What Corbyn should say in his next clarification on Article 50

No, I can’t work out Labour’s position on Brexit either.  To recap 24 hours of confusion:

1) Corbyn says Labour has a red line over access to the single market (this isn’t very clear, as North Korea has “access” to the single market, but let’s move on) and that Labour will block the triggering of Article 50 if it doesn’t get assurances

Watson says Labour will not block the triggering

Corbyn says we won’t block Article 50 (but doesn’t give a timescale on the not blocking) but will work for a “Brexit that works for Britain”

This is a mess, and I wonder how much it’s about Tom Watson going rogue.

However, I think there’s one way Corbyn can that reconcile his block/not block hokey cokey. This is what he might say be way of clarification, becqause ir also has the advantage of being a sensible strategy.

“It is becoming increasingly clear that the government’s attempts to open up trade and trade deals beyond the EU are a complete disaster – the PM will return from India with absolutely nothing to show for the air miles – and thus how important to the country’s financial and social stability that we have some kind of workable deal with the EU, even if this falls short of full tariff free membership.

This is our red line. The government’ incompetence has got into this mess, and we will give it a chance to get out of it, by finding some workable arrangement which keeps Britain financially afloat. If it cannot do this, we will block Article 50 and demand a general election, which we will seek to win on the basis that only Labour has the ability, including cordial relationships with EU partners, to deliver Brexit on terms which give us some kind of trading future, while respecting the result of the referendum.

This delivery will require a great deal more than a ‘deal’ on the single market, which even with a mew productive relationship with the EU is unlikely to be full membership. It will require a total reformulation of industrial strategy, as well as proper agreement on the best way forward for the devolved administrations, on both of which the current government has displayed utter incompetence, but which mu shadow team is already working hard to deliver, as an alternative to this useless, clueless government.”

I’ll be in my office if his press guys want to retain my services.

Immigration, Universal Basic Income & Labour’s intellectual failure

Down in London at the Labour Together conference on Labour’s future the other day, I was struck not so much by the usual tone of self-adulation that you tend to get when Labour MPs and wannabee MPs gather together in a big room to talk about how we really need to listen to the voters, but by one very particular example of the Labour hierarchy’s enduring failure to join the dots between political theory practice.

First, top ‘listen to the concerns of voters on immigration or else’ MP Rachel Reeves spoke about how we need to listen to voters on immigration. She gave her now usual anecdote about a visit to a factory in her constituency the day before the EU referendum, and found herself beset by workers intent on voting out because they felt immigration removed the security of their jobs.

If you don’t genuinely listen and respond to voters concerns about immigration, said Rachel, we are lost as a party.  So many on the left, she said (echoing earlier speakers), feel that to express concern about levels of immigration is to be racist.

Of course we need to “answer carefully”, she said, carefully, presumably for fear of being called a racist, but we need to answer these concerns; we must take seriously the deep-seated desire that working class people for security for themselves, their families and their communities

Then the subject of debate changed to Universal Basic Income (UBI)

UBI is a blind alley, said Rachel, echoing what Maurice Glasman had said earlier about the intrinsic value of work.   Beveridge and Bevan would be against UBI, she assured us, presumably because they believed in the principle of reciprocity.   It didn’t occur to Rachel, apparently, that Bevan and Beveridge didn’t set up the post-war welfare state in an late capitalist economy dominated by post-industrial, temporary and precarious work, which by its nature creates deep insecurity for working class people for themselves, their families and their communities

There’s a failure of intellect in here – one which is deep-rooted in the upper echelons of the party.  On the one hand, for Rachel et al Labour policy should be driven by a well-grounded desire for security.  On the other hand, insecurity is a good thing because it motivates people who go out to work.

This illogic is not just a temporary inability to think things through.  It is a deep-rooted failure because of what drives the two conflicting stances.

The first stance – that the need to deliver security is more important than political principles about freedom of movement – comes about because the working class know what’s good for them. And we should respect that.

The second stance – that support for UBI will foster laziness, and that insecurity is a price worth paying for the deeper political principle of reciprocity – comes about because the working class don’t know what’s good for them, but the theorists of reciprocity do.

If Labour really wants to move forward, it really does need to reach a point where principle can meet practice so that, in turn, we don’t have to “answer carefully” (i.e. sound false on the doorstep) but can just answer.

