In the interests of the EU should the EU council grant an extension to the UK?

Brexit looks to be currently at stalemate in the UK. As at the morning of Monday 21 October 2019, I have tried to lay out the perspective of the EU Council if it aims to follow, in spirit, Article 50 of the Treaty of the European Union. That is, aiming at leaving aside any political biases that the EU or myself may have on the issue.

After the Government pulled a meaningful vote on the revised political declaration on Saturday they will try again for a meaningful vote today. Following the inability to get the deal passed, on Saturday evening Prime Minister Boris Johnson sent the letter requesting an extention of the Article 50, as required by the the Benn Act. It was a photocopy and unsigned. This can be found on the government website page Letters from the UK to the EU Council: 19 October 2019. Boris Johnson also sent a signed letter to Donald Tusk to be found on the government website page Prime Minister’s letter to President Donald Tusk: 19 October 2019.

The Formal Letter is as follows

Dear Mr President,

The UK Parliament has passed the European Union (Withdrawal) (No. 2) Act 2019. Its provisions now require Her Majesty’s Government to seek an extension of the period provided under Article 50(3) of the Treaty on European Union, including as applied by Article 106a of the Euratom Treaty, currently due to expire at 11.00pm GMT on 31 October 2019, until 11.00pm GMT on 31 January 2020.

I am writing therefore to inform the European Council that the United Kingdom is seeking a further extension to the period provided under Article 50(3) of the Treaty on European Union, including as applied by Article 106a of the Euratom Treaty. The United Kingdom proposes that this period should end at 11.00pm GMT on 31 January 2020. If the parties are able to ratify before this date, the Government proposes that the period should be terminated early.

Yours sincerely,

Prime Minister of the United Kingdom of Great Britain and Northern Ireland

This letter provides no reason for extending the Article 50(3) period. The Prime Minister’s letter provides context for at least withholding the decision on the extension. With a deal between the EU and the UK not actually put to a vote by the UK parliament, there is clearly no reason for granting of an extension. Indeed, granting an extension before that deal is decided would likely ensure that the deal is voted down. Refusal to grant an extension would see the EU effectively ejecting a member state with no deal, something that neither the EU, nor a majority in the UK parliament desire.

The EU council are bound by Article 50. I covered legal analysis of Article 50 by the High Court of Justice in Northern Ireland last month. Like the judicial ruling I quoted Article 50 in full. The legal analysis was

Certain aspects of Article 50 did not fall to be construed in either Miller or Wightman. Bearing in mind that the exercise is one of construing a measure of EU law, I consider that those aspects of Article 50 not addressed in either Miller or Wightman yield the following construction:

(i) First, there is no concept, meaning or definition of “negotiate” supporting the view that the clause beginning “… the Union shall negotiate … ” denotes a duty and exercise unilateral in nature. It takes two to tango. The concept of negotiation must surely be, depending on its context, something bilateral or multilateral in nature. This discrete element of Article 50(2) would be emptied of meaning and rendered nugatory if it is not to be construed thus.
(ii) There is no legal context known to this court which dictates that negotiations must culminate in a legally binding agreement between the negotiating parties. There is nothing in the text of Article 50 which displaces this proposition. Nor is there any identifiable basis or rationale for implying any different or contrary
construction.
(iii) Article 50(2) clearly establishes an imperative, namely a negotiated and concluded withdrawal agreement, without purporting to mandate that this occur.
(iv) Article 50(3) expressly contemplates the possibility that the negotiations required by Article 50(2) will not culminate in a withdrawal agreement.
(v) The plain aim of the two year period specified in Article 50(3) is the promotion of stability and certainty in the EU.
(vi) The provision made in Article 50(3) for consensual extension of the basic two year period is plainly designed to further the overarching imperative of a negotiated and concluded withdrawal agreement.

Note that this analysis was upon matters raised by those wanting the judicial review, so may not be comprehensive for the current purposes.

Point (i) clearly states that two parties must negotiate. In the current circumstances who negotiates with the EU Council? The Benn Act coerces the Prime Minister to act against his clearly stated will. So you have parliament saying one thing and the recognised Prime Minister saying another. By “recognised” I mean by, parliament, the Queen as Head of State, and the EU Council,  in its negotiations with the UK last week. Parliament has had opportunities to constitutionally remove the Boris Johnson as Prime Minister. They twice failed to vote for a general election at the start of September. Also the leader of the opposition has had numerous opportunities to table a vote of no confidence and then try to form a coalition government. In my view, Article 51 of the Vienna Convention on the Law of Treaties (1969) may have some relevance.

Clearly the Prime Minister is not concluding a Treaty under the letter he was coerced into sending, just requesting an extension or a negotiating perios . However, it would be highly embarrassing for the EU Council to assent to an extension in the full knowledge that it against the will of the person who they have recognised as the UK’s representative.

Point (ii) states that reaching a withdrawal agreement might not be possible, whilst point (iii) states that it is a clear imperative. It is this context that the EU Council ought to withhold any decision on extension until it is clear that the agreed deal will not pass. Doing so would undermine their own efforts to reach a deal.

Point (iv) refers to Article 50(3) as having an imperative, namely a negotiated withdrawal agreement. Point (vi) makes clear this is the overarching imperative of any extension. If it is clear that any deal will not pass then there is no justification for extending the Article 50 period beyond the 31 October Point (v) is the plain aim of two year period for leaving – and by implication any extensions – is for the promotion of stability and certainty in the EU . Clearly the current situation is causing considerable instabilities and uncertainties is both the UK and the EU as a whole. Perhaps another incentive not to extend is the term office of Presidents Juncker and Tusk end on 31 October. Personally they will not want to leave the issue of Brexit still unresolved.

If parliament rejects the current deal, why should the EU Council extend? The possible position of the EU is to express clear exasperation with the UK, and make clear an extension will be contingent on the UK being in a position to make clear decisions by a stipulated date. That would imply the UK holding a general election at the earliest opportunity that will result in a clear position on Brexit. That is to leave, with or without a deal, or to revoke Article 50. It would mean that the EU has to agree with Nigel Farage, and it could see the resignation of Boris Johnson who whose main aim is to see Britain leave at the end of the month “do or die”. Whether he resigns or not, the Conservatives would likely drop in the opinion polls, which might see another hung parliament. The Labour Party would need to campaign on a clear position, as if they win on current policies, they would not comply. The alternative of a second referendum with only two options of “leave with the current deal” and “revoke Article 50” would not carry legitimacy unless there was some clause to allow for people who want neither option. For instance it could be that the result would only recognised if it by a clear majority of the ballot papers counted.

If parliament remains in its current state, it is clearly in the interests of the EU not to extend, to ensure that there is minimum continued disruption to the EU from Brexit. It is also clear that in preventing any possible disruption from a no-deal Brexit it will have the fullest cooperation from the current UK Executive.

Kevin Marshall

An EU Withdrawal Parliament can agree on?

More than 24 hours overdue there is a political resolution to Brexit that will form the basis of a withdrawal agreement. It is enthusiastically endorsed by both Boris Johnson and Jean-Claude Juncker. Further, the EU appears to be ruling out any extension of the withdrawal period beyond 31st October. Therefore, the Benn Surrender Act, forcing to the Prime Minister to request an extension in the event of parliament failing to pass the agreement, will be meaningless. It takes two tango, and the EU looks to be tired of the dancing.

