, race, religion/belief, sex, sexual orientation and pregnancy detriment). From this, we can see that Britain is becoming a fairer country. Or something.

And just look at the number of unfair dismissal claims exploding!

But – whoa! – is this a ‘growth industry’? Someone tell GQ Littler! They could get a piece in The Times on the back of this.

Don’t ask me what’s going on with WTD claims. Ask Sean Jones, or someone like that.

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ET claim statistics: No alarms, no surprises

Three months ago, on this blog, I rashly suggested that Employment Tribunal (ET) claim/case numbers may at last have settled at a new, post-ET fees ‘normal’. And the latest set of quarterly statistics, published by the Ministry of Injustice this morning, does not contradict that assessment. At least, I don’t think it does. Contrary to what you may have read in The Times, far from ‘continuing to surge’, the number of single claims/cases fell by 3.2%, compared to the previous quarter, and in four of the last five quarters it has been somewhere between 9,000 and 9,800. Time will tell.

And, in some jurisdictions, the ‘new normal’ is a lot smaller than the ‘old normal’. Here’s one of the high volume jurisdictions, unfair dismissal, for example.

And here’s breach of contract. Not much evidence of that ‘continuing surge’ here.

Similarly, the latest set of Acas statistics on early conciliation (for Q3 of 2018/19), published by Acas a few weeks ago, tends to support my contention in March that, very broadly speaking, the number of ET single claims/cases has reverted to the level we might have expected it to be at, had ET fees and Acas early conciliation not been introduced in 2013 and 2014 respectively. Indeed, there still seems to be a mild upward trend in the sum of (single) EC conciliations and ET claims.

All very tedious. Hardly worth updating the above charts, really. No one pays much attention to the quarterly ET statistics, these days. Which may or may not explain why, earlier this week, two law firms were back to that old trick of Getting Our Firm’s Name in the Press By Issuing A Press Release With An Eye-catching But Totally Rubbish Story About ET Claim Numbers.

First up was Fox & Partners, with a story in Personnel Today based on their ‘analysis’ of the official ET statistics for the calendar years 2017 and 2018 – which have been publicly available since 14 March – and headlined “Sharp rise in disability discrimination claims at tribunals”. This states:

There were 6,550 disability discrimination claims at employment tribunals [in 2018], a 37% rise on the year before (4,770), according to Ministry of Justice figures.

The data represents a growth rate eight times faster than the increase in total claims over the same period.

According to employment law specialist Fox & Partners the explosion of disability discrimination cases is not only down to the simple fact that tribunal fees were abolished in 2017, but an increased willingness of employees to bring claims relating to mental health issues.

Fox & Partners said many claims of workplace disability discrimination related to the impact of high levels of stress and depression on an individual’s work.

And it is true that, according to the official statistics available since 14 March, in 2018 the number of disability discrimination ET claims increased by 37%. And it is true that the total number of claims – that is, the combined total of single claims and all the claims in multiple claimant cases – increased by only 4% (from 115,334 to 119,896). So, yes, in 2018 the number of disability discrimination claims grew eight times faster than the total number of claims.

However, as any fule kno, the total number of claims is pretty much worthless as a base measure, because it is so volatile (due to the varying influence of large multiple claimant cases). For example, there were 53,696 claims in the second quarter of 2018 (Q1 of 2018/19), but only 16,984 in the fourth quarter (Q3 of 2018/19). And, had Fox & Partners compared the financial years 2017/18 and 2018/19, instead of the calendar years 2017 and 2018, they would have had to report that the total number of claims increased by 12%. But that would not have helped stand up their ‘story’ of an “explosion” in the number of disability discrimination claims.

A much more meaningful base measure is the number of ET cases (that is, the combined total of single claims/cases and multiple claimant cases) – which increased by 73% in the calendar year 2018, compared to 2017. And, again, as any fule kno, that 73% increase was wholly due to the abolition of ET fees in July 2017.

So, the supposedly massive 37% increase in disability discrimination claims in 2018 was in fact only about half the overall increase in ET cases. In other words, it was well below the overall trend. As the following chart shows, the reality is that the number of disability discrimination claims is still some way short of its pre-fees level, and pretty much flatlined throughout 2018 (when, according to Fox & Partners, it was ‘exploding’).

It would have been more instructive for Fox & Partners (or the journalist at Personnel Today) to compare disability discrimination claims with other jurisdictions. Here, for example, is sexual orientation discrimination claims, the number of which rose by a humungous 69% in 2018, compared to 2017 – an “explosion” almost twice the size of that in disability discrimination claims. We await Fox & Partners’ theory for this one.

The number of unfair dismissal claims (see chart, above) increased by 39% in 2018. And here’s another chart showing the number of race discrimination claims, which rose by 34%  – that is, by much the same amount as disability discrimination claims. I could go on.

In short, there has not been a “sharp rise” – let alone an “explosion” – in the number of disability discrimination ET claims, other than as part of the across-the-board increase in ET claims/cases due to the abolition of ET fees in July 2017. And – as there has been no such ‘explosion’ – it cannot possibly be explained by any “increased willingness of employees to bring claims relating to mental health issues”. Well done, Fox & Partners.

I barely had time to tweet out my ire in relation to the Personnel Today article, when along came another from People Management, headlined “Experts ‘surprised’ by rise in pregnancy discrimination claims”. This states:

The number of employment tribunal (ET) claims involving allegations of pregnancy discrimination has risen by more than half in a year, raising questions over whether employers are keeping up with a change in culture around maternity rights.

In 2017/18, the number of pregnancy-related ET claims reached 1,357 – an increase of 56% on 2016/17, according to official figures.

This rate of growth was over twice as fast as the overall increase in the number of tribunal cases, which rose almost 20% over the same period, from 143,950 in 2016/17 to 172,730 in 2017/18.

Claire McCartney, senior policy adviser at the CIPD [sic], said that while the removal of tribunal fees may have accounted for some of the increase, there has also been a greater awareness of maternity and paternity rights, and an increased willingness to make claims.

