Brexit: Nothing (much) has changed!

So, another month has passed, and my rash prediction of the outcome of the UK’s tortuously bungled negotiations with the EU27 is just about still in the race. Last month on this blog, I concluded that

“while anything could still happen, I see no great reason to change the prediction I made in early August: the UK and EU27 will continue to edge towards a position on the Irish border issue that satisfies both sides, while allowing for (widely) differing interpretations that Theresa May can sell to different audiences, such as the DUP and ERG MPs. Then, at some point in early November, it will be announced that the extraordinary summit is back on, and over the weekend of 18/19 November the UK and EU27 will sign off on Blindfold Brexit. Remainer MPs will then fail to force a People’s Vote on the ‘deal’, and the UK will leave the EU, for an unknown future, on 29 March 2019.”

To the surprise of many, the first part of this prediction was belatedly achieved on 14 November, when the Prime Minister took more than five hours to secure the “collective” but seemingly far from enthusiastic consent of her “deeply divided Cabinet” to a draft Withdrawal Agreement and outline Political Declaration agreed in principle with the EU27. And, a few hours later, the two documents were published online.

Since then, a small forest has been sacrificed to produce hard copies of the 585-page draft Withdrawal Agreement, which covers the financial settlement, citizens’ rights and other aspects of the UK’s exit from the EU, but not the nature of the future relationship between the UK and the EU. In contrast, the “painfully thin” (© @HenryNewman) outline Political Declaration on that future relationship stretches to a mere six and a half pages and, including section headings, consists of just 2,357 words. Which is four words for each of the 595 days of negotiation since Article 50 was triggered in March 2017.

The section on the future ‘economic and trading partnership’ is just 1,026 words – shorter than many Daily Telegraph columns by the not-so-honourable member for Uxbridge and South Ruislip, Boris Johnson, and not much longer than this blog (862 words). And it promises a vague-to-the-point-of-meaningless future based on, for example, “comprehensive arrangements creating a free trade area combining deep regulatory and customs cooperation, underpinned by provisions ensuring a level playing field for open and fair competition”.

What does that even mean? Is it what The People voted for in June 2016? And is it what they’d vote for now – or, more accurately, six or seven months from now – should the People’s Vote campaign get its way? Will anyone put it on the side of a bus?

On Monday, the CBI reminded the Prime Minister that the UK’s “future prosperity depends on getting the Brexit deal right. We need frictionless trade [and] ambitious access for our world-beating services. Anything less than that, and jobs and investment could suffer.” Yet the word ‘frictionless’ does not appear once in the outline Political Declaration.

Even if the latest reports from Brussels prove correct, and the Political Declaration expands to “some 20 pages” before being signed off at the emergency EU summit that has been shifted from last weekend to this coming Sunday, there is no question that we are looking at a Blindfold Brexit.

So, that’s the first two parts of my August prediction ticked off. But will this bungled, blindfold Brexit survive the so-called Meaningful Vote by MPs, currently expected to be held on 10 December? Who knows? I certainly don’t. For sure, it wasn’t looking very likely late last week, when everyone from Jeremy Corbyn to Ken Clarke to Jacob Rees-Mogg to Chuka Umunna – though, strangely, not the Lib Dem MP Stephen Lloyd – were loudly telling anyone who’d listen that they will vote against May’s deal.

However, since then, Rees-Mogg and his coterie of ERG clowns (© @mrjamesob) appear to have blown their much-trumpeted coup against the Prime Minister. In the words of Robert Shrimsley in the Financial Times yesterday:

“Even when last week they came to the belated realisation that Mrs May was going to let them down — something she could not have made more obvious if she’d plastered Westminster with signs proclaiming “I’m going to let you down” — even then they could not properly organise the defenestration they had been promising to gullible journalists each weekend for the past six months.”

The 48 letters may yet appear. But the chances of Theresa May being toppled in the ensuing confidence vote now appear vanishingly small, and the Rees-Moggites may yet run out of hot air and fall into line for the Meaningful Vote. That way, they at least get to bank exit from the EU on 29 March 2019. As Robert Shrimsley further noted yesterday, “their record is an uninterrupted litany of cowardice, incompetence* and blame shifting. For all the bluster, they have blinked, bottled or botched it at every turn.” And today, ministers were reportedly claiming that “a lot of these [Tory] MPs saying they will vote against the deal just want a reason to vote for it”.