From a quick read of the document I have extracted some points, and made notes of my opinions. The copy was obtained from Guido Fawkes. I have uploaded the document here. I would commend people to read it themselves before passing judgement. My overall view is that

  • Like the Church of England, the declaration has a very British feel, being short on detail and a lot of fudge.
  • There are some points that are troubling, such as on fisheries.
  • It ratchets into UK law common elements of EU and British politics. Whilst many parts are laudable (e.g. co-operation on security issues and maintenance of human rights) others are reflect current pervasive ideological fads. A liberal democracy should be able to separate the two elements, but in this age of mass and baseless opinions it is the latter that is more important than the former. Traditionally in Britain, it has been common principles that have upheld liberal democratic principles
  • It includes good principles of “a level playing field” and understanding other points of view. Such principles are clearly out of fashion in the current politics of the remainers and the hard left.
  • There is no trace of being bound by EU Law beyond 2020, nor of having to support EU projects financially for an indefinite period.
  • As I state at the foot of the article, the substance might be irrelevent to whether this declaration is accepted by pariament.

On with the extracts.

II. GOODS – A. Objectives and principles includes

20. These arrangements will take account of the fact that following the United Kingdom’s withdrawal from the Union, the Parties will form separate markets and distinct legal orders. Moving goods across borders can pose risks to the integrity and proper functioning of these markets, which are managed through customs procedures and checks.

This must include some sort of border checks either between Ireland and Northern Ireland, or between Great Britain and Northern Ireland. Although the backstop has been removed, we have classic diplomatic fudge to replace it. It is a no-go for the DUP.

21. However, with a view to facilitating the movement of goods across borders, the Parties envisage comprehensive arrangements that will create a free trade area, combining deep regulatory and customs cooperation, underpinned by provisions ensuring a level playing field for open and fair competition, as set out in Section XIV of this Part.

B. Tariffs

22. The economic partnership should through a Free Trade Agreement ensure no tariffs, fees, charges or quantitative restrictions across all sectors with appropriate and modern accompanying rules of origin, and with ambitious customs arrangements that are in line with the Parties’ objectives and principles above.

It is proposed that there will a common free trade area. This is effectively a customs union in all but name. By implication, external tariffs and regulations will have to be the same, retaining discriminatory trading with the outside world, such as in beef and sugar. Note that it is not “free trade” in true sense of the term, but trading abiding by the same detailed regulations across the trading area. This will likely preclude Britain achieving trade agreements with other countries that are not compliant with those of the EU.

25. Such facilitative arrangements and technologies will also be considered in alternative arrangements for ensuring the absence of a hard border on the island of Ireland.

There is no current solution to the Northern Ireland border question. A hard border between Ireland and Northern Ireland will not be ruled out in the future if talks break down.

III. SERVICES AND INVESTMENT

A. Objectives and principles

27. The Parties should conclude ambitious, comprehensive and balanced arrangements on trade in services and investment in services and non-services sectors, respecting each Party’s right to regulate. The Parties should aim to deliver a level of liberalisation in trade in services well beyond the Parties’ World Trade Organization (WTO) commitments and building on recent Union Free Trade Agreements (FTAs).

This is effectively the aim of the customs union. Why is Jeremy Corbyn, as a hard-left socialist, so determined to stay in a customs union that supports liberalization of the bastions of capitalism? That is banks and stock markets. This withdrawal agreement will tie the hands of a future Labour Government just as much as being a full member of the EU.

VI. CAPITAL MOVEMENTS AND PAYMENTS

41. The Parties should include provisions to enable free movement of capital and payments related to transactions liberalised under the economic partnership, subject to relevant exceptions.

In the same vein, a future Corbynista Government will be prevented from stopping capital flight.

48. Noting that the United Kingdom has decided that the principle of free movement of persons between the Union and the United Kingdom will no longer apply, the Parties should establish mobility arrangements, as set out below.

The ending of free movement was always going to apply to any withdrawal agreement.

XII. FISHING OPPORTUNITIES

71.

72.

73. Within the context of the overall economic partnership the Parties should establish a new fisheries agreement on, inter alia, access to waters and quota shares.

74. The Parties will use their best endeavours to conclude and ratify their new fisheries agreement by 1 July 2020 in order for it to be in place in time to be used for determining fishing opportunities for the first year after the transition period.

The agreement fails to guarantee that the UK will take back control of its own waters. The EU is unlikely to allow the UK to have a policy of “British waters for British vessels”.

XIII. GLOBAL COOPERATION

75. The Parties recognise the importance of global cooperation to address issues of shared economic, environmental and social interest. As such, while preserving their decision-making autonomy, the Parties should cooperate in international fora, such as the G7 and the G20, where it is in their mutual interest, including in the areas of:

a) climate change;

b) sustainable development;

c) cross-border pollution;

d) public health and consumer protection;

e) financial stability; and

f) the fight against trade protectionism.

76. The future relationship should reaffirm the Parties’ commitments to international agreements to tackle climate change, including those which implement the United Nations Framework Conventions on Climate Change, such as the Paris Agreement.

If the British people ever saw sense and wanted to come out of the useless and costly Paris Agreement, the climate consensus could prevent this happening through the courts.

XIV. LEVEL PLAYING FIELD FOR OPEN AND FAIR COMPETITION

77. Given the Union and the United Kingdom’s geographic proximity and economic interdependence, the future relationship must ensure open and fair competition, encompassing robust commitments to ensure a level playing field. The precise nature of commitments should be commensurate with the scope and depth of the future relationship and the economic connectedness of the Parties. These commitments should prevent distortions of trade and unfair competitive advantages.

This concept is peculiarly British, especially associated with Eton. Adhering to this perspective of a single set of rules for everyone is the likely reason that most of the major sports in the world, including football, tennis, golf, cricket and rugby are of British origin. However, it is contradiction with current discrimination on the basis acceptance of core beliefs. One is in Post Normal Science (especially on climate change) where lack of acceptance of a politicized mantra such as “climate change is happening, is serious, human caused and solvable” puts one beyond the pale of rational argument. Another is in politics, where failure to accept consensus intellectual beliefs (such as membership of the EU, or the need to abolish capitalism) is sufficient to charge that person with being deluded, or an outright liar. For this reason alone, those on the left, or the more rabid remainers, would be hypocritical to support a deal.

II. GOVERNANCE

B. Management, administration and supervision

126. The Parties should establish a Joint Committee responsible for managing and supervising the implementation and operation of the future relationship, facilitating the resolution of disputes as set out below, and making recommendations concerning its evolution.

127. The Joint Committee should comprise the Parties’ representatives at an appropriate level, establish its own rules of procedures, reach decisions by mutual consent, and meet as often as required to fulfil its tasks. As necessary, it could establish specialised sub-committees to assist it in the performance of its tasks.

This part I quite like. It is the two parties coming together as equals to work through and resolve differences.

C. Interpretation

128. In full respect of the autonomy of the Parties’ legal orders, the Union and the United Kingdom will seek to ensure the consistent interpretation and application of the future relationship.

There may be a lack of suitable candidates from the UK for the Joint Committee, as this type of interpretation requires that one makes the effort to understand opposing perspectives. Certainly, many of the remainer MPs will be disqualified from applying when they lose their current jobs in the upcoming general election.

D. Dispute settlement includes:-

131. The Parties indicate that should a dispute raise a question of interpretation of provisions or concepts of Union law, which may also be indicated by either Party, the arbitration panel should refer the question to the Court of Justice of the European Union (CJEU) as the sole arbiter of Union law, for a binding ruling as regards the interpretation of Union law. Conversely, there should be no reference to the CJEU where a dispute does not raise such a question.

A good point insofar as UK law is not bound by the CJEU. It is right and proper that matters of interpretation of Union law should be referred to this body.