Sound familiar? The very same worthless base measure (albeit for different time periods), and same ‘increased willingness to make claims’. People Management is the official journal of the CIPD, which you’d think would be above such shenanigans. But hang on, there’s a law firm with a theory!

Sophie Vanhegan, partner at [the law firm] GQ Littler, which compiled the figures [sic], said she was surprised to see a spike in pregnancy-related cases.

“I would generally say most sophisticated employers are very, very careful as to what they do when they’re dealing with pregnant employees in the first place,” she said. “There are obviously employers out there who have not been as rigorous in trying to ensure they deal with such employees lawfully in the past.”

Vanhegan attributed the increase in claims largely to the #MeToo movement, which had made women more aware of unacceptable behaviour, especially related to pregnancy. “Things that may have simply just been accepted in the past are now being seen as unacceptable and people are feeling more confident in being able to challenge them,” she said.

Vanhegan added there had been a “time lag” between the movement taking off and business culture changing. “We’re now two years since the #MeToo movement really exploded and I think that takes a little time to trickle down from the Hollywood-type arena in which it launched, into normal workplaces.”

Sure, in 2017/18, the number of pregnancy detriment ET claims increased by 56%, compared to 2016/17. But, thanks to the abolition of ET fees, the overall number of ET cases increased by 60%. So, what does this tell us, apart from the impact of fees? Answer: bog all.

We certainly can’t conclude, as Sophie Vanhegan of GQ Littler does, that the 56% increase in 2017/18 was “largely” due to the #MeToo movement – which did not even start, in the US, until half-way through 2017/18, so we couldn’t really expect to see much if any impact on ET claims in the UK that year in any case. Indeed, the end of 2017/18 – the period chosen by GQ Littler to evidence their ‘story’ – was only five months, not two years, after “the #MeToo movement really exploded [in Hollywood]”. But here’s Caroline Baker of GQ Littler doubling down in The Times, and on Twitter.

 

 

 

 

 

 

 

Furthermore, GQ Littler had access to three quarters worth of data after 2017/18 – why do they not cite that data? It’s been publicly available for months. Could it be that – as the following chart shows – that data does not support their contention that increased awareness of pregnancy discrimination is leading to an increase in claims? Sure, there was a notable increase in Q3 of 2018/19 (i.e. October to December 2018), which you might have expected GQ Little to cite in support of their ‘theory’. But the figure for Q4, which is among the set of statistics published this morning, suggests that increase was a blip, not part of a trend. [Indeed, see Update, below]

No, these ‘sharp rises’, ‘explosions and ‘increases that surprise experts’ are just the kind of garbage that PR people manufacture (partly by careful selection of a dodgy base line) to try and get journalists – who should know better, but invariably don’t – to pick up their press release. As already noted above, it’s an old trick, but journalists in the supposedly ‘specialist’ human resources press keep falling for it.

And – lo! – GQ Littler (a trading name of law firm GQ Employment Law LLP) has form! Whodathunkit? Yes, back in July 2014, GQ managed to get a whole article in The Times, no less, thanks to their claim that “while other kinds of tribunal claim are falling [due to the fees introduced in July 2013] … sex discrimination claims are now the biggest growth industry among workplace lawsuits because of uncapped compensation.” As I noted at the time: “WTF? Hidden amongst all [the] evident evisceration of ET claims [by ET fees], there is not just a growth industry, but several growth industries?” Dear reader, you will not be surprised when I tell you there were in fact no growth industries.

None of this is to say that there is not “an increased willingness of employees to bring [ET] claims relating to mental health issues” or “a greater awareness of maternity and paternity rights, and an increased willingness to make claims”. But there is absolutely no evidence to support either theory in the official ET statistics, however you cook them. Indeed, pregnancy detriment claims are not the only kind of ET claim to have fallen in Q4 of 2018/19 – so did disability discrimination claims. But no doubt Fox & Partners have a theory for that, to go alongside the one we can expect from GQ Littler and the CIPD.

Update [15 June]: Having spent two hours this morning working out how to change obscure settings on my Mac to enable me to access the monthly statistics as well as the quarterly ones – some time ago, the MoJ changed the operating system used to publish the data, and the new system is not user-friendly – I can now confirm that Q3 was indeed a blip, due to a megablip in October 2018.

There are only two credible explanations for such a megablip: (1) a data input error by HMCTS (and I’ve seen many over the years); or (2) one or more large-ish multiple claimant cases (which, in this jurisdiction, are rare). Either way, for the purposes of this debate, we can safely ignore October 2018.

From the monthly chart, we can also see that the peak in Q1 of 2018/19 was due to a smaller megablip in June 2018. Leave aside/iron out that month, as well as October 2018, and we can see that pregnancy discrimination claims have pretty much flatlined since autumn 2017, i.e. since soon after the abolition of ET fees in July 2017.

In short, there is absolutely no evidence in the official ET stats to support Claire McCartney of CIPD’s assertion of “an increased willingness to make [ET] claims”.

As for Sophie Vanhegan and Caroline Baker of GQ Littler’s assertion that this non-existent “big jump” in pregnancy discrimination ET claims is due to the #MeToo movement, that is what we policy analysts call – and I’m sorry to use a technical term – utter bollox.

Anyway, if you’re reading this, and your name is Sophie Vanhegan or Caroline Baker, or if you are Peter Cheese of CIPD, please do feel free to post a comment below.

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Brexit: a progress report to the EU27

Back in April, when the EU27 agreed to grant the UK another six and a bit months to decide what Brexit means, they wisely thought it prudent to use their regular Council meeting on 20-21 June to take a rain-check on how the UK is using the time that Donald Tusk famously urged it not to waste.

That EU Council meeting is the week after next. Yes, doesn’t time fly when you’re having fun allowing Nigel Farage to undermine your centuries-old democracy!

So, how might the conversation between the UK and the EU27 go?

EU27: Thank you for coming in. We really appreciate you taking the time to update us on how you are using the Article 50 extension agreed on 11 April to, er, sort out Brexit.