So, sadly, my sadly meagre savings are still on the final parts of my August prediction coming true. Then again, as I concluded last month, something else may happen.

* While we’re on the subject of incompetence, it would be wrong not to pay tribute to former Brexit secretary David Davis, who this week wrote what will surely go down in history as the stupidest sentence ever published on the Internet: “If we need to leave [the EU] with no deal and negotiate a free trade agreement during the transition period, so be it.” There are just not enough face palms.

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Brexit: Nothing has changed!

Another Monday, another oral ministerial statement to MPs on progress (or not) in the Brexit negotiations. Two weeks ago, following the somewhat less than triumphant informal EU summit in Salzburg, the Secretary of State for Exiting the EU, Dominic Raab, who hadn’t actually been in Austria, had the job of trying to assure MPs that the negotiations are going swimmingly, despite little if any progress having been made since June. Then, last Monday, it was the turn of the Prime Minister, as John Crace noted in the Guardian, to “come to the Commons to give a statement on what hadn’t happened”.

And yesterday, we got the Full House, as Raab confirmed to MPs, in response to an Urgent Question by Dominic Grieve, that the amendable motion for the so-called meaningful vote may not be so amendable after all, and the Prime Minister revealed, in yet another ministerial statement, that a whopping 95% of the Withdrawal Agreement is now settled. Which sounds impressive, until you remember that the Agreement was supposed to have been 100% settled by last week at the very latest. And that the remaining 5% – the backstop on the Irish border issue – is the tricky bit that’s been holding things up and which might yet bring the whole enterprise crashing down.

So, where does that leave us? Well, three months ago on this blog, I rashly suggested that completion of the Withdrawal Agreement [a mere 80% settled at that point] and cobbling together a basic, all-things-to-all-people Political Declaration [on the future economic and trading relationship] – that is, a Blindfold Brexit – is the only game in town. And, despite the continuing and deeply worrying failure to find agreement on the Irish border issue, I (just about) stand by that prediction.

This is not because Blindfold Brexit is the ‘good deal’ promised by ministers – far from it. You wouldn’t buy a house without knowing how many rooms it has, let alone its location. Yet the Government is about to try and sell Parliament, and the public, a Brexit ‘deal’ under which we won’t find out what kind of future relationship we will have with the EU until after we have left the EU on 29 March 2019 (and quite possibly not until some years after that).

What this means was spelled out recently by Sir Ivan Rogers, the UK’s former ambassador to the EU, in a speech given in Cambridge that is well worth reading in full:

“If we do stagger over the line with a Withdrawal Agreement, coupled with a pretty thin Political Declaration which all – or enough – can just about swallow, I will make three brief confident predictions about where we shall be in two years.

First, we shall be having precisely the same debate over sovereignty/control versus market access and as frictionless trade as is possible from without as we are now. The trade negotiations, properly starting quite late in 2019 – a year of transition in Brussels and Strasbourg, and with the need for the 27 to agree amongst themselves a complex, detailed negotiating mandate for a new negotiator – will be getting to multiple real crunch issues. The private sector will still be yearning for clarity on where we are going, and not getting much.

The UK political class will, finally, be starting to understand what trade deals are, how mind-numbingly legally complex and turgid their provisions are, and how negotiations work. And that what they view as the essential pluses to make a Canada-style FTA tolerable are precisely the big sticking points.  And that any one of the 27 Member States can come in with killer ‘must have’ demands to which you either find the answer or you lose much more time.

Second, it will be obvious by early autumn 2020 – long before, in reality – that the deal will not be ready by the year end, and that an extension is needed to crack the really tough issues. The EU, in no particular rush to get this done, as it sits rather comfortably with the UK in its status quo transition, with all the obligations of membership and none of the rights, will use the prospective cliff edge to force concessions, or to offer a thinner deal, more skewed to its interests, in the hope that the UK is desperate enough, pre-election, to get it done.