139. This programme will be designed to deliver the Parties’ shared intention to conclude agreements giving effect to the future relationship by the end of 2020 as set out in paragraph 135. The European Commission is ready to propose applying on a provisional basis relevant aspects of the future relationship, in line with the applicable legal frameworks and existing practice.

There is no open-ended process, where the UK will be at the mercy at the EU legislation, as in the previous withdrawal agreement.

What will happen on Parliament’s Super-Saturday?

However, my comments are largely irrelevant, and so is the detail. Parliament will try any means to stop Brexit. On the other hand, Boris Johnson’s determination, clear vision and optimism have resulted in a declaration that is quite different to the withdrawal agreement rejected three times by parliament. Further, the arch remainers are in a bind now that EU leaders have said they do not want a further extension of the Article 50 period. If the question is truly “deal or no-deal” will they compromise or just abstain? Or will there be some other ruse to stop Brexit? In the Brexit battle Boris, no doubt on advice from political strategist Dominic Cummings, has out-manoeuvred his opponents. Whilst Jeremy Corbyn (Lab), Jo Swinson (Lib-dem), and Ian Blackford (SNP) have all said their parties will vote against this revised deal, they have done so by failing to understood the political trap in which they have fallen. If parliament decides to revoke Article 50 of the EU Treaty they will have to order the Prime Minister to pass this onto the EU. This will clearly be in breach of Article 51 of the Vienna Convention on Law of Treaties (1969), as Boris Johnson will only do so under coercion. As such it will make the revocation without legal effect under international law. Further, it is too late to remove the Prime Minister by legitimate means, whilst changing the role of the Prime Minister in the British Constitution at this late stage could be challenged under international law, may not be recognized by the EU and might be received badly by the British public. If the remainers abstain the deal will go through, whilst voting it down will see no-deal Brexit happen by default. Any other ruse may have already been anticipated by Cummings, such as requiring the deal to be approved by a second referendum.

Kevin Marshall

Are BETRAYAL, SURRENDER and HUMBUG appropriate words to use in Parliament?

Prime Minister Boris Johnson used the words BETRAYAL, SURRENDER and HUMBUG in Parliament following the cancellation of prorogation. The proprietary of using such words I would contend, are in the first instance, dependent on the context used, rather than upon the sensitivities of those on the receiving end of such words. To establish context I will first quote definitions, then look at the context in which they were applied. 

BETRAYAL 

From the Cambridge Dictionary

An act of betraying someone or something, or the fact of someone or something being betrayed

Point 1 of the European Union Referendum Act 2015 states

The referendum

(1)A referendum is to be held on whether the United Kingdom should remain a member of the European Union.

(2)The Secretary of State must, by regulations, appoint the day on which the referendum is to be held.

(3)The day appointed under subsection (2)

(a)must be no later than 31 December 2017,

(b)must not be 5 May 2016, and

(c)must not be 4 May 2017.

(4)The question that is to appear on the ballot papers is—

Should the United Kingdom remain a member of the European Union or leave the European Union?

(5)The alternative answers to that question that are to appear on the ballot papers are—

Remain a member of the European Union

Leave the European Union.

(6)In Wales, there must also appear on the ballot papers—

(a)the following Welsh version of the question—

A ddylai’r Deyrnas Unedig aros yn aelod o’r Undeb Ewropeaidd neu adael yr Undeb Ewropeaidd?, and

(b)the following Welsh versions of the alternative answers—

Aros yn aelod o’r Undeb Ewropeaidd

Gadael yr Undeb Ewropeaidd.

The Referendum was for the eligible voters to decide by a simple majority vote on whether to Leave or Remain in the EU. I do not get any impression that the Referendum was merely advisory on Parliament. Nor I can see no meaning in the question that implies leaving the EU is contingent on getting a withdrawal agreement with the EU. It is a simple question of in or out, to be decided by the referendum.  Further, I aware in recent memory of Parliament failing to be abide by the results of referenda, even when it goes against the will of a majority. Nor can most political parties claim that they did not vote for the referendum. The vote on the Second Reading of the Bill was 544 to 53, with the 53 opposed coming from the SNP. 

This is further enforced in a biased pamphlet, the government posted to every household. The pamphlet started.

An important decision for the UK

On Thursday, 23 June there will be a referendum. It’s your opportunity to decide if the UK remains in the European Union (EU).

There is nothing advisory implied in that statement, nor does it imply leaving would only be in any way partial.

The conclusion was

A once in a generation decision

The referendum on Thursday, 23 June is your chance to decide if we should remain in or leave the European Union.

The government believes it is in the best interests of the UK to remain in the EU.

This is the way to protect jobs, provide security, and strengthen the UK’s economy for every family in this country – a clear path into the future, in contrast to the uncertainty of leaving.

This is your decision. The government will implement what you decide.

The heading clearly implies that there will be no second referendum to clarify the decision. The last sentence is a statement from the Conservative government of the time. However, in the campaign I was aware of the either Labour or the Lib Dems coming out and saying that they would not respect a vote to leave. Finally, is a letter I recieved dated 08.04.16 from Britain Stronger in Europe, who a few days later become the official Remain campaign. 

The first sentance states

On the 23rd June, you will get to vote in the EU Referendum, and decide whether Britain remains in or leaves the Europe.

Although confusing the EU grouping with the continent, it is quite clear that the remain campaign recognized at the time that it was up to the voters to decide.

So when over three years after the British people voted to leave the EU, parliament trying to block leaving the EU is not a “betrayal”? This cannot ne directed at the Scots Nats, but can be directed at some in the Conservative Party, the Lib Dems, the Labour Party and numerous MPs who have left the their parties in the last year.

SURRENDER

This word has a number of meanings at Free Dictionary

1. To relinquish possession or control of (something) to another because of demand or compulsion: surrendered the city to the enemy. See Synonyms at relinquish.

2. To give up in favor of another, especially voluntarily: surrendered her chair to her grandmother.

3. To give up or abandon: surrender all hope.

4. To give over or resign (oneself) to something, as to an emotion: surrendered himself to grief.

5. Law To effectuate a surrender of.

“Surrender” refers to the European Union (Withdrawal) (No. 2) Act 2019, sponsored by Hilary Benn PC. This Act will forces the Prime Minister to request extension of the withdrawal period until a withdrawal agreement has been agreed. It thus surrenders ability of the Executive to negotiate fair terms with the European Union as there is no ability to depart without an agreement. By so doing, the EU could impose onerous terms, denying any form of genuine independence for the UK from European Union. It thus gives the ability of the EU to send a very clear message to other nations who might consider leaving the club. Further it encourages the EU Council to break with the “plain aim” of Article 50 (3) of the two year withdrawal period, and any subsequent mutually agreed extension, of the “promotion of stability and certainty in the EU“. Further, it compels the executive to surrender its powers to achieve aims for which it has a constitutional mandate, to a legislature which has gained no mandate for its actions. Indeed, parliament has twice refused to call a general election to gain a mandate to, in substance, reverse the result of the EU Referendum.

Humbug

From the Mirriam Webster dictionary, the noun is defined as

1a: something designed to deceive and mislead Their claims are humbug. b: a willfully false, deceptive, or insincere person He’s just an old humbug. denounced as humbugs the playwrights who magnify the difficulties of their craft— Times Literary Supplement

2: an attitude or spirit of pretense and deception in all his humbug, in all his malice and hollowness— Mary Lindsay

3: NONSENSEDRIVELacademic humbug

4 Britisha hard usually peppermint-flavored candy

The use of the word “humbug” was used by the Prime Minister in response a emotional outburst from Paula Sherriff MP. The full exchange is below.