I have started to set out how we do this, through very concrete practices of democratic associationalism rooted in fundamental principles of equality of voice (and the necessary dialectic with mediating power) *.

This may not turn out to be a successful way forward, but at least I’m trying.  At the moment, behind the veneer of renewal, it seems to be that for many Labour MPs it’s triangulation as usual.

*In fact, by the far best intervention at the whole event was from Dr Adrian Pabst, who raised the need to change the way we engage with voters through the development of democratic associations and institutions.  Sadly, i’m not sure many in in the room really got him, and his question on it was answered with platitudes.  He must have wanted to kick train seats in confusion on the way back to Canterbury the way I wanted to kick train seats on the way back to Wigan, about a conference which professed to be a new start, but whose speakers in the end peddled the same old tired certainties that they said needed to be left behind

 

 

On the Northern Ireland Brexit question

Fintan O’Toole has a piece in the Guardian in which, after railing justifiably against how the British government ignored the concerns of Ireland over Brexit, he offers a glimmer of hope:

Before the war of words escalates and positions petrify into irreconcilability, Ireland should make an urgent and coherent effort to plead the virtues of equivocation. If nothing else, Ireland helping England out of a hole would be a historical irony worth savouring.

Here O’Toole is talking of the way in which the Good Friday Agreement was negotiated and worded in such a way as to allow both sides to interpret what they wanted from it.  The same, he suggests, could happen over Brexit, though he does not provide detail.

Let me try to provide a little bit of that detail.

A creative solution, were there political will on both sides (and this may still emerge as economies start to tank), might come through a combination of a) the Good Friday agreement Strand II (para 17) on agreement on the powers of the North/South ministerial council; and b) Clause 355 para 3 of the Treaty on the Functioning of the European Union (which by virtue of the currently extant European Communities Act 1972) is automatically part of UK law.

Stand II para 17 of the GF agreement commits to

The [North-South ministerial] Council to consider the European Union dimension of relevant matters, including the implementation of EU policies and programmes and proposals under consideration in the EU framework. Arrangements to be made to ensure that the views of the Council are taken into account and represented appropriately at relevant EU meetings

TFEU 335/3 in turn states:

The provisions of the [EU] Treaties shall apply to the European territories for whose external relations a Member State is responsible.

While the TFEU agreement is aimed at small colonial dependencies like Guadeloupe, it is not beyond conception that with all sides willing, the N/S ministerial council could arrange for these specific “external relations” to go over fully to the Republic, in way which allows Northern Ireland to remain effectively within the EU.

It is a step further to think that this might act as legal precedent for, let us say, Scotland to argue it should do the same, though in England the availability of the Sustainable Communities Act 200/2010 might be utilized to some effect by large local authority areas

The important point here, though, is that Fintan O’Toole is right to hold out hope for, and interest in, unorthodox solutions to the elite-imposed fix we find ourselves, if we can nudge their elite successors towards a route in which their own self-preservation as elites might soon interest them.

 

Staying in the EU: progress & technical update on the Sustainable Communities Act option

Inevitably, it has been hard to gain significant traction on the proposals to ‘community organize around the activation of the Sustainable Communities Act 2007 (amended 2010) in favour of powers to local authorities to take Brexit into their own hands.

Nevertheless, some progress is being made, and a plan for roll out and wider publicity of the possibilities is taking shape.

Monday will see 38 Degrees starting to get behind the initiative, if only tentatively, with a blog on its website.  In the longer term, if enough interest is aroused, this could lead to localized petitioning of local authorities, urging them to consider putting a proposal to central government under the provisions of the Sustainable Communities Act.

This approach will certainly do no harm and may lead to other branch-off activity, though my gut instinct is that the more effective approaches will be:

a) via the local referendum provisions set out in the Local Government Act 1972 (covered here); and

b) direct lobbying of the political leaderships of larger local authorities, though for this to be effective some initial (crowdfunded legal counsel may well be needed).*  In any event, I will be doing what I can at the upcoming Labour North West regional conference in a couple of weeks to put out material and glad hand a few people who might actually listen.  Support is welcome.