There will be some loud calls to jump to our freedom without a deal, because, over four years on from the referendum, remaining in purgatory transition is intolerable. There will be louder calls not to jump in the year running up to an election, when a breakthrough to an unprecedentedly good free trade deal is just around the corner…

Third, the Irish backstop enshrined in the Withdrawal [Agreement] will still be in place, and no other prospective agreement being yet in sight which obviates the need for it.

As the rebel Tory MP Anna Soubry (❤️ *sighs*) noted during the short debate that followed the PM’s rather uninformative statement yesterday, that is a model of Brexit that “nobody voted for” in June 2016. No one put ‘We’ll be negotiating Brexit, and our politicians will be talking about nothing else, for the next 10 years’ on the side of a big red bus. And, if they had, they would not have won the Referendum.

But Brexit will indeed be Blind, because there simply is not time for the UK and the EU27 to transform a Political Declaration that does not even exist in draft form into a meaningful document encompassing the complexity of the future relationship. The much simpler EU-Canada trade deal took five years, remember. In the words of Sir Simon Fraser, former Permanent Secretary of the Foreign Office, in his oral evidence to the Exiting the EU Committee of MP (see Q2729) on 10 October: “It is going to be a Blind Brexit … that is now pretty well inevitable”.

The only other available option is ‘no deal’. But, as Anand Menon of The UK in a Changing Europe and others have noted, in reality that is not an option, as the UK has simply not made the necessary preparations to avoid weeks or months of chaos. And, when I say ‘chaos’, I mean ‘no food in the shops and no medicines in the hospitals’.

None of this is helpful to those calling for a People’s Vote on the outcome of the negotiations. For the earliest possible date for the so-called meaningful vote by MPs – the first (and almost certainly last) opportunity for Remainer MPs to force a People’s Vote on an unwilling Government – is now 22 November, a few days after the extraordinary EU summit previously pencilled-in for the weekend of 18/19 November but which now may or may not take place. And it could be as late as early December, depending on how long the Government gives MPs to read and debate any ‘Withdrawal Agreement + Political Declaration’ package signed off at that extraordinary summit, should it be resurrected by a breakthrough in the currently deadlocked negotiations.

In its recent report on the mechanics of and timeline for a People’s Vote, the UCL Constitution Unit concluded that it would take a minimum of 22 weeks to pass the necessary primary legislation, complete testing of the ballot question by the Electoral Commission, and hold the 10-week campaign required by law. Which would take us not just beyond 29 March 2019, but smack into the European Parliament (EP) elections scheduled for late May 2019. And, as Agata Gostyńska-Jakubowska and Beth Oppenheim of the Centre for European Reform have noted, “there are practical and political reasons why the EU27 may be reluctant to bend over backwards [and extend the Article 50 period] to facilitate a fresh referendum” that clashes with those EP elections.

In short, while anything could still happen, I see no great reason to change the prediction I made in early August: the UK and EU27 will continue to edge towards a position on the Irish border issue that satisfies both sides, while allowing for (widely) differing interpretations that Theresa May can sell to different audiences, such as the DUP and ERG MPs. Then, at some point in early November, it will be announced that the extraordinary summit is back on, and over the weekend of 18/19 November the UK and EU27 will sign off on Blindfold Brexit. Remainer MPs will then fail to force a People’s Vote on the ‘deal’, and the UK will leave the EU, for an unknown future, on 29 March 2019.

Alternatively, something else may happen.

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Love is blind, and so is Brexit

“Love is blind, and lovers cannot see”, says Jessica, daughter of Shylock, in The Merchant of Venice. And, while we can only guess what Shakespeare would have made of the tragicomical farce that is Brexit, with its unappealing cast of posh boys, snake-oil merchants and sovereignty-mad aristocrats, he probably would have come up with a more dramatic final scene than that which we are going to be forced to sit through a few weeks from now. Because you can forget about Canada Minus, Norway Plus, the slightly less titillating Jersey Model, the fantastical Chequers Plan, or a shit-your-pants exciting ‘no deal’ Brexit – we are sleepwalking towards an anticlimactic Blind Brexit.