The claimed prejorative language referred to is in relation to the Benn Act included “betrayal” and “surrender“. As outlined above, these can be viewed by those who voted to leave as accurate terms to describe that has been happening in the House of Commons. In this context it is not prejorative (i.e. having a disparaging, derogatory, or belittling effect or force). In this context, the honourable member for Dewsbury’s comments can be perceived as insincere or deceitful. Given that around 57% voted to Leave in Dewsbury, and the town has a history of racial intolerance, it is not surprising. However, that is not to condone the vicious threats that have been made against MPs, including against Ms Sherriff. Instead there are strategies to minimize the impacts.

Strategies to minimize prejorative language or hate speech

I have some suggestions to minimize and diffuse the increasingly bad feeling in this country towards parliament, along with the increasingly polarized views. My concern is that this once great country is heading towards a quasi dictatorship, with fundamental questions of direction and ideology being put beyond democratic decision-making.

First, in terms of what is allowable in terms of speech, try to gain some objective standards. For instance, whilst Paula Sherriff objects to the word “betrayal” from the Prime Minister in relation to the biggest constitutional crisis in this country for decades she herself has used the word in relation to more trivial issues. The hard left in general, and Shadow Chancellor John McDonnell in particular, have long used language that encourages highly predjudiced, even hatred, towards opponents.

Second is to substantiate one’s claims based on the real world, not on mass hearsay. Then be prepared to defend these claims, showing them superior against the alternatives. There is a long tradition of this principle in English Common Law with trial by jury. The onus there is on the prosecution to prove their case beyond reasonable doubt, with the defence able to challenge the allegations made. This is overseen by a judge, who tries to ensure a fair hearing to both sides, and will take a very dim view of any attempt to undermine that fairness. In this respect I do not believe that a case can be made for a no-deal Brexit being catastrophic disaster. Rather there are risks of transitional issues, which a competent government should be able to mostly mitigate by sound policy. Further a no-deal Brexit can open up new opportunities, which a government with vision and optimism can either exploit, or stand back and let entrpreneurs expolit them,

Third, is for MPs to respect the mandate that they were elected on. On most issues it is expected that MPs should employ some pragmatism. But where there is a complete about-face on the central issue of their political careers,there is a responsibility for those politicians to seek a new mandate. Distrust in the democratic process will only be increased if politicians do an about-face and spurn the opportunity to seek a new mandate. Severely marginalizing a great mass of the people is a sure way to get civil unrest and calls for authoritarian government.

Kevin Marshall

Is the Benn Surrender Act incompatible with Article 50?

Earlier this month the High Court of Justice in Northern Ireland published a judicial review from three applicants v the Prime Minister and others. Although not widely reported, it was commented on by Guido Fawkes, and the judgement itself is linked to by the website. It was a case of Remainers trying to derail Brexit by ever legal ruse they could think of. The Judge threw out all arguments, and saddled the applicants with all the costs.

One area covered in the judicial review is on Article 50, which I believe could be the basis of a legal challenge to the European Union (Withdrawal) (No. 2) Act 2019, colloquially called the Benn Surrender Act. Quotes from the review are cited as by paragraph and page. E.g. (3):4 is paragraph 3, page 4.

Article 50

The review quotes Article 50 of the Treaty of the European Union in full. 

Article 50 of this international treaty (the “TEU”) provides:

“(1) Any Member State may decide to withdraw from the
Union in accordance with its own constitutional
requirement.

(2) A Member State which decides to withdraw shall notify
the European Council of its intention. In the light of the 12 guidelines provided by the European Council, the Union shall negotiate and conclude an agreement with that State, setting out the arrangements for its withdrawal, taking account of the framework for its future
relationship with the Union. That agreement shall be negotiated in accordance with Article 218(3) of the Treaty on the Functioning of the European Union. It shall be concluded on behalf of the Union by the Council acting by a qualified majority, after obtaining the consent
of the European Parliament. 

(3) The Treaties shall cease to apply to the State in question from the date of entry into force of the withdrawal agreement or, failing that, two years after the notification referred to in paragraph (2), unless the European Council, in agreement with the Member State concerned, unanimously decides to extend this period. 

(4) For the purposes of paragraphs (2) and (3), the Member
of the European Council or of the Council representing the withdrawing Member State shall not participate in the discussions of the European Council or Council or in decisions concerning it ….

(5) If a State which has withdrawn from the Union asks to rejoin, its request shall be subject to the procedure 
referred to in Article 49.”

Article 49 makes provision for any European State applying to become a member of the EU. This contemplates a formal agreement between the Applicant State and the Member States.

Article 50 TEU Analysed

(55):46-47 

Certain aspects of Article 50 did not fall to be construed in either Miller or Wightman. Bearing in mind that the exercise is one of construing a measure of EU law, I consider that those aspects of Article 50 not addressed in either Miller or Wightman yield the following construction:

(i) First, there is no concept, meaning or definition of “negotiate” supporting the view that the clause beginning “… the Union shall negotiate … ” denotes a duty and exercise unilateral in nature. It takes two to tango. The concept of negotiation must surely be, depending on its context, something bilateral or multilateral in nature. This discrete element of Article 50(2) would be emptied of meaning and rendered nugatory if it is not to be construed thus.
(ii) There is no legal context known to this court which dictates that negotiations must culminate in a legally binding agreement between the negotiating parties. There is nothing in the text of Article 50 which displaces this proposition. Nor is there any identifiable basis or rationale for implying any different or contrary
construction.
(iii) Article 50(2) clearly establishes an imperative, namely a negotiated and concluded withdrawal agreement, without purporting to mandate that this occur.
(iv) Article 50(3) expressly contemplates the possibility that the negotiations required by Article 50(2) will not culminate in a withdrawal agreement.
(v) The plain aim of the two year period specified in Article 50(3) is the promotion of stability and certainty in the EU.
(vi) The provision made in Article 50(3) for consensual extension of the basic two year period is plainly designed to further the overarching imperative of a negotiated and concluded withdrawal agreement.

The Descisions in Wightman and Miller are covered respectively by (20-21): 15-16 and (22):16.

The first point dispells any claims that it only Britain that should negotiate, with the EU acting as immovable.

The second and third points dispel any notion that an agreement must be concluded as a condition of leaving the EU. The fourth point is that Article 50(3) possibility that a member state will exit without a deal.

The fifth and sixth points are relevent to the Benn Surrender Act. The two year noticification period is clearly for “the promotion of stability and certainty in the EU“. By implication any extension of the period is to achieve that aim. If a conclusion of a withdrawal agreement is not possible, as the parties are too divided, then a further extention is not justified. It would go against the spirit if Article 50 to use an extention as a means of punishing a member state for wanting to leave when such an extension is furthering a period of uncertainty and disrupting the normal business of the EU.

Further, the Surrender Act potentially impels the Prime Minister to submit a request to the EU to extend Article 50 until 31st January 2020.  Yet the same Parliament has on two occasions has failed to trigger a General Election to remove Prime Minister Boris Johnson, whose declared central policy aim is to leave the EU on 31st October “do or die“. In so doing Parliament implicitly recognizes the authority of Prime Minister Johnson as the Head of State in the negotiation of international treaties. Parliament is therefore conflicted.

But most paradoxically, whilst Britain remains a member of the EU it is still bound by the Treaty of the European Union. The Surrender Act in compelling the Prime Minister to potentially request an extension of the withdrawal period for purposes other than negotiating a withdrawal agreement, and in causing continued disruption to the EU as a whole, and Britain as a member state in particular, are clearly going against the intent of Article 50(3) of the European Union. Parliament should be honest and revoke Article 50. However, although a majority could be achieved in both houses of parliament, there is no democratic mandate to do this. In other words the House of Commons in wanting to frustrate Brexit and to remain in the EU is potentially in breach of the clear intent of TEU Article 50(3), creating a clear constitutional mess in an EU member state, all to suppress the EU Referendum result for which the House of Commons has no democratic mandate.