In the meantime, in the light of critical comments I have had online to date in various fora, I thought it might be useful to provide a bit of detail of why the Sustainable Communities Act is so different from other local government/localism legislation, and thus why it is the right vehicle to challenge the core ‘Brexit means Brexit’ assumption.

To do this, i need to be clear on the Sustainable Community Act process (and I speak as someone who has invoked it and gone through the process).  It goes like this:

1) A local authority submits to central government a proposal for additional devolved powers, in the interests of the well-being of the community it serves, and on the basis of widespread consultation (probably a local referendum).  In this case, the proposal would read something like:

That local authorities be accorded the power to continue to meet all conditions for full membership of the European Union, in the event that Article 50 is invoked.

The rationale for this, as a way of allowing central government to step away from the Brexit abyss, has been set out in my previous post.

2) It is likely that the proposal would be refused.  However, this is not the end of the story, because the Act then allows a local authority to send the proposal to the ‘selector’, which currently is the Local Government Association), asking that the proposal be re-submitted for consideration.

3) If the LGA approves re-submission, this is where section 6 of the Statutory Instrument to the Sustainable Communites Act kicks in:

After receiving a submission with reasons from the selector under regulation 5(4)(c) and (d) the Secretary of State must— (a) publish the submission of the selector with its reasons; (b) consult and try to reach agreement with the selector before making a decision as to whether or not to implement the submitted proposal, in whole or in part….(my italics)

This is important, because for the first time in English law, there is a legal requirement on the Secetary of State, on behalf of central government, to do more than simply say ‘yes’ or ‘no’.

To refuse to “try to seek agreement”, simply because the centre may not think Brexit is a matter for local government, would be unlawful, and open to legal challenge in the same way as the need for parliamentary assent for Article 50 trigger is being challenged.

Moreover, triggering of Article 50 while a Sustainable Communities Act proposal is still in play would also be challengeable, with the result that Article 50 might be delayed as a matter of compliance, allowing more local authorities to join a campaign to allow them to remain in the EU, until a point came where the government’s will to pursue Brexit, in the face of legitimately organised expressions of local will (and on the basis of much clearer information than in June 2016), started to erode.

* I don’t think legal counsel would provide any greater clarity than I do here, but it will create a sense of respectability, and go a long way to persuading local authorities to study their options carefully (options which do not actually cost anything to pursue other than legal officer time)

 

 

 

How to stay in the EU (part 2): seeking six brave people

My initial post on the potential for  use of the little-used  Sustainable Communities Act 2007 (SCA), to create an innovative legislative route away from what is now very clearly the impending catastrophe of Bexit, has now had a large number of views.

It is, at first sight, so left field that no-one in the media or legal professions has felt able to speak up about it, presumably for fear of of people querying their professionalism.   That’s the way the world works. Even so, it’s good to know there’s some early though quiet traction.

To recap briefly:

1) The idea is for local authorities, initially in strong Remain areas, to make proposals (or joint proposal) under the SCA for an amendment to the European Communities Act 1972 (ECA), to the effect that the relevant local authority areas would remain bound to the provisions of the ECA, even after Brexit.

2) The key provision of the ECA is that European Union treaties “shall be recognised and available in law, and be enforced, allowed and followed accordingly”, and this amendment to the ECA would therefore mean local areas would continue, under law, to be compliant with the EU treaties and therefore, at least arguably, able to remain in the EU, not least because such a step would be in keeping with Article 1 of Lisbon, under which “decisions are taken as openly as possible[ and as closely as possible to the citizen”

Now, it’s easier said than done to build up a head of steam on this.  This is not just because it is so left-field, but also because it wouldn’t be clear initially whether such a proposal would be seen a implementable (at least in such a way as to make Article 50 impossible to implement), or whether it would just come across as a way – via local authority consultation and local referendum processes (see also below) – to make clear to the government that people are now less in favour of Brexit, having become aware of the consequences.

But there is a way beyond this institutional inertia too.

It takes just six ordinary citizens who are brave enough invoke another obscure piece of legislation (though, like the SCA, one I’ve personally had a hand in invoking in different circumstances).

Take a bow, the Local Government Act 1972, Schedule 12 paragraph 18 (clauses 4&5), which provides that:

(4) A poll may be demanded before the conclusion of a parish meeting on any question arising at the meeting; but no poll shall be taken unless either the person presiding at the meeting consents or the poll is demanded by not less than ten, or one-third, of the local government electors present at the meeting, whichever is the less.