In recent weeks, with the point at which there is still anywhere near enough time to negotiate any of the above ‘final deals’ having long passed, lots of journalists and policy analysts, and a few MPs, have been working themselves into a frenzy over the likelihood – and likely cataclysmic consequences – of a ‘no deal’ outcome to the current negotiations with the EU27. And they have been ably assisted by clueless Ministers uttering not entirely reassuring assurances that “there will be adequate food” after the UK leaves the EU on 29 March 2019. One group of ‘leading social scientists’ has even put the chances of there being a ‘no deal’ Brexit at “around 50%”.

A ‘no deal’ Brexit would indeed be chaotic and extremely damaging, to both the UK and the EU27. Which, as Jonathan Lis of the think tank British Influence and others have pointed out, is why it is (almost certainly) not going to happen. I’ve included that ‘almost certainly’ because, with irrational actors like Liam Fox and Dominic Raab around, anything is possible, and there can be no absolute certainty about anything Brexity.

But the bottom line is that, whatever they might say in public, both sides are desperate to avoid a ‘no deal’ outcome to the current negotiations – the EU27 want their £35-39bn (the financial settlement agreed in March), and an orderly, treaty-based departure of the UK, while Theresa May does not want to go down in history as the PM who presided over food rations, fuel and medicines being delivered by the army, in peacetime. Oh, and a ‘no deal’ outcome would be very bad for Michel Barnier’s burning ambition to replace Jean-Claude Juncker as President of the EU Commission in 2019. Never underestimate the power of personal ambition.

On top of that desperation lies the fact that the currently stalled negotiations with the EU27 are less a negotiation than a bureaucratic process. More to the point, it is the EU’s bureaucratic process, and the UK negotiators (in the form of David Davis, when he could be bothered to turn up, and now the ventriloquist dummy Dominic Raab and his operator, Olly Robbins) have been monstered by Michel Barnier and his team at every turn.

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 actually want Brexit to mean.

As Tim Durrant of the Institute for Government and others have noted, what this process will deliver – what it can only deliver – is what it was designed (by the EU27) to deliver: a Blind Brexit, 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 (almost certainly) meaningless, Political Declaration on the future relationship.

Work on turning that Political Declaration into a legally-binding treaty (or ‘final deal’) will not start until after the UK has left the EU. But it is the content of this non-binding Political Declaration that the UK and EU27 should have been discussing during the second phase of the negotiations that opened after the joint report of last December.

Instead, the negotiations have been stuck on trying to sort out the 20% of the draft Withdrawal Agreement that remained to be agreed when the draft was published in March. So, as of 24 July, when Robbins and Raab appeared before the DExEU committee of MPs (see Q2409), there was not even a first draft of a Political Declaration. (And, since 26 July, the two negotiating teams have not met – they next meet on 16 and 17 August).

One week later, a senior EU official told the Guardian that the Political Declaration could be as little as four sides of paper, as “we have not time to thrash out the details”. Quite. And, on 2 August, Michel Barnier himself said “we will not know what the future relationship will bring by Autumn 2018”.

However, if both sides want to avoid ‘no deal’, which they do, then completion of the Withdrawal Agreement (80% done, remember) and cobbling together a basic, all-things-to-all-people Political Declaration is the only game in town. Indeed, that is pretty much what the Government itself says, in its latest white paper, Legislating for the Withdrawal Agreement between the UK and the EU, published on 24 July.

Sure, that means finding some form of compromise on the NI border issue but, as others have noted, the EU is a master at cooking up last-minute fudges on difficult issues that can, at a squeeze, be put off to another day. On 25 July, the Telegraph reported that “after 16 months of facing off over the most politically sensitive issue in the EU-UK divorce, creative solutions are now being considered by both sides”. And the NI border issue can be put off, at a squeeze, as strictly speaking it does not need to be resolved until the end of the transition period, in December 2020.

In short, by far the most likely outcome to the current impasse – much, much more likely than ‘no deal’ – is completion of the Withdrawal Agreement at the October EU Council meeting, and the UK’s departure from the EU on 29 March 2019, without anyone knowing what the future relationship between the UK and the EU27 will look like. Or, more accurately, with everyone from Boorish Johnson to your next-door neighbour having their own interpretation of what the future relationship will look like. Nice.