UK: Hey, no problemo! Everything is fine!

EU27: It is? Maybe you could expand a little?

UK: Of course! Well, it’s been a busy time. We held the European Parliament elections, just like you told us we had to. We Brits always play by the rules, ha ha!

EU27: Yes, we know. And, er, how did that go?

UK: Fabulous! We re-elected Nigel Farage. His Brexit Party got 32% of the vote! And we elected Ann Widdecombe! She’s so funny, you’re gonna love her! We’re thinking she might be good for the Equalities Committee. Is there a vacancy?

EU27: Er, we’ll come back to you on that. Anything else?

UK: You bet! We dumped our Prime Minister! She fucking cried! It was hilarious. You should have seen the memes on Twitter!

EU27: Yes, we saw them. But who is in charge now?

UK: Fuck knows! Could be Boris, could be Govey. Or, if you’re really lucky, Dominic ‘space cadet’ Raab – we know how much you love him! Though let’s be honest: Rory’s done some fantastic selfies in Kew Gardens and other places. He walked across Afghanistan! And he was in MI6! But what a great bunch. Four of them did PPE at Oxford! And Esther has an MA in Radio Journalism. So, everything’s gonna be fine. Just chill.

EU27: Okaaaay. Anything else you’d like to tell us about?

UK: Yeah, we had Donald Trump and his entire family to stay. Totally fuck-off banquet – took four days just to lay the table. Donald agrees with Nigel, who says we should leave the EU on 31 October, deal or no deal. And Donald loves Boris, who also says we should leave the EU on 31 October, deal or no deal. So, we’re all on the same page now.

EU27: Marvellous. But, er, has your Parliament made any progress with any Brexit-related legislation, or anything like that?

UK: You must be fucking joking! When would we have had the time for that? We had the Easter recess, straight after we agreed the Article 50 extension, and then we had the Whitsun recess. You do appreciate the importance of Whitsun, yes?

EU27: We do. But we are not trying to leave the complex legal framework of the EU after 45 years. You are.

UK: Well, talk to your car manufacturers, and make us an offer! We’ll discuss it with Nigel and, you know, get back to you. Anyway, before we finish, a heads up: we might have a general election soon. Or a second referendum. We just need to work out what to put on the ballot paper. Don’t suppose you’ve got any ideas for that?

EU27: We think that’s probably a matter for you. But, going back to the Conservative Party leadership contest, when will we know for sure who is the new prime minister?

UK: Depends how many more chaps want to throw their hat in the ring! Or chapesses, obviously. But we’re hoping to have it all done and dusted by the last week of July.

EU27: Okaaay. And what happens then?

UK: Summer recess, innit.

EU27: *sighs* Right, of course. Until when?

UK: We’re back on 2 September. But only for two weeks. Then it’s the party conference season recess. Obviously. Until 7 October.

EU27: So, if we’ve got this right, once you’ve finished electing a new prime minister, you’ll have just 15 parliamentary sitting days before we meet again at our Council meeting on 17-18 October?

UK: You know what? We haven’t even counted! Ha ha! But yes, 15 days sounds about right.

EU27: Fifteen days isn’t very long. You’ve had 122 sitting days since we signed off the Withdrawal Agreement in November, and … er, nothing has changed. Other than that you’ve dumped your prime minister, elected 29 Brexit Party MEPs, and had Donald Trump over to tell everyone how great Boris Johnson and Nigel Farage are.

UK: Whatever.

EU27: *weeps*

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Brexit: Remainers have a credibility problem

Earlier this week, while walking the stage of the Thames Path from Windsor to Marlow, my bestie Jane and I trudged through Maidenhead, the constituency of our soon-to-be-former Prime Minister. We didn’t see Theresa May, but we did agree that Maidenhead pretty well sums up what is wrong with this country.

Because you can’t walk through Maidenhead without being utterly appalled by the filthy wealth that its residents ostentatiously flaunt through their hotel-sized houses, their perfectly manicured gardens the size of a small park, and their often garishly-coloured BMWs. It is a different planet to Wigan, or Wakefield.

But in last week’s European Parliament election, Wigan, Wakefield and Maidenhead all voted for Nigel Farage’s Brexit Party. Which (a) is not actually a political party (it’s an undemocratic private company run for the benefit of Nigel Farage’s ego); and (b) wants the UK to leave the EU on 31 October, with or without a deal. And when it says ‘deal’, it doesn’t mean the Withdrawal Agreement, which – like it or not – is and will remain the only ‘deal’ on offer (apart from the politics of the matter, the Article 50 extension agreement of 11 April explicitly rules out any renegotiation or “re-opening” of the Withdrawal Agreement). Indeed, to the Brexit Party, both ‘remain’ and the Withdrawal Agreement represent a betrayal of what The People voted for in June 2016.

A ‘no deal’ exit from the EU would be an economic and social catastrophe for the residents of Wigan and Wakefield. Jobs would be lost, prices would rise, and public spending cuts caused by falling tax revenues would further tighten the austerity screw that led many of them to vote for Brexit in the first place. More and more people, already desperately poor by the obscene standards of Maidenhead, would find themselves sitting at home (or on the street), hungry and with little to do other than admire their blue passport (assuming, that is, the Home Office can get stocks of the damn things delivered from France).

Meanwhile, in Maidenhead, some residents might have to cut back on the number of gardeners they employ to constantly perfect the vista from their two-storey, glass-walled sitting room. But many are simply too well-cushioned to even notice. Maidenhead survived two world wars, and it would probably survive a third without even noticing it was happening.

So, two very different parts of the country voted for the same stupid thing – one part because they don’t realise just how fucking stupid the stupid thing would be for them and their community, and the other because they are too filthy rich and insulated from the lives of others less fortunate than them to give a toss. And a private company has secured (i) 29 highly paid seats and expense accounts in the European Parliament, and (ii) a lot of free publicity for the next phase of its business plan: a general election or second referendum on Brexit.