Kevin Marshall

Confirmation that Labour cannot win a General Election

My previous post looked at the implications of the May European Election Results for a future General Election. At Capx Matt Singh takes a similar approach in Does first past the post still favour Labour and the Tories? https://capx.co/does-first-past-the-post-still-favour-labour-and-the-tories/
The conclusions are slightly different to my own but it is worth comparing and contrasting Singh’s analysis and my own.

Matt Singh just looks at the May results, whereas I also look at the 2014 European Election results and the following General Elections in 2015 and 2017. This is my Figure 1

Fig 1 : Vote share of major parties in four recent UK elections

Matt Singh concentrates on the current polling data showing the four parties on roughly equal voter share. I agree with his statement

(O)n current vote shares, no party would be anywhere near an overall majority. If we put all four main parties on 21 per cent, the assumptions detailed above would put Labour on around 180 seats, the Brexit Party on around 160 seats, the Lib Dems on roughly 130, the Conservatives down to about 100 and the SNP in the 50s.

That is on equal vote shares the Labour Party would gain the most seats, with the Conservatives the least. Further, I agree that for the two major parties …..

…. dropping too far into the teens could see Labour or Tories being decimated, with seat numbers dropping into the double digits. Labour would have a degree of protection, because its enormous majorities in its safest seats would save it in many cases. But the Tories really would be staring into the abyss.

I also looked at the council area results by four or five regions of Great Britain. That is Northern England, Midlands/Wales, Southern England, London, and Scotland. The latter two I lumped together as they had stood as out as sharing opinions on Brexit different from the other regions.

Matt Singh used data from Professor Chris Hanretty, who has estimated the European election results by constituency from the results by council. The two key tables, (under the banner of Number Cruncher Politics) are as follows

Fig 2 : From the Capx.co article
Fig 3 : From the Capx.co article

These two charts show why the Tories are more vulnerable to a complete meltdown than Labour, as the latter have much stronger support in the ninth and tenth deciles. Singh does not draw the corollary conclusion. That is, based in even swings, to form a majority Government the Tories need to achieve a lower national vote share than Labour to achieve an overall Parliamentary majority. This is important. Hanretty’s charts are with 2019 UK vote shares of 9.1% for Conservative and 14.1% for Labour. To win a General election majority it is important to be ahead of the major opposition in the 5th and 6th deciles. In these areas, Labour were behind the Conservatives in the EU elections despite the 5 point lead overall. In addition, I attempted to go beyond the numbers to look at the impact of positions on Brexit. Both the Conservatives and Labour were punished in the Euro Elections for their vague positions on Brexit. The Conservatives for failing to exit the EU due to the failure to obtain anywhere near majority on the Withdrawl Agreement. Labour for being nominally pro-Brexit, but putting on onerous conditions that would see Britain end up remaining in the EU. Both parties lost out to those Parties with much more strident positions on Brexit. The Conservatives lost out mostly to the Brexit Party. Labour lost out to the Pro-Remain Liberal Democrats and the Green Party, along with the Plaid Cymru in Wales and the SNP in Scotland. The Conservatives lost out to Remain parties less than Labour lost out to the Brexit Party. In the last week, Boris Johnson – likely the next Prime Minister – has come out with a strong pro-Leave position that would grab votes from the Brexit Party in a General Election. Conversely, the Labour Party leadership is divided over whether to make Labour a Pro-Remain Party. If it did, Labour might gain some votes from a number of Remain parties but would lose votes to the Brexit Party, or the Conservatives. The Tories are thus in a much better position to achieve the 30% vote share / 10 point lead to win an election than Labour.

Kevin Marshall

How the Tories can win a General Election and why Labour cannot win

Summary 

In the May 2019 European Elections the Brexit Party were clear winners, with the Liberal Democrats a respectable second with near 20% of the vote. The two major parties were both punished by the voters – the Conservatives for failing to deliver Brexit and Labour for sitting on the fence. Analysis of the results by council area indicate

  • Labour Party support is more concentrated that the Conservative support and has huge divides in terms of support for Brexit.
  • Conservative support is more thinly spread and concides with both Brexit Party and Lib Dem areas.
  • Strong anti-Brexit vote split between Lib Dems, Greens, SNP and Plaid Cymru, whilst pro-Brexit support concentrated in the Brexit Party.
  • Change UK and UKIP had low support and have faded since.

The data strongly suggests that the Conservative Party are the most vulnerable to complete annihilation as a major player, but are the one’s who will be the net gainers with a clear Brexit policy. A No-Deal Brexit platform could see the Tories win a landslide, even with little over a third of the popular vote. A clear Remain platform for Labour could improve their current poll ratings, but is both unlikely under the current policy and would be insufficient overtake a Tory Party with a clear Brexit Policy.

Introduction

The United Kingdom of Great Britain & Northern Ireland is anything but united. The country as a whole and Parliament is deeply divided over Brexit, with a majority unable to be reached for any outcome. Prime Minister Theresa May has resigned the leadership of the Conservative Party with a large field of candidates vying to replace her. 

The Prime Minster, and others, have tried to patch together a majority through some compromise formula. The Withdrawal Agreement negotiated with the European Union will does not satisfy either the majority who voted to Leave the European Union, nor those who want to cancel the Brexit process. The new Conservative Leader will have a form a majority around a position, with a large highly disatified minority. In my view that will only happen after another General Election where one of the two major parties establishes a clear Parliamentary majority either on their own or in coalition. From my analysis of the data – mostly from the EU Elections in May – the only stable Parliamentary outcome is for the Conservatives to win on a platform of a no-deal Brexit. Under the current circumstances, the Labour Party cannot come close to a majority, primarily due to a revived Liberal Democrats, but also from the Green Party and the nationalists in Scotland and Wales.

Four recent UK elections & Failing to Deliver Brexit

The current context should be understood in the light of four recent UK-wide elections. 

Fig 1 : Vote share of major parties in four recent UK elections

The European Election in 2014 resulted in the United Kindom Indpendance Party (UKIP) achieving 26.6% of the vote and almost a third of the 73 UK seats in the European Parliament. The Conservative Party under David Cameron won the General Election in the following year with a promise of a referendum. Compared with the European Election of the previous year, the Conservative vote share increased 13.7% and the UKIP vote share decreased 14.0%.

The resultant European Union Referendum Act 2015 was supported by all major parties with the exception of the SNP. In the subsequent referendum on 23rd June 2016 the UK voted to leave the European Union, despite the vast majority of politicians and the greater financial resources being devoted to remain. Early the following day Prime Minister David Cameron accepted the result and resigned. Leader of the Opposition Jeremy Corbyn called on the Government to trigger Article 50 immediately. A few days later, Theresa May launched her leadership campaign with a key statement on Brexit.

 Brexit means Brexit. And we’re going to make a success of it. There will be no attempts to remain inside the EU, no attempts to rejoin it by the back door, and no second referendum. The country voted to leave the European Union, and as Prime Minister I will make sure that we leave the European Union.

On 7th December 2016, the House of Commons vote on respecting the
outcome of the referendum is passed 448 votes to 75.

On 29th March 2017 Prime Minister Theresa May notifys the EU of the UK’s intention to leave. The time period is two years, implicitly making the withdrawal date 29th March 2019.