“But the Brexiteers will never swallow that”, I hear you shout. But they will, because their long-dreamed of prize will be just weeks away, and by then the only realistic alternative will be not ‘no deal’, but no Brexit. The UK Government and EU27 will have shaken hands on the deal, neither side will want to re-open the negotiations, and MPs will be presented with a fait accomplis: vote for the Withdrawal Agreement; vote against the Withdrawal Agreement, and crash out with ‘no deal’; or cancel Brexit and stay in the EU. And there is simply no majority in the Commons for either ‘no deal’ or ‘stay in the EU’. This was always going to be the case, and the bitterly fought for meaningful vote was never going to be meaningful.

This may or may not be why some Remainer MPs have put all their eggs in the People’s Vote basket. But 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 like Liam Fox it would be the easiest political campaign in history, to make up for not getting the easiest trade deal in history.

But for us Remainers it would be the opposite. What, exactly, would we campaign for, or against? As Anand Menon of UK in a Changing Europe said trenchantly late last month: “phrased as vaguely as the time constraints imply it must be, [the Political Declaration] will not provide a firm basis for informed debate. Instead, expect another campaign replete with competing claims about competing futures.”

Furthermore, as both the Institute for Government (see pp 24-25) and the UCL Constitution Unit have noted, holding a People’s Vote on the outcome of the negotiations would be “fraught with difficulties and added complexities”. Not the least of which would be that, given the time needed to pass the necessary primary legislation, make preparations for the ballot, and hold a meaningful campaign, an extension of the two-year Article 50 period beyond 29 March 2019 would be necessary. However, there are European Parliament elections due only two months later, on 23-26 May 2019, which would raise complex legal questions about the UK’s participation in those elections, were the extension of the UK’s membership of the EU to go beyond that point.

In any case, there will only be a People’s Vote if Theresa May decides it would be in her best interest for her to hold one. Which it would be, if she could be sure of winning it, since that would give her Withdrawal Agreement-based ‘deal’ legitimacy and quite possibly firm up her grip on the keys to Downing Street. But, if she’s not sure she can win it, then there (almost certainly) won’t be one. For the chances of at least 40 Tory MPs voting against her on the issue – as would be necessary, since there are at least 15 Labour MPs who would vote with the Government, regardless of their Party’s position – are negligible.

In short, the Brexit towards which we are sleepwalking while MPs holiday will be Blind, and neither they nor the voting public will see or know the future beyond.

[Update, 16 September: So, another five weeks have passed, and nothing has really changed, other than that it now looks as if the Withdrawal Agreement – and the meaninglessly vague Political Declaration, which Jill Rutter of the respected Institute for Government predicts will be “simply a thesaurus of synonyms for ‘deep’ and ‘special'” – will not be agreed by the UK and EU27 until an emergency EU Council meeting in mid-November, rather than at the scheduled meeting in October. But, as of 3 September, when Michel Barnier gave oral evidence to the Exiting the EU Committee of MPs in Brussels, there was still no draft of that Political Declaration (see Q2542).

As MPs will need to be given some time to read and analyse what will be a lengthy and complex document, delay in concluding the Withdrawal Agreement (and Political Declaration) until mid-November could result in the promised not-so-meaningful vote by MPs not taking place until early December. Which, as Sam Lowe of the Centre for European Reform (CER) notes, would suit Theresa May just fine, as “she needs Brexit to go down to the wire”, because “only then will MPs be scared enough to vote for her [Withdrawal Agreement-based] deal”. Then again, as Ian Dunt noted on Twitter this week, in response to media reports that Labour will vote against any Withdrawal Agreement-based deal, Theresa May will win the vote because “moderate Tory rebels will be cancelled out by Labour pro-Brexit rebels”, while Jacob Rees-Mogg and his gang of Brexiteers will “bank Brexit and then relaunch the fight [over the UK’s future relationship with the EU] from outside the EU”. Just as I said on 9 August, then.

So, figuratively speaking, my money’s still on a Blind Brexit in March next year. Anyone want to make an actual bet with me?

Anyway, as Theresa May says, it won’t be the end of the world. We survived the Black Death and two world wars, so we will (probably) survive Brexit. Life will go on. Sort of. It will just be even shittier than now. So, to cheer you up, here’s a nice photo by yours truly of Peter Randall-Page’s fab new sculpture “Touchstone”, at Oval tube station.]

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ET claims: the new normal? Maybe not yet.