However, last week the Tories scored their lowest vote since 1832 and, as Polly Toynbee notes in the Guardian, “that abysmal result will see the Tories move heaven and earth not to call a self-immolating general election, which would let the Farage hordes on to their Westminster turf”. So, if the UK is not simply to crash out of the EU on 31 October, without a deal, and a general election isn’t going to happen because it would be politically “catastrophic” for the Tories, as Tory leadership contender Jeremy Hunt agrees, how else can we resolve the Brexit gridlock that has paralysed both Government and Parliament since November last year?

Toynbee concludes that “going back to the people” with a second referendum is “the only way to cauterise the gaping national split and confront once and for all the many dark issues that lurk beneath the nativist Brexit idea”. And, on Twitter, the shadow Brexit secretary, Keir Starmer, agrees that “it’s no use trying to hide from these very disappointing results … the only way to break the Brexit impasse is to go back to the public with a choice between a credible leave option and remain”.

Which neatly highlights the key problem facing those still advocating (or, like shadow chancellor John McDonnell, belatedly coming round to the idea of) a second referendum: there is no “credible leave option” to put up against ‘remain’ on the ballot paper. Or, to put it another way, there are only two possible ‘leave’ options – and neither of them is credible as the ‘leave’ option on any second referendum ballot paper.

Those two leave options are: (a) accept the Withdrawal Agreement, as it stands (because, as noted above and as Jean-Claude Juncker reminded everyone yesterday, it cannot be renegotiated, or even ‘tweaked’); and (b) leave the EU with no deal. I’ll take each in turn, but before I do so, it’s perhaps worth reminding ourselves of something rather important.

Which is that, for there to be a second referendum, the House of Commons would first have to pass a Second Referendum Bill setting out the wording of the ballot question (which would also be tested for fairness and approved by the Electoral Commission before the Bill completes its passage through the Commons). Which means there would have to be a stable majority among MPs for the wording of that question, including the ‘leave’ option. A lot of pro-second referendum remainers (including some very clever ones) appear to think that all they have to do is say “remain must be on the ballot paper”, and Leavers will helpfully provide the ‘leave’ option, then helpfully pass the necessary Bill, then (if the Bill passes) helpfully not bring a legal challenge to the ballot question in the courts. As I will now try to explain, that is naive to the point of delusion.

Let’s start with (a), the Withdrawal Agreement. Just about the only committed supporter of the Withdrawal Agreement in the House of Commons is Theresa May. Labour (bar a few pro-Brexit rebels), the Lib Dems, the SNP, Plaid Cymru and Caroline Lucas of the Greens have all voted against it repeatedly. The hard-Brexiteers in the ERG hate it, as do most of the eleven (so far) contenders for the Tory leadership. Indeed, it was the evident fact that MPs would again vote down the Withdrawal Agreement (in the form of the Withdrawal Agreement Bill) that forced Theresa May into such a precipitate and humiliating resignation.

Until that resignation, the strategy of pro-second referendum MPs was to try to knock down all the options other than a second referendum (Norway Plus etc.) in the hope that, at the very last minute, Theresa May would in desperation offer a second referendum in return for those pro-remain MPs voting with the Government in favour of ‘her’ deal (that is, the Withdrawal Agreement). But Theresa May is now only minding the shop, and it’s hard if not impossible to imagine any of the favourites in the Tory leadership race needing or being willing to offer such a Faustian bargain, especially with the newly invigorated Nigel Farage snapping at their heels, ready to scream “Betrayal!” at the slightest provocation. Indeed, it’s very hard to imagine any of them agreeing to a second referendum of any kind – as of course they would need to do.

Moreover, even if, by some miracle, pro-remain MPs – including Labour MPs rejoicing with a new, pro-second referendum policy of the kind imagined by Keir Starmer – managed to secure a majority to force prime minister Boris Johnson or Michael Gove to introduce a Second Referendum Bill with the Withdrawal Agreement as the ‘leave’ option on the ballot paper, and the EU27 then agreed to another Article 50 extension (as would be necessary), Nigel Farage would no doubt manufacture both a public outcry and a legal challenge to the ballot question. The voters would be invited to see the ballot question as a stitch-up, and – as it would be a stitch-up – they would most likely agree.

In short, if after the events of the past few weeks you still think that ‘accept the Withdrawal Agreement’ is a credible ‘leave’ option for a second referendum, there is a three-legged horse running at Kempton Park next week that you should probably put your life savings on. Because hey, it might win. And you really haven’t learnt anything from the last three years of Brexit mayhem.

As for (b), leave the EU with no deal, the problem is that just about all the the MPs who might vote to have a second referendum think (and have said publicly) that ‘no deal’ would be an economic and social catastrophe. So they would be inviting the public to vote for something that they would most likely then refuse to implement. Which is the kind of stupid thing that got us into this situation in the first place. If there is one lesson that MPs should have learnt from the fiasco of 2016, it is that you should only invite the public to vote on options that you are prepared – and know how – to implement.

And pro-remain MPs would be taking a massive gamble by accepting ‘no deal’ as the ‘leave’ option. Because the very act of voting to have ‘no deal’ on the ballot paper would blow a massive hole through their main campaign argument that ‘no deal’ would be a catastrophe. As Abi Wilkinson notes, it would be “totally rational for people to disbelieve they’re being given the option to vote for something catastrophic, because what kind of lunatic government/parliament would put that to [a] referendum?”

In short, and as noted previously on this blog, the question cannot be Put Back to The People without MPs first agreeing on what the question is. And there is simply no credible ‘leave’ option that it is possible to see MPs agreeing to include in the question.

But none of this will stop remainers calling for a second referendum. Both sides of the Brexit debate have been intellectual honesty-free zones for some time now, and I don’t see that changing any time soon. Unfortunately, though, by the time the Tory leadership election concludes in late July, unless the new prime minister’s first act is to order MPs to sit through some or all of the summer recess, there will only be 15 parliamentary sitting days left until the EU Council meeting on 17-18 October.

That’s 15 working days in which to at least get started on ‘sorting’ Brexit.