On 18th April 2017 the Prime Minister calls a snap General Election to
for 8th June, to capitalise on the Tories clear lead in the opinion polls. The outcome is the Tories lose their majority. Yet compared to the 2015 General Election, the Conservatives vote share increases 5.6% to 42.4% and the UKIP vote share is down 10.8% to just 1.8%.

A House of Commons Timeline extracted the commitments of the two major parties in their 2017 manifestos. The Conservative manifesto stated

As we leave the European Union, we will no longer be members of the
single market or customs union but we will seek a deep and special
partnership including a comprehensive free trade and customs agreement.

The final agreement will be subject to a vote in both houses of parliament. To agree the terms of our future partnership alongside our withdrawal, reaching agreement on both within the two years allowed by Article 50 of the Treaty on European Union.
Once EU law has been converted into domestic law, parliament will be able to pass legislation to amend, repeal or improve any piece of EU law it chooses, as will the devolved legislatures, where they have the
power to do so.

The Labour Party Party Manifesto stated

Labour accepts the referendum result and a Labour government will put the national interest first.
We will prioritise jobs and living standards, build a close new relationship with the EU, protect workers’ rights and environmental
standards, provide certainty to EU nationals and give a meaningful role
to Parliament throughout negotiations.
To scrap the Conservatives’ Brexit White Paper and replace it with fresh
negotiating priorities that have a strong emphasis on retaining the benefits of the Single Market and the Customs Union.
A Labour government will immediately guarantee existing rights for all EU nationals living in Britain and secure reciprocal rights for UK citizens who have chosen to make their lives in EU countries.

Both parties have commitments to leave the EU, but have quite different intepretations. The Conservatives guaranteed to leave on 29th March 2019, whilst Labour makes leaving conditional on obtaining certain guarantees. Neither Party has changed these commitments. It can be argued that neither Party respects the perception of leaving as exiting the single market and other institutions, as projected by both the Leave campaign and the Government’s Pro-Remain booklet sent to every household as part of the referendum campaign. 

The EU withdrawal agreement does not contradict the Conservatives manifesto, but does contradict the perception of what leaving the EU means.

On 15th January 2019 the EU Withdrawal Agreement is defeated “by a majority of 230 (with 202 voting in favour of the Prime Minister’s Brexit deal and 432 against).” Despite this, the Government won a no confidence vote the next day by 325 to 302. In a second “meaningful vote” on 12th March, the Government loses by 149 votes.

On the 13th March, “Dame Caroline Spelman’s amendment (moved by Yvette Cooper) – ruling out a ‘no-deal Brexit’ at any time – is passed by 312 votes to 308.” On the same day a motion “to seek permission from the EU to delay Brexit beyond 29 March 2019” is passed by 413 votes to 202.

On 14th March “Dr Sarah Wollaston’s amendment – requesting an extension of Article 50 in order for a second referendum to take place – is rejected by 335 votes to 85.” This is delayed first to 12th April, then to 31st October. 

It is interesting to note that during March the Conservatives were mostly leading in the opinion polls, but after 29th March Labour were leading. In April, after the launch of the Brexit Party and the announcement of European Parlimentary elections, both parties lost support. 

In the European elections the Brexit Party was the clear winner. The Brexit Party and UKIP combined reached 33.7% of the vote (30.5% and 3.2%), up 31.9% on GE 2019, whilst the Tories had 8.8% of the vote, down 33.6%. The Liberal Democrats and the Green, with their clear policies to stop Brexit,improved by 12.2% and 11.0% to 19.6 and 12.6%, whilst the Labour Party’s vote share declined 26.3% to 13.7%. Whilst not all the vote movement from the Tories to no-deal Brexit parties, or from Labour to the stop Brexit parties, a massive poll published by Lord Ashcroft on 27th May confirms that this was the majority case. The Tories saw greater losses to the Brexit Party, whilst Labour saw losses to both the Liberal Democrats and the Greens. The poll also showed that the Labour Party of who retained more supporters from the General Election 2017.

The EU Election 2017 as a General Election opinion poll 

Although there are clear differences in voting patterns between the European Elections and the General Elections, it is clear that from the above analysis for either the Conservative or Labour Parties to stand a chance of getting a majority, they must regain voters lost to other parties in the European Elections. Some voters will move back anyway, and much higher turnout in General Elections will have a role to play. But opionion polls in the last two weeks show that we may have four UK-wide parties in play, with the Greens making up a significant fifth. Fig 2, extracted from Britain Elects, summarizes these polls.

Fig 2 : Westminster Opinion polls in the three weeks following the European Elections 2019. Source Britain Elects

Britain Elects also summarized the EU Election Results 2019 by council area, with the change on 2014. For Great Britain (i.e. the UK excluding Northern Ireland) I have summarized these results by the YouGov opinion poll regions. That is (with number of MEPs) England North (17), England South (16), Midlands + Wales (23), London (8) and Scotland (6). This is only indicative as council areas vary considerably in number of voters. In the EU Referendum of 2016, the electorates for the Isles of Scilly, Orkneys and Shetlands were respectively 1,800, 16,700 and 17,400. At the other end of the scale Leeds had 543,000 voters and Birmingham 707,000. Also I have only covered just over 90% of councils. Due to re-organisations in areas like Suffolk and Dorest comparisons between 2014 and 2019 are not available.

Independence Parties Vote increase from 2014 to 2019

If the May European Elections had been a General Election I estimate the Brexit Party would have won a parliamentary majority of around 170 seats with just under one third of the vote. Combined with the UKIP vote, the two Independance Parties achieved a considerably higher share of the vote than UKIP did on its own in 2014. This is common across virtually every council area, as shown in Fig 3

Fig 3 : UKIP vote share by council in European Elections 2014 compared to Brexit Party plus UKIP vote share in European Elections 2019. Black line denotes no change.

There are very few council areas where the Independence vote did not increase. The variation by YouGov region is noticeable.

Fig 4 : Regional split of UKIP vote share by council in European Elections 2014 compared to Brexit Party plus UKIP vote share in European Elections 2019. Black line denotes no change.

It is in the North of England, the Midlands and Wales where some of the largest increases in the Indpendence party votes have occured. In the South of England the increase is more moderate. In both London and Scotland support for Independance parties is generally less than in the rest of the UK, with the outliers being in outer London. In 2014 the call was for a Referendum on the European Union. In 2019 the failure to implement the result of that referendum resulted in an even greater vote for the Independence Parties. In the sample councils in 2014 the unweighted average for UKIP was 29% of the vote. In 2019 the Brexit Party had an unweighted average of 33.9%. The Lib-Dems on a “block Brexit” platform achieved a more substantial gain, from 7.2% in 2014 to 19.9% in 2019. The Conservatives lost ground, from 25.0% average vote share in 2014 to 9.0% in 2019. The Labour Party also lost ground from 22.9% to 12.6%. 

Countering the Lib-Dems and the Brexit Party in a GE2019

In the 2014 Euro Elections both Labour (under Ed Miliband) and the Conservatives (under David Cameron) lost votes to UKIP, but both maybe gained votes from the Liberal Democrats. In 2019 the Conservatives and Labour Parties both lost more ground, this time to the Brexit Party, the Lib Dems, and to lesser parties like the Greens. In this section I look at the vote shares of the two major parties in 2014 Euro Elections with those of the Brexit Party in 2019.

Fig 5 : Labour and Conservative vote share by council in European Elections 2014 compared to Brexit Party vote share in European Elections 2019. Black line denotes equal share. To the lower left is where Brexit Party has larger share in 2019 than Labour or Conservative Parties in 2014.