“There is no such thing in life as normal”, sang my erstwhile hero Morrissey on his 2006 song ‘The youngest was the most loved’. But on this, as on so many things, Morrissey was wrong. Because, under the justice-denying fees regime introduced in 2013, the number of employment tribunal claims/cases became very normal.

Month after month, for more than four years, the number of new claims/cases hardly varied at all. And, following the abolition of fees last July, the number of new claims/cases appeared to have settled at a new normal, with little variation in claim/case numbers in the four months September to December 2017.

However, the latest set of quarterly statistics, published by the Ministry of Injustice this morning, suggests that we may not yet have reached the new normal. Here’s some charts to show what I mean. Make of them what you will.

Or, if you prefer your statistics quarterly:


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Withdrawal symptoms: Will the Government withdraw the EU (Withdrawal) Bill?

The other night, I had one of those strange but strangely realistic dreams that it is hard to shake off upon waking. I dreamt that I had been sentenced to five weeks in prison, for putting too many ticks on the (complex) ballot paper for the People’s Vote on the EU Withdrawal Agreement. The court had left it to me to arrange the serving of my prison sentence and, after waking in some distress, I had spent five minutes worrying about how to ask my boss for five weeks off work – before belatedly realising it was all just a dream.

After 18 months slaving away over the EU (Notification of Withdrawal) Act 2017 and the EU (Withdrawal) Bill, which recently completed its rather bumpy passage through the House of Lords, I often wish that Brexit and all its attendant strangeness was also just a dream. Sadly, it is all too real, even if most public and parliamentary debate on the subject leaves me wondering whether I should have eaten all that cheese just before bedtime. Apparently, it’s perfectly normal, having decided to resign your membership of a club, to expect the club to then agree to change its rules so that you can continue to enjoy all the benefits of membership. Educated people still take you seriously when you call that “a jobs-first Brexit”.

Yes, Brexit is a nightmare, and we have all fallen a long, long way down the rabbit hole. The normal rules do not apply, nothing is predictable, and everything is possible, even if Michel Barnier tells you a hundred times that it really, really isn’t. Forty years of law-making can be unpicked with a Great Repeal Bill, a trade deal with the EU27 can be negotiated in weeks, and the magic money tree will cover the cost of umpteen new regulatory agencies to do the jobs of all the EU agencies that no one thought to mention during the 2016 Referendum campaign.

So, earlier this month, hardly anyone batted an eyelid when the mainstream media began to report rumours that had been circulating in Westminster for weeks: that the Government might not bring the EU (Withdrawal) Bill, and its 15 inconvenient Lords amendments, back to the Commons until after the summer recess. There’s no rush, David Davis knows what he’s doing, everything will be fine.

Conversely, just a few weeks later, on 23 May, pretty much everyone peed their pants with excitement when the political editor of Sky News, Faisal Islam, tweeted that Tory MPs had been told that Ministers would be bringing the Bill, as well as the long-stalled Trade and Customs bills, back to the Commons in mid-June.

That may or may not happen – at Business Questions in the Commons the following day, all Andrea Leadsom, the Leader of the House, would say is that she expects all three Brexit-related bills to make “swift progress in a matter of weeks, not months”. For sure, nothing will happen before Monday 11 June.

However, what is clear is that the Government no longer needs the EU (Withdrawal) Bill. Because there is no power or provision in the Bill that ministers need to have before they can give themselves the same (or refined) powers and provisions through the promised (and necessary) Withdrawal Agreement & Implementation Bill (the WAI Bill), which – assuming things stay on the Government’s intended track – we can expect to see very soon after the final Withdrawal Agreement is signed off by the UK and the EU27 at the October Council meeting. And the WAI Bill will need to pass through Parliament fairly quickly, as by definition it needs to reach the Statute Book some time before Exit Day (which may or may not be 29 March 2019, of course).

Most of the EU (Withdrawal) Bill’s provisions would only come into play on or after Exit Day. And the key exception – clause 12’s powers for ministers to issue secondary legislation “appropriate for the purposes of implementing the withdrawal agreement if the Minister considers that such provision should be in force on or before exit day” – could simply go in the WAI Bill. Indeed, use of the powers in clause 12 is explicitly subject to “the prior enactment of a statute by Parliament approving the final terms of the withdrawal of the UK from the EU” – that is, the WAI Bill.

