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A Democratic Backstop

by Frank Schnittger Thu Sep 19th, 2019 at 10:43:19 AM EST

You know you are in serious trouble when Stormont is being touted as the solution to your problem...

Stormont lock is fig leaf for likely DUP climbdown

An air of absurdity and exhaustion hangs over the idea that Stormont is the solution to Brexit. The northern institutions have collapsed, the British government is collapsing and London's sincerity in seeking a deal remains in question. These are shaky grounds on which to place the contention and complexity of Stormont input into the backstop, or some backstop-like arrangement. A new layer of accountability can be imagined and Northern Ireland is hardly a stranger to arcane government systems. But where would the energy come from to make this work, when only the DUP wants it and most nationalists would see Stormont administering Brexit as adding insult to injury?

It is not as if the DUP's need is fundamental - it merely wants a fig leaf to cover its retreat. When then British prime minister Theresa May unveiled the so-called Stormont lock in January this year, DUP deputy leader Nigel Dodds dismissed it as "cosmetic and meaningless".

May's proposals were stronger than anything now likely to be agreed.

Nobody has proposed that Stormont has a say, let alone a veto, over the operation of the single market. It would only be consulted on the application of new single-market regulations within Northern Ireland, which would be a territory outside the EU.

There would be implications for the Border if Northern Ireland withheld "consent" for new EU regulations, as British government sources describe it. In practice, this is most likely to be resolved by new checks across the Irish Sea to keep the Border open. Would unionists consent to that?

Some backstop supporters in Northern Ireland have gone further, implying a Stormont lock would mean the DUP regulating French farmers, although such claims must be due more to confusion and pot-stirring than cunning attempts to reframe the argument.

EU officials have taken a slightly different approach to the Irish Government over the past week, as revealed in statements and through media briefings. They have begun highlighting the withdrawal agreement's oversight mechanisms, to counter British government and DUP claims the backstop is undemocratic.

Those mechanisms would require a diagram to explain but as a rough guide there is a line of accountability leading back to Stormont via EU-UK committees and North-South bodies of the Belfast Agreement.

At first sight, EU officials appear to be arguing this makes further Stormont input unnecessary. On closer inspection, they are conceding the backstop needs democratic oversight and is not compromised in principle by Stormont input. As with Coveney's statement, this marks out a landing zone.

Basically it is now all coming down to what happens if the EU proposes a new regulation not matched by the UK and which requires customs controls at or near the UK/EU border to enforce.  If Stormont is given a veto on its application in N. Ireland, it is effectively deciding that customs controls will have to be set up at the EU/UK land border. Unionists would love that as it would drive the nationalist community mad.

Somehow that situation has to be reversed: Any divergence by the UK from EU regulations would create an automatic requirement for a border "down the Irish Sea" and Stormont would be granted a "consultative role" in how it would be implemented.

A final decision might rest with the North-South and East West bodies  of the Belfast (Good Friday) Agreement. These largely moribund bodies, systematically disrespected by the UK government, would suddenly become pivotal in the resolution of the backstop conundrum preventing the ratification of the Withdrawal Agreement.

Of course Sinn Fein would first have to be persuaded to agree to re-constituting the all but dead Stormont Assembly and Executive. Some outstanding contentious issues - such as an Irish Language Act - would have to resolved first. But there is no way Sinn Fein will agree to this if the Executive ends up administering Brexit in N. Ireland and even has the potential power to re-impose a border with the South.

But the DUP's plight is now so desperate, any fig leaf of "democratic control" will do. Expect the usual obfuscation and fog of complexity to hide what is really going on: N. Ireland will become an external territory of the EU subject to the rules of the Custom's Union and Single Market, while having a consultative role in how those rules will be implemented in N. Ireland. It can not be otherwise.

It is interesting to note that what we are talking about seems to be an immediate solution, not some far-off insurance policy which may never be triggered. Some enabling legislation will be required in Westminster (and perhaps in Dublin) to give effect to these new provisions. The regulation of trade was never a power devolved to N. Ireland. No doubt the SNP may seek something similar for Scotland.

It is also by no means a foregone conclusion that such a modified Withdrawal Agreement will be passed by the House of Commons, where recent shenanigans have hardened the opposition to anything Boris Johnson might propose. Labour will want to put any agreement to a second public vote, and some ERG members will still prefer a no deal Brexit. Boris might offer the olive branch of a return of the Tory party whip to the rebels if they vote for the agreement, but perhaps that rift has gone too far to be healed at this stage. Either way, his is now a minority government.