In Figure 5 in the vast majority of councils the Brexit Party achieved a greater share of the vote in 2019 than either the Labour or Conservative Parties did in 2014. The scatter is somewhat different. The Labour party has a fair number of councils where their 2014 vote share far outstripped the Brexit Party’s 2019 vote share, but a far greater number of councils where they did badly in 2014 (i.e. much less than 20% vote share) and where the Brexit Party achieved over 30% vote share in 2019. For the Conservatives the biggest cluster is where they achieved greater than 20% vote share in 2014 and the Brexit Party achieved greater than 30% vote share in 2019. This indicates that the Conservatives have far more to gain from adopting the Brexit Party’s no deal Brexit position than Labour.  The regional split largely confirms this. 

Fig 6 : Regional split of Labour Party vote share by council in European Elections 2014 compared to Brexit Party vote share in European Elections 2019. Black line denotes equal share. To the lower left is where Brexit Party has larger share in 2019 than Labour Party in 2014.

Figure 6 looks at the regional fight between the Labour Party and the Brexity Party. Given that the current Labour leadership is dominated by London-based MPs (Jeremy Corbyn, John McDonnell, Emily Thornberry, Diane Abbott) the perspective could be that there is little to be gained electorally from adopting a strong “Leave” position. Labour are strong where the hardline Brexiteers are weak. There are also councils in other parts of England (e.g. Liverpool, City of Manchester, Oxford, Bristol) where this pattern also applies. Conversely there are many councils in the Midlands and the South where the Labour Party has a very weak presence, but the Brexit Party gained over 30% of the vote in 2019. There are also quite a few councils where the Labour Party has considerable competition from the Brexit Party. This includes many marginal areas in the Midlands and North that Labour would need to win to form a Government. These include Barrow-in-Furness, Broxtowe, Bolsover, Dudley and Wrexham.

Fig 7 : Regional split of Conservative Party vote share by council in European Elections 2014 compared to Brexit Party vote share in European Elections 2019. Black line denotes equal share. To the lower left is where Brexit Party has larger share in 2019 than the Conservative Party in 2014.

Figure 7 shows a quite different position for the Conservative Party compared to Labour. They are strongest in the South and much of the Midlands. In these key areas the Tories have strong competition from the Brexit Party. 

Lib Dems and Brexit Party Head-to-Head 2019

In the Euro Elections the Liberal Democrats also made a strong showing, achieving second place behind the Brexit Party. Their “Stop Brexit” policy is the antithesis of the Brexit Party’s “No Deal Brexit” stance. There were other Parties with similar hardline positionsin the May elections. In Figure 1 the Green Party made a strong showing, as did the nationalist parties in Sotland and Wales. Change UK had a similar small share of the vote to UKIP. It is unlikely either will figure in a General Election.

The problem for both Labour and the Tories is that winning votes from either the Lib-Dems or the Brexit Party will mean losing votes to the other. Their attempts at straddling the polar opposites last month meant losing to both sides. In this context it is worth examining the vote shares of the Lib-Dems and the Brexit Party by council. 

Fig 8: Liberal Democrat and Brexit Party vote shares in European Elections 2019 for Great Britain. The black line denotes equal share. London and Scotland combined.

Of the 365 councils covered, the Brexit Party had a greater share of the vote in 297. The regional split gives more information.

Fig 9: Regional split of Liberal Democrat and Brexit Party vote shares in European Elections 2019. The black line denotes an equal share. London and Scotland combined.

In Figure 9 I have combined London and Scotland as they show a similar picture that is quite different from the rest of Great Britain. The North of England has a less widespread Lib-Dem support than in the combined South East and South West Regions. In the central belt from Wales to East Anglia there is quite strong Lib Dem support in a minority of places. In a good proportion of that minority Brexit Party support is stronger. In London and Scotland it is the Lib-Dems that are stronger. Scotland has most of the instances where combined Lib Dem and Brexit Party Support was less than 40% due to the SNP being the leading party.

Lord Ashcroft Polls

Lord Ashcroft published a massive Euro-election post-vote poll on 27th May looking the shift in vote from the General Election 2017 and the Euro Elections. With respect to the loss of votes from the two major parties the article states

More than half (53%) of 2017 Conservative voters who took part in the European elections voted for the Brexit Party. Only just over one in five (21%) stayed with the Tories. Around one in eight (12%) switched to the Liberal Democrats. Labour voters from 2017 were more likely to stay with their party, but only a minority (38%) did so. More than one in five (22%) went to the Lib Dems, 17% switched to the Greens, and 13% went to the Brexit Party.

That is, for every one of the 2017 Conservative voters who voted Liberal Democrat last month, more than four voted for the Brexit Party. For the Labour it is the other way round. For every one of the 2017 Labour voters who voted for the Brexit Party, three voted for the either the Liberal Democrats or the Greens.

If this is cast into the above analysis, a no-deal Brexit strategy for the Tories will draw back votes from the Brexit Party, but not lose them a whole lot more votes to the Liberal Democrats. On the other hand for Labour, a clear Remain strategy to win back voter share is less pronounced, as in May they retained a larger share of the 2017 voters, and have a less one-sided loss parties with a clear Brexit standpoint. From today’s announcement, the adoption of a clear Pro-Remain strategy is not likely to happen whilst Jeremy Corbyn is the leader.

Conclusions

In the South of England, much of Central England and in parts of Northern England and Wales the Conservatives were the strongest party in 2017 and where the Brexit Party support is considerably stronger than the Liberal Democrats. A clear No-Deal Brexit policy as the way of respecting democracy would, therefore, win more votes than it lost. It would mean losses of a number of constituencies such as Winchester and Richmond-on-Thames. On the other hand, it could mean winning constituencies from the Labour Party, particularly where the Liberal Democrat and Green share increased on 2017. For the Conservatives, it means a will to win a majority in the knowledge that fair number of existing seats would be lost in the process.

The Labour Party is unlikely to clarify its position on Brexit, despite many in the party such as Emily Thornberry and Tom Watson wanting this change. The reason is the danger of losing seats through betraying the Leave voters in the North, Midlands and Wales, with substantial numbers of Labour MPs being against the move. Yet sitting on the fence will lose votes to four parties, or for traditional Labour voters to stay at home. The Conservatives will the biggest winners here.

Kevin Marshall

Revoke Article 50 Petition being dominated by London Labour

There is currently an on-line petition

Revoke Article 50 and remain in the EU

The government repeatedly claims exiting the EU is ‘the will of the people’. We need to put a stop to this claim by proving the strength of public support now, for remaining in the EU. A People’s Vote may not happen – so vote now.

As of noon today it has reached 4.18 million signatures, up from 3 million yesterday morning and just a million two days ago. Guido Fawkes noted that there are a number of foreign signatures, some likely to be fake. A massive EU Second Referendum petition in July 2016 had large numbers of fake signatures created by bots, including large numbers from the Vatican and Antarctica, with at least 77,000 being removed. This might be happening with the current petition. This could be by bots, or by individuals making multiple signatures through using multiple email addresses. I have downloaded the data at around 8am this morning, when there were 3.78 listed signatures, of which 3.64 million were against the 650 UK constituencies.

Analysis By Constituency

I ran the 8am signatures by constituency against data from the General Election 2017, including for the sitting MP, the Political Party in 2017, the electorate and the valid votes cast. I have also used estimated Leave Vote figures by constituency from Politics Professor Chris Hanretty. Although they are estimates, I do believe it is very unlikely that they are more than a few percentage out. An estimated extreme Remain constituency would have been unlikely to have voted Leave. The Constituencies with the top 20 signatures are as follows.