With a stand-still transition until December 2020, and the postponement of negotiations on the future relationship with the EU27 until after Exit Day, there is no longer any evident need for ministers to have such powers much before Exit Day. At the time of the EU (Withdrawal) Bill’s introduction, everyone assumed that Parliament would spend most of this year awash in hundreds of draft Statutory Instruments (draft secondary legislation) issued under the Bill’s sweeping Henry VIII powers, and making the necessary legal changes to implement the future relationship from Exit Day.

That was always fanciful, of course, given how many years it took to negotiate e.g. the EU-Canada free trade agreement (CETA), but pretty much everyone swallowed it. However, there will be no need to make such legal changes to implement the non-binding (and quite possibly somewhat vague) ‘political declaration’ on the future relationship that will accompany the Withdrawal Agreement. There are only four months left to negotiate and agree the content and final wording of the political declaration. And, if the UK negotiating team’s latest proposals, published on 24 May, are anything to go by, discussions on the declaration haven’t got much further than proposals for some subject headings. So it’s hard to see the text being terribly definitive by October.

And, of course, withdrawal of the EU (Withdrawal) Bill would remove all risk of losing Commons votes on the 15 inconvenient Lords amendments. [Addendum, 3 June: As Andrew Rawnsley says in today’s Observer, “looming parliamentary votes on Brexit could detonate the Tory party and put [May’s] premiership in jeopardy.”]

On the other hand, the fact that ministers no longer need the Bill does not mean that they will withdraw it – at least, not yet. As already noted, in the dream world of Brexit, everything is possible, however irrational, and nothing is predictable. Ministers may well decide, for purely political reasons, to bring the Bill back to the Commons for Ping Pong, if only to try to bounce the Cabinet brexiteers over the Customs Union issue, and/or exploit Labour’s own internal divisions on the Customs Union and EEA, and/or just keep MPs on both sides of the Brexit divide fully occupied. And, if ministers fail to reverse or water-down the Lords amendments, they can always just abandon the Bill later. Even if the Bill did reach the Statute Book, with or without the Lords amendments, the WAI Bill could include a simple clause repealing it in its entirety, just as clause 1 of the Bill repeals the European Community Act 1972.

But by then, I imagine I’ll be having Brexit-related nightmares every night.

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Penny pinching: enforcement (or not) of the minimum wage

“A penny saved is a penny earned.”

So said the 18th century clever clogs, Benjamin Franklin. Allegedly. Maybe.

OK, it seems he probably didn’t say it. But, if he did, we could justly consider Franklin to be an astonishingly far-sighted commentator on enforcement of the national minimum wage in 21st century Britain. Because, for some of the country’s biggest and most profitable employers, cutting corners on compliance with the national minimum wage is a business model that pays – penny upon penny upon penny.

Last week, the Department for Business, Energy and Industrial Strategy (BEIS) named & shamed another tranche of employers found by HMRC to have breached the minimum wage – the 14th round of naming & shaming since the scheme was rebooted in 2013. In this round, 179 employers were named for collectively owing £1,096,246 to 9,123 workers.

As ever, press and media attention focused on the handful of household names among the 179, including the restaurant chains Wagamama, which was found to owe £133,212 to 2,630 workers, and TGI Fridays, which owed £59,348 to 2,302 workers. Yet, as ever, most of the 179 were (relatively) small-fry: 146 (82%) owed less than £5,000, 110 owed less than £2,000, 105 had underpaid fewer than five workers, and 56 had underpaid only one worker. Just five (including Wagamama, TGI Fridays and Marriott Hotels) accounted for 34% of the arrears owed, and for 60% of the 9,123 underpaid workers. The median arrears owed was just £1,356, and the median number of underpaid workers was three.

But my eye was drawn to the statement by BEIS minister Andrew Griffiths:

There are no excuses for short-changing workers. This is an absolute red line for this government and employers who cross it will get caught – not only are they forced to pay back every penny but they are also fined up to 200% of [the] wages owed.

Because, as Mr Griffiths knows very well, that is simply not true. Indeed, the naughty little minister manages to squeeze not one but two pork pies into his statement of just 46 words. Which is pretty impressive, even for a government minister.