An A.50 extension would probably be required just to pass all the required legislation, and would Boris ask for it if an EU/UK Withdrawal agreement had been struck by his government? He would undoubtedly present it as just a technical delay caused by the House being too slow to get its act together - ignoring protests that proroguing parliament for 5 weeks and waiting until the last minute to present his proposals to the EU didn't exactly help.

Some will present this deal as Boris "selling the DUP down the river", but a little noticed consequence of the prorogation of Parliament is that it also marks the formal end of the "Confidence and Supply" agreement between the Conservatives and the DUP. That too will be helpful in securing the agreement of Sinn Fein to revive the Stormont Executive and Assembly. The DUP have nowhere else to go, now that they have lost the balance of power at Westminster.

But I wouldn't be counting any chickens just yet. "There's many a slip 'twixt cup and lip..."

UK seeks postponement of backstop discussion until December 2020
The UK has again demanded that talks on guaranteeing a soft Northern Ireland border be postponed until the end of the withdrawal transition period.

Attacking the EU for its lack of flexibility in the Border discussions, Brexit secretary Stephen Barclay elaborated the case against the backstop while not suggesting any alternative.

He insisted that that "the alternative to the backstop is not necessary until the end of the implementation period in December 2020 . . . why risk crystallising an undesirable result this November, when both sides can work together - until December 2020?"


Mr Barclay said there were four reasons [why the backstop has to go]: "Northern Ireland . . . would be governed by rules in which they have no say"; "It is inconsistent with the Belfast Agreement because the backstop has failed to achieve the consent of both communities"; "The backstop risks being permanent - even though article 50 legally requires it to be temporary"; and "the EU would control whether we can leave the backstop, making it harder to leave the backstop than leaving the EU itself."

Mr Barclay said the UK believes that the backstop can be replaced, though without requiring continued membership of either the customs union or the single market.

He warned that the UK would not be alone to suffer in the event of a no deal.

"For example if I take Ireland, two-thirds of Irish medicines come through Great Britain, 40 per cent of its exports go through Dover. Its supermarkets are supplied from distribution centres in the Midlands.

"Yet this is presented as solely a UK challenge - it is a mutual challenge, because if indeed there were 2½ days of delays at Calais, then the impact of that would not solely be felt within the UK, it would be felt in Ireland and indeed in businesses here in Spain. "

Oh dear. Here we go again. Let me spell it out:

  1. The backstop has already been agreed between the EU and UK governments. So who is it who is now showing "inflexibility"?

  2. The backstop issue has to be resolved now because the threat of a hard border has already caused huge instability in N. Ireland which needs to be resolved now

  3.  The EU does not wish to give the UK the leverage that avoiding a hard border would give it in future trade talks - i.e. full access to the Customs Union and Single Market without the costs of EU membership, adherence to the four Freedoms, and requirement to participate in and comply with EU negotiated trade deals.

  4. Northern Ireland is already governed by many rules in which it has no say, but in this case implementation of Customs Union and Single Market rules can be subject to consultations via the institutions established under the Good Friday Agreement.

  5. ALL of Brexit is inconsistent with the Good Friday Agreement as NONE of it has achieved the consent of both communities and yes, the Good Friday agreement is not time limited - you are stuck with it until you negotiate something better with the agreement of Ireland and the EU.

  6. And yes we know (yawn) that a no deal Brexit will effect Ireland and Irish imports and exports badly as well, and that is precisely what the backstop is designed to avoid. As the Taoiseach said, for Ireland, no Backstop IS no deal.

Either Mr. Barclay is exceedingly dim and has understood nothing of what has transpired in the last year, or he is just trolling us, which is generally not a good idea if you actually want to get a deal.

Index of Frank's Diaries
by Frank Schnittger (mail Frankschnittger at hot male dotty communists) on Thu Sep 19th, 2019 at 02:21:51 PM EST
There's no evidence the Boris government wants a deal.

They are obviously running out the clock until Oct 31 while trying to make the EU the bad guys in the eyes of the Brits.

She believed in nothing; only her skepticism kept her from being an atheist. -- Jean-Paul Sartre

by ATinNM on Thu Sep 19th, 2019 at 06:01:28 PM EST
[ Parent ]

Diversity is the key to economic and political evolution.
by Cat on Thu Sep 19th, 2019 at 07:07:31 PM EST
[ Parent ]
Dr Who 2013

We have the character of an island nation: independent, forthright, passionate in defence of our sovereignty.

We can no more change this British sensibility than we can drain the English Channel.