So, here’s a nice photo from my Thames Path walk on Monday, of the Olympic rowing course at Dorney (which, just like you and me, dear reader, is owned by Eton school).

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Brexit: the People’s Dilemma

So, MPs are busy piddling away another four days of the precious little time they have left to at least get started on ‘sorting’ Brexit before the EU27 take a rain-check on the Hallowe’en Article 50 extension at their Council meeting on 20-21 June. And one week tomorrow The People will troop to the polls in an election that was not supposed to happen, which the Tories are still doing their best to pretend isn’t happening, and which seems set to do absolutely nothing to help with that ‘sorting’ of Brexit – other than put the wind up Tory MPs. Perhaps that’s the whole point.

 

 

 

To the surprise of almost no one, the Labour Party has produced a constructively ambiguous manifesto from which it is very hard to tell whether the party wants to leave or remain in the EU, while the Brexit Party – led by the BBC’s star talent, Nigel Farage – is consistently polling more than the Tories and Labour combined without bothering to write a manifesto at all.

Indeed, from reading the party manifestos that have been published, you would struggle to learn very much at all about how their authors plan to use the time that, one month ago, Donald Tusk warned them not to waste in seeking to resolve the Brexit gridlock that has paralysed both Government and Parliament since November last year.

Labour’s manifesto, for example, grandly promises “we will end austerity, invest in communities, protect our public services, and ensure those with the broadest shoulders pay their fair share”. And there’s much more like that:

Labour would strengthen trade union rights, increase the minimum wage to a real living wage, fund proper enforcement, and give trade unions access to workplaces. We will ban the overseas-only advertising of jobs in the UK, and ensure every worker has the same basic rights from day one in the job.

They do realise this is an election to the European Parliament, don’t they?

But as to how Labour would resolve the issue that has kept the House of Commons gridlocked for six months and required not one but two extensions of the two-year Article 50 period that was supposed to end on 29 March, the manifesto says only that

Labour will continue to oppose the Government’s bad deal or a disastrous no deal. And if we can’t get agreement along the lines of our unicorn-packed alternative plan, or a general election, Labour backs the option of a public vote.

OK, it doesn’t say “unicorn-packed alternative plan”. I made that bit up. The alternative plan is “to seek a close and cooperative relationship with the European Union, including a new comprehensive customs union with a UK say, close single market alignment, guaranteed rights and standards, and the protection of the Good Friday peace agreement in Northern Ireland”. No unicorns there!

Keir Starmer, the shadow Brexit secretary, has added that any ‘deal’ or ‘agreement’ that emerges from the so far unproductive talks between Labour and the Government – now entering their seventh week – would, in his view, need to be subject to “a confirmatory [public] vote”. But neither he nor his party’s manifesto says when that vote might need to take place, or what (other) choices might be on the ballot paper. As Matthew d’Ancona noted in the Guardian on Monday:

Jeremy Corbyn launched Labour’s European election campaign last week with a speech that presented Brexit less as a historic challenge than a hugely irritating distraction from his grand plan for Britain.

Similarly, the Liberal Democrats’ ‘Bollocks to Brexit’ manifesto simply states: “We can stop Brexit through a People’s Vote”. Not a single word about when this People’s Vote would be held – and whether that would require yet another Article 50 extension, as it almost certainly would – or what choices The People would find on the ballot paper.

Ditto the Greens, who say in their manifesto that a vote for the Green Party on 23 May is a vote to “remain in the EU, through putting the question of Brexit back to the people and mobilising a positive, pro-European movement to win the People’s Vote for Remain”. Which is certainly more positive and pro-European than the party’s 2015 general election pledge to “prioritise local self-reliance rather than the EU’s unsustainable economics of free trade and growth”. However, there is no clue given as to what question, exactly, would be put back to The People, or when that might happen.

In a literally colourless manifesto brimming with pro-EU sentiment, Change UK say that “the only way” to “put the chaos and division of the past few years behind us” and “reconcile the country” is to “give the final say on whether to proceed with Brexit, as it is today, to the people”. Which does at least suggest that their ‘final say’ would be a choice between remaining in the EU, or accepting the Prime Minister’s blindfold Brexit deal.

The Women’s Equality Party’s manifesto is more colourful, in every sense, and is similarly packed with enthusiasm for the EU project (as well as good policies). But on resolving the Brexit crisis by October, it too says only that “We back a People’s Vote”. And, at the time of writing, both the SNP and Plaid Cymru have yet to publish a manifesto.

In short, the above manifestos tell The People virtually nothing about how Labour, the Tories, the Liberal Democrats, the Greens, Change UK or the Women’s Equality Party (WEP) would, given the chance, use the remaining time – just ten parliamentary sitting days, between the election next Thursday and the crucial EU Council meeting on 20-21 June – to at least make a start on ‘sorting’ Brexit. Or how they would complete that task before the next EU Council meeting on 17-18 October – the last before the expiry of the Article 50 extension on 31 October.

Sure, the Liberal Democrats, Greens, Change UK and WEP – and possibly Labour too – say they would hold a People’s Vote/second referendum/confirmatory public vote. But all gloss over the fact that holding such a referendum would now require a further Article 50 extension beyond 31 October – an extension to which the EU27 may or may not agree. And none are prepared to spell out exactly what choices (other than ‘Remain in the EU’) they would (or would not) put on the ballot paper. Which is far from being an academic question. It really, really matters.

Apart from anything else, there can only be such a referendum if MPs speedily pass the necessary primary legislation – and that in turn requires there to be a stable Commons majority on what choices to put on the ballot paper. In other words, the question can only be Put Back to The People once MPs (and the Electoral Commission) have managed to agree – in precise terms – what the question should be. And, for reasons set out in detail by Chris Cook on Tortoise some months ago, the ‘question of the question’ is “a problem that may be insuperable”. For, as noted previously on this blog, in the wise words of Andrew Duff of the European Policy Centre:

The Electoral Commission would insist that the conduct of the referendum was both free and fair. The House of Commons would need to agree on a [ballot] question that did not effectively disenfranchise that large part of the electorate opposing not only the deal on offer, but also the revocation of Brexit. Parliament could overrule the Electoral Commission, but not without litigation and public outcry.