(5) A poll consequent on a parish meeting shall be a poll of those entitled to attend the meeting as local government electors, and shall be taken by ballot in accordance with rules made by the Secretary of State…..

Added to this is the provision under paragraph  3, clause 1 that, this such a local poll (aka. a local referendum) can be called by just six people:

 A parish meeting may be convened by—

(a) the chairman of the parish council, or

(b) any two parish councillors for the parish, or

(c) where there is no parish council, the chairman of the parish meeting or any person representing the parish on the district council, or

(d) any six local government electors for the parish.

Using this process, a small group of people could set up a town-wide referendum, which a local authority is legally bound to conduct ( and to publish the results), within 25 days. The question would be along the lines of:

Should this parish/town [in legal terms a parish and town council are the same] request the local authority area in which it sits to make a proposal under the Sustainable Communities Act to the government about exempting the local authority area from exit from the European Union by way of an amendment to the European Communities Act 1972?

Now, this would only really be a first step, but if done across enough parishes/town councils (a quirk of the legislation is it doesn’t work in non-parished area), it might create enough publicity for a local authority to pick up the idea and run with it, whether or not it one where a poll has been held.

In the end, this might be not much more than creative use of extant law for civic disobedience in the face of wanton government stupidity in getting us into this mess in the first place.

But it might, just might, be more than that.

How to stay in the EU, locally

It does occur to me that local authorities could use the provisions of the Sustainable Communities Act 2007 (2010 Amendment) and the 2012 Statutory Instrument to seek, quite legally, to opt out of Brexit.

It works like this. The Act allows local authorities (and indeed parish councils*) to put forward proposals to the Secretary of State for Communities & Local Government proposals for change – and importantly this can extend as far as changes to primary legislation – which provide that local authority with power to act locally for the sustainability of their communities.

It has not been widely used, but proposals which have come forward include proposals to localise control over nationally set benefit levels, for example.

But what if a local authority were to submit, on the basis of local consultation approving the submission, a proposal for an amendment to the European Communities Act 1972 to include a provision than in the event of general repeal, the repeal would not apply to the local authority area, and thus mean that technically that local authority would remain the European Union after Brexit?

More simply, a local authority could seek prior exemption from Article 50 trigger, though there would be a deep legal argument to follow about whether the 2007/201 Acts covers such a step.

Yes, I know it sounds mad, but I can’t see how a government could actually refuse to actually at least consider the case under the process set out in the 2012 regulations.

According to the FT, the Nissan crisis is already forcing ministers to consider sector specific port zones which might remain in the customs area, so this could be argued simply as a logical bottom up extension of same.

Who’s with me?

 

*It’s a nice thought that my old twitter bio about being from the Socialist Republic of Bickerstaffe might actually come truer than I thought, but I think we may be just a little too small to pull it off ourselves.

Dylan vs Jackson

Bob Dylan has won the Nobel Prize for Literature.

Fair enough as precedent for songwriter-as poet-recognition, but if there was a prize for the one song, it’d go to this postmodern masterpiece, Joe Jackson’s Steppin’ Out (1982).

Lyrically, it channels Adorno’s critique of modernity but with a knowing yearning for a Baudrillardian ‘lucidity pact’ with the capitalist devil, while the train track ‘monotony of life’ beat, drifting in and out of the song depending on how it is overlaid by the innocent piano jangles,captures perfectly that philosophical overlaying of search for contentment over search for perfection (early Kafka vs late Kafka).

The video tries quite hard too, though it’s not Nobel prize quality in itself.

Stepping out

Now
The mist across the window hides the lines
But nothing hides the colour of the lights that shine
Electricity so fine
Look and dry your eyes

We
So tired of all the darkness in our lives
With no more angry words to say can come alive
Get into a car and drive
To the other side

Me babe, steppin’ out
Into the night
Into the light
You babe, steppin’ out
Into the night
Into the light

We
Are young but getting old before our time
We’ll leave the T.V. and the radio behind
Don’t you wonder what we’ll find
Steppin’ out tonight?

You
Can dress in pink and blue just like a child
And in a yellow taxi turn to me and smile
We’ll be there in just a while
If you follow me