Diversity is the key to economic and political evolution.
by Cat on Mon Sep 23rd, 2019 at 07:49:12 PM EST
[ Parent ]
Office of the Parliamentary Counsel | Good Law
Law has a wider readership than ever before. The web has made it possible for people to find sources of law more easily. Once there, they tend to find the experience confusing. Reading legislation is not intuitive. One part of a statute often needs to be read alongside another; the last dated version is not the complete story; regulations have to be read alongside Acts of Parliament, and sometimes case law as well.
[T]he review also observed that there is no compelling incentive within government or Parliament to avoid generating further complexity. As in any complex and inter-dependent system, any change to the overall body of law will cause an exponential increase to its overall complexity. Good law requires us to ask how we can either reverse or manage this growth in complexity.

Diversity is the key to economic and political evolution.
by Cat on Thu Sep 19th, 2019 at 07:21:38 PM EST
I think that Good law leads to reduced fees for lawyers.

Seeing as the majority of MPs and members of the Lords have legal training, I think they all recognise the "advantages" of avoiding simplicity and transparency.

keep to the Fen Causeway

by Helen (lareinagal at yahoo dot co dot uk) on Thu Sep 19th, 2019 at 08:44:48 PM EST
[ Parent ]

WHAT advantages for WHOM do "complex" laws provide in a so-called democratic state such as the UK?

Here parliament has managed somehow a public service to promote a common adversarial relation to "advantages", hopefully to reform laws and practices delegated to MPs. Can't very well do that, if the team doesn't show up on the field with proverbial equipment to play the game.

in propria persona, or pro se representation: Is this mode of political expression forbidden by the state?

Diversity is the key to economic and political evolution.

by Cat on Thu Sep 19th, 2019 at 11:05:46 PM EST
[ Parent ]
podcast - "Defending Democracy" 19.09.2019, EN, no transcript
With the legality of prorogation being tested in the crucible of the Supreme Court, we welcome Good Law Project director and Remain legal vanguard JOLYON MAUGHAM QC to the studio to discuss exactly what's at stake. If the Government wins this one, could future administrations simply suspend Parliament whenever it likes, as if in some authoritarian Hokey-Cokey?

Diversity is the key to economic and political evolution.
by Cat on Fri Sep 20th, 2019 at 06:00:02 AM EST
[ Parent ]
One of the guests fills out parliament's impossible legislative schedule to implement "a deal" 18-31 Oct, after the EU Council summit and claims ...

Parliament hasn't even seen the withdrawal agreement

proving that Johnson had no intention to get "a deal".


They go on to debate Johnson's option to secure a "Norway deal"


Diversity is the key to economic and political evolution.

by Cat on Fri Sep 20th, 2019 at 06:24:15 AM EST
[ Parent ]
yes, we live in interesting times. On both sides of the atlantic, the constitutional settlement is shown to be quite inadequate when confronted with an Executive that refuses to adhere to the norms of governance.

keep to the Fen Causeway
by Helen (lareinagal at yahoo dot co dot uk) on Fri Sep 20th, 2019 at 04:11:40 PM EST
[ Parent ]
The barrier to comity is not The "Executive." (UK doesn't even have legislative entitlement for thatfor that, so don't front.)

It is the people, Pogo.

Diversity is the key to economic and political evolution.

by Cat on Fri Sep 20th, 2019 at 09:32:20 PM EST
[ Parent ]
Normally, one would expect the Supreme Court to rubberstamp the government's wishes. But:

There is a growing belief in the legal community that the court will find against the government when it hands down its momentous verdict on Johnson's decision to prorogue parliament.

The prospect of the court finding against the prime minister has left the UK heading towards a "constitutional eruption of volcanic proportions", according to another senior legal figure who asked not to be named. He said he also believed the case would go against the government.

Before the case, few thought the court would determine that Johnson's advice to the Queen to suspend parliament for five weeks would be found unlawful. But over the course of the three-day hearing opinion has dramatically shifted.


 the judges spent a large portion of their time exploring possible remedies - what they might determine must happen if they find against the prime minister. In other cases, judges seldom devote effort to discussing remedies if they are not seriously considering finding in favour of the complainant, legal sources say.

Bullshit and trolling may allow the executive to take a wrecking ball to "the norms of governance", but the SC seems to have been highly unimpressed by the government's feeble arguments in this case.

Boris may still brazen it out. Maybe not.

Things are going to slide, slide in all directions
Won't be nothing
Nothing you can measure anymore
L. Cohen

by john_evans (john(dot)evans(dot)et(at)gmail(dot)com) on Sun Sep 22nd, 2019 at 10:07:13 AM EST
[ Parent ]
My conclusion from reading the court coverage is that it is highly likely that the court will rule against the government. As for a constitutional volcanic eruption, that is what the UK has been having for the last month anyway.