Yet the pro-Remain parties (and Labour) evidently all agree that it would be irresponsible to put ‘leave with no deal’ on the ballot paper. Which really leaves only ‘Remain in the EU’ and the Prime Minister’s existing, blindfold Brexit deal as the ballot paper options. For, even if the talks between Labour and the Tories belatedly generate some kind of agreement, it won’t significantly alter the existing deal with the EU27: at the very most, it will amount to a few minor tweaks to the non-binding (so potentially meaningless) Political Declaration, and won’t change a single word of the Withdrawal Agreement. In any case, the Political Declaration already covers the full spectrum of possible future relationships, so there’s no need to tweak it.

In short, whatever agreement Labour and the Tories might reach, it would still be the same bungled, blindfold deal that Theresa May agreed with the EU27 back in November. But that deal has already been rejected three times by MPs, large numbers of Tory MPs are likely to reject (and vote against) any tweaking of it agreed with Labour, and Justine Greening, the pro-Remain and pro-second referendum former education secretary, rightly notes that “the Cabinet’s halfway-house fudged Brexit pleases no one. Failing to realise that and ducking tough decisions is just fuelling populism.”

Which is not something you want to do, really, if you are intent on holding a referendum campaign during which right wing populists like Nigel Farage would be handed shed loads of public money to further promote right wing populism. Indeed, as Phil Syrpis of Bristol University tweeted earlier this week, in a thread that is well-worth repeating in full:

A People’s Vote would make sense in a world in which we (the UK) had a settled path for Brexit, and MPs wanted to assess whether there was sufficient popular support for that Brexit. Brexiteers would argue that such a vote is not necessary, and that the Leave vote of 2016 provides the country with a sufficient mandate. Were they to lose that argument, they would then, in the People’s Vote [campaign], make a passionate case for Brexit.

It beggars belief that people do not seem to realise that we do not inhabit the world just described. Nigel Farage is making political capital, because he is characterising not just Remain, but also the Withdrawal Agreement, as a betrayal. He is not cheering on the Government in their tortuous effort to try to implement Brexit. He is not willing the cross-party talks to reach some sort of consensus. He is inviting people to demonstrate their scorn for all politicians.

Farage’s message resonates [with voters] because he is, in part, right. Politicians have, in the years since 2016, failed to deliver Brexit. But the failure of politicians is not quite that they have failed to deliver Brexit, but rather that they have failed even to define Brexit, to explain the different implications of different possible Brexits.

In this, Farage is as culpable as anyone: the Brexit Party has no manifesto! Farage offers no solutions. But it is easy for him to treat [the pro-Remain parties’] calls for a People’s Vote – between Remain and [accepting] the Withdrawal Agreement – with scorn. He can claim with some justification that [The People] did not vote for either of [those two] options.

Phil concludes – and, indeed, has been arguing with force for some time – that the pro-Remain parties would do better to call for revoke (i.e. for revocation of the Article 50 notification), thereby forcing Farage, Rees-Mogg and others to set out their version of Brexit – and then get challenged on how they plan to deliver it.

In short, by focusing on a People’s Vote/second referendum/confirmatory public vote – something they themselves have manifestly failed to deliver, and still cannot fully explain how and when might ever happen – the pro-Remain parties have been, and are, making it easy for the Brexiteers. Back in August last year, I suggested on this blog that:

If Brexit is blind, and MPs cannot see the future relationship, then the voters will be no better sighted, and any People’s Vote would simply be reduced to a no doubt divisive re-run of the in/out farce of June 2016. For Leavers it would be the easiest political campaign in history, to make up for not getting the easiest trade deal in history.

The results of next week’s election will provide an early indication of whether I was right to be so pessimistic [I think you mean ‘so defeatist and unhelpful’. Ed].

Anyway, here’s a nice photo of Whitesands, Pembrokeshire that I took last week when not thinking about Brexit at all.

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Brexit: The final countdown. Maybe.

So, the local elections are done and dusted, and we move onto the next of this year’s psephological treats: the European Parliament elections on 23 May.

Apparently, the trouncing of the pro-Brexit Tories and UKIP, a disappointing night for the disappointment that is the Labour Party, and a surge for the Remain- and People’s Vote-supporting Liberal Democrats and Greens tells us that the people just want the Tories and Labour to get on with sorting Brexit. Or something.

And maybe they do – one way or the other. But the hard truth is that MPs do not have very long to ‘sort’ Brexit.

Hallowe’en may have seemed a long way off when, on 11 April, MPs responded to Donald Tusk’s warning not to waste the Article 50 extension granted by the EU27 the previous day by literally laughing and cheering at Andrea Leadsom’s announcement that they could take the next week off. But by the time they returned to Westminster on 23 April, there were in fact only 73 parliamentary sitting (i.e. working) days until 31 October.

What’s more, MPs don’t have until 31 October to sort Brexit. At the very most, they have until the EU Council meeting on 17-18 October, at which the EU27 may or may not grant a further extension of Article 50. And, with MPs having piddled away seven sitting days since their Easter break, there are just 57 sitting days left until that Council meeting [but see Update, below].

To put that in perspective, there have been 91 sitting days since 14 November, when the Cabinet signed off the bungled, blindfold Brexit deal that Theresay May had just struck with the EU27. And, as you may have noticed, during that time, nothing has changed.

Worse still, when granting the six-month Article 50 extension to 31 October, the EU27 agreed that they would take a rain-check at their meeting on 20-21 June. And, as Andrew Duff of the European Policy Centre has noted, “if by then nothing has moved in London to break the [current] deadlock, the mood of the [EU27] chiefs will harden, Angela Merkel among them,” and the chances of a further Article 50 extension will lessen.

There are just 25 sitting days left until that Council meeting on 20-21 June. And, next week, MPs are set to piddle away another three days talking about wild animals in circuses (admittedly an important issue at any other time) and the 25th anniversary of the death of John Smith MP.