Firstly – as noted on this blog a few weeks ago – not “every penny” of the £1,096,246 of arrears ‘identified’ by HMRC in this round of naming & shaming will end up in the pockets of the workers from whom it was thieved. Because we know that, each and every year, a significant – but unknown – proportion of the arrears ‘identified’ by HMRC are not paid back. And BEIS is seemingly so unbothered by this troublesome fact that it can’t even say how money much does reach the workers in question, or how many workers receive all the unpaid wages thieved from them by their short-changing employer.

Secondly – as also noted, somewhat tediously, on this blog – the worst offenders, in terms of total arrears owed and workers underpaid, are not fined for some or even most of the wages owed. Because much of the arrears ‘identified’ by HMRC enforcement are in fact identified not by HMRC but by employers themselves, under a self-correction mechanism quietly introduced by BEIS and HMRC in 2015. And, not only are those employers not named and shamed by BEIS for those self-corrected arrears, but no financial penalties are imposed in respect those self-corrected arrears. Which means the employers in question have enjoyed an interest-free loan equal to those arrears, which they may or may not repay in full. And a lot of pennies saved is a lot of pennies earned.

So, in January, Mr Griffiths confirmed – in his Answer to a Parliamentary Question by Caroline Lucas MP – that, of the 1,049 employers named by BEIS in the August 2016, February 2017, August 2017 and December 2017 naming rounds, for collectively owing £5.2 million to 47,336 workers, 169 were instructed by HMRC to self-correct additional arrears, for which they were not named, totaling £4.1 million and owed to 71,766 workers. And, far from the 169 employers being ‘fined up to 200%’ of those self-corrected arrears, no financial penalties at all were imposed in relation to that £4.1 million. Which is a fuck of a lot of pennies saved. Or earned. Up to 820 million pennies, in fact.

Furthermore, in recent weeks, a series of Parliamentary Questions tabled by Jo Swinson MP have revealed that, of those 169 self-correcting employers:

In short, the 169 self-correcting employers include the very worst offenders.

All of which somewhat undermines the transparency and credibility of the naming & shaming scheme. Not to mention the credibility of Mr Griffiths.

So, it’s good to see a cross-party group of more than 40 MPs, led by Caroline Lucas and Jo Swinson, calling for a review of policy on both the naming & shaming of non-compliant employers and the self-correction of arrears. Why not ask your MP to add their name, if they haven’t already?

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ET claims: the new normal

So, with today’s publication by the Ministry of Injustice of the latest set of quarterly tribunal statistics, giving us five full months’ worth of ET claim/case statistics since the Supreme Court did the High Court’s job for it and ruled ET fees unlawful, we now know that just under 3,000 new cases per month is the new normal. In other words – as countless law firms will no doubt be informing their employer clients in highly excitable emails today – the new normal is just about 100% higher than the old normal.

Which looks and sounds pretty dire. Stop hiring, employers!!! Those new employees will only take you to the Tribunal.

Except that, the new normal is only 100% higher than the old normal because, thanks to ET fees, the old normal was a pretty small number. That’s the way statistics work. As we can see from the following chart, a 100% increase in a pretty small number does not compensate for a 65% fall from a much bigger number. (I know you’ll be struggling to follow this, if you’re a High Court or Court of Appeal judge, but … well, just book yourself on a training course).

Yes, the number of ET cases is up 100% since July 2017. But it is still quite a bit lower than it would be, had ET fees and mandatory Acas early conciliation not been introduced in July 2013 and May 2014 respectively. And most of the difference is explained by the (positive) impact of that Acas early conciliation. It will be interesting to see if this remains the case over the coming months.

So, let’s not get too over excited (I’m looking at you, Peninsula Business Services). On average, even after that 100% increase, each of the UK’s 1.3 million employers now faces an ET claim just once every 37 years. But then the UK’s managers are a bit rubbish.

And maybe what we should be concentrating on is the inability of the much denuded ET system to cope with a sudden 100% increase in the number of cases. Because, let’s face it, Tory ministers are more likely to reach for a new fees regime than they are to green light an increase in judicial and administrative resources.

Posted in Justice, Workers' rights | Tagged , , , | 2 Comments