"It is not necessary to have hope in order to persevere."
by ARGeezer (ARGeezer a in a circle eurotrib daught com) on Sun Sep 22nd, 2019 at 03:51:38 PM EST
[ Parent ]
I would be wary of reading this either way, and I think the Guardian is being recklessly optimistic.

This won't be decided on the merits, and in spite of appearances there are no reliable tells from the bench.

It will be decided in behind-the-scenes discussions which will never be made public. We can assume Crown representatives will have a say.

It turns out that Johnson - with current plus-one - was invited to stay with the Queen at Balmoral in April.

I don't find that an encouraging omen.

by ThatBritGuy (thatbritguy (at) googlemail.com) on Sun Sep 22nd, 2019 at 04:04:03 PM EST
[ Parent ]
I can't find a trace of an invitation in April, but in late July-August for early September. Here are a couple of press snips on that:

As per tradition, the monarch extends an invitation to the Prime Minister and their spouse each year to spend a few days each summer at Balmoral.

Prime Ministers and their partners traditionally visit the Queen at her Highlands estate in late summer, typically in the first week of September before the Commons returns after recess. It is believed Mr Johnson and his partner Carrie Symonds will be no different.

The big question for the press being Ms Symonds is not married to Mr Johnson, who is married to another woman.

But it seems all PMs are invited to Balmoral towards the end of the summer hols. Even Corbyn would be (really? Why not, at least he's married to Mrs Corbyn, even if she's his third wife...).

Things are going to slide, slide in all directions
Won't be nothing
Nothing you can measure anymore
L. Cohen

by john_evans (john(dot)evans(dot)et(at)gmail(dot)com) on Sun Sep 22nd, 2019 at 05:07:22 PM EST
[ Parent ]
Actually you're right. And it seems the visit didn't go as planned.

Chaos curtains Johnson's first visit to Queen

This is encouraging.

by ThatBritGuy (thatbritguy (at) googlemail.com) on Mon Sep 23rd, 2019 at 10:00:39 AM EST
[ Parent ]
There was already the problem (and Her Majesty takes these things seriously) of the married-man-accompanied-by-his-mistress, never before had such an illicit couple spent a night under Balmoral's lofty roof. (If they were allowed to spend just one night, I bet they were up in the attic with the draughts, the spiders, and the second-rate Scottish ghosts in kilts.)

Here we learn that the advice Boris gave the Queen on prorogation (immediately seconded by the Queen's loyal and trusty Rees-Mogg accompanied by two Tory stooges aka the Privy Council) was kicking up such a stink that a visit of several days was curtailed to less than one. A surprising departure from tradition, if we suppose the Queen was satisfied with the use that had been made of her assent.

Cameron has annoyed the Palace by letting on that he asked the Queen to intervene in the Scottish independence referendum. An interesting thing to note about it is that he says he had a lot of discussion with (Palace) Private Secretaries and so on. Makes one wonder if Boris fully and fairly discussed prorogation with the Queen in person, or at least what unpleasantness (distrust?) the episode has left in its wake.

One may not be amused.

Things are going to slide, slide in all directions
Won't be nothing, Nothing you can measure anymore
L. Cohen

by john_evans (john(dot)evans(dot)et(at)gmail(dot)com) on Mon Sep 23rd, 2019 at 02:24:08 PM EST
[ Parent ]
Last April, Boris was just another ex-Minister of the Crown, amongst many. It would have been "most irregular" to have invited him then, giving the appearance of bestowing Royal Favour upon one of many aspirants to High Office. Now had he been a hunting, gambling, drinking buddy of the Prince Philip up for a merry jaunt that might have been another matter, but AFAIK he doesn't even own a horse! What a Cad!

Index of Frank's Diaries
by Frank Schnittger (mail Frankschnittger at hot male dotty communists) on Mon Sep 23rd, 2019 at 10:50:35 AM EST
[ Parent ]
One is not at Balmoral until July.

In April, Scotland is still... One believes the expression is "brass monkeys".

Things are going to slide, slide in all directions
Won't be nothing, Nothing you can measure anymore
L. Cohen

by john_evans (john(dot)evans(dot)et(at)gmail(dot)com) on Mon Sep 23rd, 2019 at 02:29:44 PM EST
[ Parent ]
and when it's not brass monkeys, the midges make it all but uninhabitable.

Which gives me an idea for how to punish boris after the revolution...

keep to the Fen Causeway

by Helen (lareinagal at yahoo dot co dot uk) on Mon Sep 23rd, 2019 at 06:59:19 PM EST
[ Parent ]
Is it better to be Queen, titular leader of a smallish country, but who has all sorts of monarchical perks and wealth and news coverage and PR (e.g., the Downton Abbey movie, for crying out loud), or is it better to be the Queen, relic of a now-useless monarchy, gradually diminishing in importance under EU democracy?