But maybe we’ll come back to earth within those 25 sitting days. Who can tell?

Update: On 9 May, Andrea Leadsom announced that MPs will get another recess, from 24  May to 4 June. As of 10 May, this reduces the number of parliamentary sitting days before the expiry of the Article 50 extension on 31 October to 59, and the number of sitting days before the EU Council meeting on 17-18 October to 50.

And it means there are now just 18 sitting days before the EU Council meeting on 20-21 June – eight before the Whitsun recess (and results of the European Parliament election on 23 May), and then another ten until the EU Council meeting.

Meanwhile, the Green Party and the Liberal Democrats are squabbling about who was first to call for a second referendum (evidence suggests it was the Greens, on 1 July 2016), the Tories still haven’t quite decided whether to campaign in the European Parliament election, and – as Chris Grey notes on his blog – “Brexit is stuck on the same endless loop of nonsense we have been going round for years”.

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Brexit: d’Hondt leave me this way

A couple of weeks ago, while walking the section of the Thames Path from Chertsey to Windsor, my bestie Jane and I found ourselves gazing towards Windsor Castle across the playing fields of Eton. The playing fields on which, according to the Duke of Wellington, the battle of Waterloo was won.

George Orwell, on the other hand – an Old Etonian himself – said that, while the battle of Waterloo may have been won on his alma mater‘s playing fields, the opening battles of all subsequent wars were lost there. To which we might plausibly add, “including those of the war for Brexit”.

For, ever since they confounded polling-based predictions to win their own Waterloo against the disorganised and poorly led forces of Remain in June 2016 – Wellington later described his last-gasp victory as “the nearest-run thing you ever saw in your life” – the supposedly brilliant Brexit Boys of Eton such as Boris Johnson and Jacob Rees-Mogg have managed to lose every single battle of Brexit, and may even have lost themselves the war.

Far from securing the “easiest trade deal in history”, over the past three years Johnson, Rees-Mogg and their less expensively-educated fellow Brexiteers David Davis, Steve Baker and Dominic Raab have been monstered by Michel Barnier and the EU27 at every turn. As I noted on this blog last August:

From the ‘staged approach’ to the negotiations, under which the UK’s disentanglement from the EU has had to be sorted before the future relationship can be discussed – remember ‘this will be the row of the summer’? – to the £35-39bn financial settlement – remember ‘go whistle’? – to the still not resolved NI border issue, Barnier has called all the shots. And, in doing so, he has simply carried out the mandate handed to him by the EU27 a few days after Theresa May stupidly triggered Article 50 before working out what she and her Cabinet want Brexit to mean.

[And] what this process will deliver – what it can only deliver – is what it was designed (by the EU27) to deliver: a blindfold Brexit deal, consisting of a Withdrawal Agreement covering the financial settlement (sorted), the transition period (sorted), citizens rights (almost sorted) and the NI border issue (not yet sorted), plus a quite possibly vague and definitely non-binding, so essentially meaningless, Political Declaration on the future relationship.

Barnier went on to seal that blindfold Brexit deal with Theresa May in November, of course, only for Johnson, Rees-Mogg, Davis, Baker and Raab to throw their toys out of the pram, before sulkily refusing to vote the deal through an increasingly dysfunctional House of Commons no less than three times. And that in turn led to the prized Exit Day slipping from 29 March to 22 May, then back to 12 April, and finally to 31 October (or sooner if Theresa May surprises everyone by conjuring up a way to get MPs to ratify her sorry deal, with the EU Council set to review the situation at its next formal meeting on 20-21 June).

Well played, chaps, well played. Three years on from the narrow vote to Leave the EU on 23 June 2016, and the country is about to hold elections to, er, the European Parliament. As the German foreign minister, Heiko Maas, noted caustically the week before last:

Just think about it: you say you want to leave the European Union, and then you hold a European Parliament election.

All of which has given more optimistic remainers – yes, they still exist – cause to think that the Eton Boys have farted away the entire Brexit war. On 14 April, Jon Lis of the think tank British Influence concluded that “the plain truth is that Britain will probably never leave the EU”, because the shenanigans of the previous few days had demonstrated that “Parliament will never support ‘no deal’, and the EU27 will never insist upon it”. And,

the longer this farce continues, the more people will decide that it is no longer worth the pain. [Theresa] May cannot deliver her deal. Parliament will continue in paralysis. All the while, the problem will remain a Brexit which we cannot implement without knee-capping our economy or our democratic oversight, or both. Now the threat of no-deal has vanished, we have time to consider if this is the path we really chose. It now seems likelier than ever that it is not.

Chapeau, Eton Boys!

Similarly, Brendan Donnelly of the Federal Trust concluded that “the trick of the European Elections in the UK could well have produced the treat of a People’s Vote before the end of 2019”, and on 11 April the never-short-of-an-expletive Ian Dunt noted that:

Time helps Remain. The more frequent these [Article 50] extensions, and the longer they are tabled for, the more the [2016] Referendum sinks into the past. Each time it happens, Brexit feels more like a failed project, stalled on the side of the road … The truth is a [second referendum/People’s Vote/confirmatory public vote] does not need to be held by October. That is the wrong way to look at it. It only needs to be agreed by then. That would provide the argument for a further extension request in which to actually hold it.

A ‘further extension request’. Oh my. What joy we have to look forward to.

There is little if any doubt that a further Article 50 extension, beyond 31 October, would be necessary to hold a second referendum/People’s Vote/confirmatory public vote. As Ian Dunt concedes, there is “simply not enough time” to hold one before then (the Institute for Government and UCL Constitution Unit both suggest it would take a minimum of 21 weeks to legislate and prepare for, and hold, such a referendum, and that timetable unrealistically assumes that the necessary legislation would sail unmolested through a suddenly united Parliament in a matter of days). But whether a further extension request would be agreed to by the EU27 is very much a moot point. For, as Wolfgang Munchau noted in the Financial Times last week:

Come October, the threat is not one of a veto by the French President, but of a shifting consensus. Heiko Maas, the German Foreign minister, said [in a recent FT interview] that he believed the October deadline was hard. This is becoming a wider consensus view in Germany. Macron is not isolated. He is winning the argument.