If there is actually a volcano-level problem with the UK's constitution (what was it when there were actual riots in the streets of London, and murdered heirs, and dukes duking it out; asteroid-level???), maybe it is better to be Queen of the UK with a hope of regaining some limited executive power under a reworked constitution...

by asdf on Sun Sep 22nd, 2019 at 05:24:54 PM EST
[ Parent ]
There is nothing within the Treaties governing EU membership preventing the UK bestowing greater powers on HRM beyond the general requirement that the UK be a democracy. Indeed it can be argued that symbols of national uniqueness become more important, not less, in a situation where much sovereignty is pooled and many of the more boring, mundane, technical governmental decisions are taken at EU level.

Regulating food standards, for example, no matter how important and well done, is not the stuff that inspires patriotism, national fervour, and pride in and identification with the worthy organisations which perform such tasks. Insofar as many people need stuff to identify with, be it their favourite football club or their national armed services, identifying with Royalty is possibly less harmful than some other options, even if it does tend to amplify and perpetuate class divisions.

However that is for individual member states to decide. Subsidiarity and all that...

Index of Frank's Diaries

by Frank Schnittger (mail Frankschnittger at hot male dotty communists) on Mon Sep 23rd, 2019 at 11:03:25 AM EST
[ Parent ]
"This court has ... concluded that the prime minister's advice to Her Majesty [ to suspend parliament] was unlawful, void and of no effect. This means that the Order in Council to which it led was also unlawful, void and of no effect should be quashed.

"This means that when the royal commissioners walked into the House of Lords [to prorogue parliament] it was as if they walked in with a blank sheet of paper. The prorogation was also void and of no effect. Parliament has not been prorogued."

Hale continued: "It is for parliament, and in particular the Speaker and the Lord Speaker to decide what to do next. Unless there is some parliamentary rule of which we are unaware, they can take immediate steps to enable each house to meet as soon as possible. It is not clear to us that any step is needed from the prime minister, but if it is, the court is pleased that his counsel have told the court that he will take all necessary steps to comply with the terms of any declaration made by this court."

From the full text of the verdict h/t Guardian. (emphasis mine)

Not much Boris can do about this. Seeking a new prorogation is surely doomed to failure. Parliament will re-convene, possibly tomorrow.

There will be many calls for Boris's resignation. He probably won't listen. "If you want to get me out, vote no confidence, sweeties." That is of course the road to a general election and a likely new Tory majority (with Farage?).

Things are going to slide, slide in all directions
Won't be nothing, Nothing you can measure anymore
L. Cohen

by john_evans (john(dot)evans(dot)et(at)gmail(dot)com) on Tue Sep 24th, 2019 at 11:03:57 AM EST
[ Parent ]
by Cat on Tue Sep 24th, 2019 at 11:45:10 AM EST
[ Parent ]
Juncker to UK: Don't blame Brussels for post-Brexit border in Ireland - Politico.eu
The European Union can't be blamed for the construction of border posts between Northern Ireland and Ireland in the event of a no-deal Brexit, European Commission President Jean-Claude Juncker said Sunday.

"I'm not an architect of new border stations," said Juncker in a pre-recorded interview with Sky News' Sophy Ridge that aired Sunday. "The British have to tell us exactly the architectural nature of this border. I don't like a border."

He reiterated that the Good Friday Agreement, which brokered peace on the island after 30 years of violence, had to be "respected in all its parts," adding that "some members of the British parliament" appear to be "forgetting about history" in Ireland.

by Bernard on Mon Sep 23rd, 2019 at 08:04:43 PM EST
In Brexit talks, Belfast loyalists see risk of return to violence - Politico.eu
The trouble with the backstop is that it could symbolize a separation between Northern Ireland and the rest of the U.K. -- especially if avoiding a hard border on Ireland requires further regulatory or customs checks for goods traveling to and from the U.K.

Conceived as a technocratic solution, it was described as a threat to the union by Theresa May when she was prime minister and as amounting to "annexation" of Northern Ireland by the EU by Arlene Foster, leader of the region's hardline Democratic Unionist Party.

Polling indicates the backstop would be accepted by a majority in Northern Ireland, but as with Brexit, views on it are sharply split along sectarian lines, with a majority of unionists against it.

If the government accepts the backstop, it would amount to Britain "throwing us under a bus," said John.

by Bernard on Mon Sep 23rd, 2019 at 08:09:26 PM EST

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