Similarly, in a must-read essay published last week, Andrew Duff of the European Policy Centre suggests that “the EU Council’s Brexit rain-check [on 20-21 June] is critical: if by then nothing has moved in London to break the deadlock, the mood of the chiefs will harden, Angela Merkel among them”.

Will there be any significant progress by 20 June? Well, with Donald Tusk’s warning not to waste the time provided by the extension to 31 October ringing in their ears, MPs first gave themselves a week off, and once back in Parliament have contrived to do practically nothing on Brexit for another two weeks. As Martin Kettle noted in the Guardian last week, “the talks between the Government and Labour [that started on 3 April] continue. But they are not going anywhere … There is an increasing air of unreality about the whole thing”. Indeed,

It is now increasingly obvious that the two parties are going through the motions, and that the talks are doomed. Labour has more time on its side than the Tories, because Corbyn is happy to see the Tories humiliated in the EU elections at the end of May. Neither of them wants to be blamed for failed talks, but nor is either of them strong or determined enough to suggest the kind of grand bargain – parliamentary support for soft Brexit in return for a confirmatory referendum, for instance – for which the circumstances cry out.

This means two things. Both must now be faced. The first is that, as things stand, Parliament’s efforts to take control of Brexit from the government have failed. In March, this sovereign parliament route seemed to offer a way forward. May’s deal was dead. Backbenchers came up with other cross-party ideas. The Speaker facilitated the process. Marches and petitions gave a feeling of momentum. When it came to the crunch, however, MPs knew what they did not want – no deal – but not what they did want. This parliament turns out to be no more able to pass a soft Brexit than to pass a harder one, like May’s.

The second conclusion is therefore that soft Brexit itself has also failed. Soft Brexit was the least worst Brexit option. To have succeeded, however, May needed to reach out much earlier, probably in 2016, and certainly after the 2017 election. It never happened. Now, last-minute backbench attempts to craft a soft Brexit, led by Nick Boles and Stephen Kinnock, have failed. Cabinet efforts have failed too. Finally the inter-party attempt has ploughed into the sand as well. So soft Brexit must now be added to no-deal Brexit and May’s Brexit on the political scrapheap of the past three years.

Which neatly encapsulates the even bigger problem faced by advocates of a second referendum/People’s Vote/confirmatory public vote – including the more than 100 Labour MPs who have written to the NEC ahead of its crucial, manifesto-setting meeting today – than the lack of certainty over a (necessary) further extension of Article 50 in October: there is simply no credible Leave option to pit against Remain on any ballot paper, as all the possible options are now ‘on the political scrapheap’. Yet, as Andrew Duff notes in the above-mentioned essay,

The Electoral Commission would insist that the conduct of the referendum was both free and fair. The House of Commons would need to agree on a [ballot] question that did not effectively disenfranchise that large part of the electorate opposing not only the deal on offer, but also the revocation of Brexit. Parliament could overrule the Electoral Commission, but not without litigation and public outcry.

Similarly, noting that “campaigners for a [second] referendum want a straight choice between the negotiated Withdrawal Agreement and the option of remaining in the EU”, Alan Renwick of the UCL Constitution Unit has warned that “many Brexiteers find the deal anathema”, and

They would see such a vote as a stitch-up, delegitimising the result. A three-option referendum could alternatively be held, with a no-deal option alongside the other two. So long as a preferential voting system were used, that would be tenable. But most MPs see a ‘no deal’ Brexit as catastrophic. If voters chose it, would those MPs really be willing to acquiesce in all the preparations that would be necessary? If they cannot contemplate doing that, they should not put it before voters.

Over the weekend, a number of journalists and others had fun attacking the interim leader of the Independent Group, Heidi Allen, merely for exploring, in an interview in The House magazine, the challenge of trying to find a credible, democratic solution to the People’s Vote dilemma: what option(s), other than Remain, to have on the ballot paper. All that Allen said, in fact, is that she has “some sympathy” with those who would want to see ‘no deal’ on the ballot paper, not that it should be on the ballot paper. And she’s absolutely right to feel that way. Because, as Andrew Duff warns in the above-mentioned essay:

One can be sure that another referendum promoted specifically to overturn the result of the first would deepen the divisions in the nation in terms of social class, generation and province. Those who claim that a ‘People’s Vote’ would magically heal the rift across the country and settle the issue of Britain’s European policy once and for all are likely to be proved badly wrong. [And] Brussels knows that unless the result of a second referendum were a massive majority on a high turnout for revocation, nothing very much would be settled at all.

Furthermore, Duff asks, “is it realistic to imagine that the Conservative and Labour parties, having just ratified the Withdrawal Agreement in Parliament, would then go out to the country campaigning to reject it? And what would be the impact on the British system of parliamentary government were the people to pitch themselves directly against a deal just done by parliament?” To my mind, it really isn’t realistic to imagine such a campaign, and I agree with Duff when he concludes:

It would seem to be folly of the highest order, having made the big mistake of holding one referendum, to compound the error by holding another.

So, where does that leave us? Duff argues that “the most likely scenario is continued political paralysis in the UK, leading to a demand for a further extension of Article 50 in October”, while in his latest Brexit blog post Chris Grey notes that the 31 October deadline is “really not that far away” and the signs are that the UK is going to use it to “keep going round the same nonsensical loops as before”:

there is little evidence that [Donald Tusk’s] advice is being heeded [and], worse still, there is no evidence of a will or a way to do so.

Or, as Ian Dunt put it on Twitter yesterday:

There’s really nothing going on is there? It’s all dead. We’re going to piddle away this time until October and go into crisis mode again.

Whatever, I no longer have to worry about this for the day job (because I no longer have a day job). So here’s that (rather lovely) view across the playing fields of Eton. Next up, Windsor to Marlow.

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