Note that most of consituencies are Labour-held and in London. The constituencies of three key members of the Shadow Cabinet are included. Islington South and Finsbury (Rt Hon Emily Thornberry MP) is number 21 on the list.

Chuka Umunna MP has left the Labour Party. But alongside Caroline Lucas MP and Rt Hon Vince Cable MP, is a non-Labour MP with an extreme pro-Remain stance. All constituencies voted very strongly to Remain in the EU.

I suspect that there is some multiple voting going on. In every single constituency the signatures on an online petition are over a quarter of the number of valid votes in the 2017 General Election. Cities of London & Westminster Constituency exceeds 40%. This is the prime target if you want to send a scam message to the occupants of the Palace of Westminster.

At the opposite end of the spectrum are the bottom 20 constituencies for signatures.

None of the constituencies are in London or South of England. Note that 15 of the constituencies have Labour MPs and are located in the traditional Labour heartlands of the North of England, the Midlands and Wales. Na h-Eileanan an Iar is an exception in that it voted remain. But it is also by far the smallest constituency, so is an anomaly. On average there was a 67% Leave vote.

The dominance of the top 20 metropolitan constituencies had 358,560 signatures at 8am, or 10% of the UK total, compared to 355,526 of the bottom 156 constituencies. Yet in terms of a voice these top 3% of constituencies get represented in the media far more than the bottom 24%. That is a major reason a majority voted to Leave the EU. In many areas people were sick of being controlled by outsiders who have different perspectives, and will not listen to them. The EU Referendum was a big up-yours to the London-based Metropolitans.

Finally, here is a little pivot table of the bottom 156 constituencies by Region and by Party of the MP.

The constituencies represented are just 24% of the total, but around half those in the forgotten regions of Wales, North East, West Midlands and Yorkshire & Humber.

Kevin Marshall

Leave EU Facebook Overspending and the Brexit Result

Last week an Independent article claimed

Brexit: Leave ‘very likely’ won EU referendum due to illegal overspending, says Oxford professor’s evidence to High Court

The article began

It is “very likely” that the UK voted for Brexit because of illegal overspending by the Vote Leave campaign, according to an Oxford professor’s evidence to the High Court.

Professor Philip Howard, director of the Oxford Internet Institute, at the university, said: “My professional opinion is that it is very likely that the excessive spending by Vote Leave altered the result of the referendum.
“A swing of just 634,751 people would have been enough to secure victory for Remain.
“Given the scale of the online advertising achieved with the excess spending, combined with conservative estimates on voter modelling, I estimate that Vote Leave converted the voting intentions of over 800,000 voters in the final days of the campaign as a result of the overspend.”

Is the estimate conservative? Anthony Masters, a Statistical Ambassador for the Royal Statistical Society, questions the statistics in the Spectator. The 800,000 was based upon 80 million Facebook users, 10% of whom clicked in on the advert. Of those clicking, 10% changed their minds.

Masters gave some amplification on in a follow-up blog post Did Vote Leave’s overspending cause their victory?
The reasons for doubting the “conservative” figures are multiple, including
– There were not 80 million voters on Facebook. Of the 46 million voters, at most only 25.6 million had Facebook accounts.
– Click through rate for ads is far less than 10%. In UK in 2016 it was estimated at 0.5%.
– Advertising is not the source of campaigning. It is not even viewed as the primary source, merely bolstering other parts of a campaign through awareness and presence.
– 10% of those reading the advert changing their minds is unlikely. Evidence is far less.
Anthony Masters concludes the Spectator piece by using Professor Howard’s own published criteria.

Prof Howard’s 2005 book, New Media Campaigns and the Managed Citizen, also argues that we should apply a different calculation to that submitted to the High Court. His book says to apply a one per cent click-through rate, where 10 per cent “believe” what they read; and of that 10 per cent act. This ‘belief’ stage appears to have been omitted in the High Court submission’s final calculation. Using these rates, this calculation turns 25.6 million people into 2,560 changed votes – hardly enough to have swung the referendum for Leave, given that their margin of victory was over a million votes. If we share a belief in accuracy, this erroneous claim should have limited reach.

There is further evidence that runs contrary to Prof Howard’s claims.

1. The Polls
To evaluate the statistical evidence for a conjecture – particularly for a contentious and opinionated issue like Brexit – I believe one needs to look at the wider context. If a Facebook campaign swung the Referendum campaign in the final few days from Remain to Leave, then there should be evidence of a swing in the polls. In the blog article Masters raised three graphs based on the polls that contradict this swing. It would appear that through the four weeks of the official campaign the Remain / Leave split was fairly consistent on a poll of polls basis. From analysis by pollster YouGov, the Leave share peaked on 13th June – ten days before the referendum. The third graphic, from a statistical analysis from the LSE, provides the clearest evidence.

The peak was just three days before the murder of MP Jo Cox by Tommy Mair. Jo Cox was a Remain campaigner, whilst it was reported that the attacker shouted slogans like “Britain First”. The shift in the polls could have been influenced by the glowing tributes to the murdered MP, alongside the speculation of the vile motives a clear Vote Leave supporter. That Jo Cox’s murder should have had no influence, especially when campaigning was suspended as a result of the murder, does not seem credible.

On Twitter, Anthony Masters also pointed to a question in Lord Ashcroft’s poll carried out on the day of the referendum – How the United Kingdom voted on Thursday… and why to a graphic that looked at when people had decided which way to vote. At most 16% of leave voters made up their minds in the last few days, slightly less than the 18% who voted remain.

The same poll looked at the demographics.


This clearly shows the split by age group. The younger a voter the more likely they were to vote Remain. It is not a minor relationship. 73% of 18-24s voted for Remain, whilst 40% of the 65% voted. Similarly, the younger a person the greater the time spent on social media such as Facebook.

2. Voting by area
Another, aspect is to look at the geographical analysis. Using Chris Hanretty’s estimates of the EU referendum results by constituency, I concluded that the most pro-Remain areas were the centre of major cities and in the University Cities of Oxford, Cambridge and Bristol. This is where the most vocal people reside.

The most pro-Leave areas were in the minor towns such are Stoke and Boston. Greater Manchester provided a good snapshot of the National picture. Of the 22 constituencies is estimated that just 3 has a majority remain vote. The central to the City of Manchester. The constituencies on the periphery voted to Leave, the strongest being on the east of Manchester and a few miles from the city centre. Manchester Central contains many of the modern flats and converted warehouses of Manchester. Manchester Withington has a preponderance of media types working at Media City for the BBC and ITV, along with education sector professionals.

These are the people who are not just geographically marginalised, but often feel politically marginalised as well.

Concluding comments

Overall, Professor Howard’s claims of late Facebook posts swinging the Referendum result are not credible at all. They are about as crackpot (and contradict) as the claims of Russian influence on the Brexit result.
To really understand the issues one needs to look at the data from different perspectives and the wider context. But the more dogmatic Remainers appear to be using their power and influence – backed by scanty assertions -to thrust their dogmas onto everyone else. This is undermining academic credibility, and the democratic process. By using the courts to pursue their dogmas, it also threatens to pull the legal system into the fray, potentially undermining the respect for the rule of law for those on the periphery.

Kevin Marshall

Did Brexit Influence the General Election 2017 Result?

In the year following the EU Referendum, I wrote a number of posts utilizing Chris Hanretty’s estimates of the vote split by constituency for England and Wales. Hanretty estimates that 421 of the 573 constituencies in England and Wales voted to leave. These estimates were necessary as the vote was counted by different – and mostly larger – areas than the parliamentary constituencies.

Politically, my major conclusion was that it was the Labour Party who could potentially suffer more from Brexit. There are two major reasons for this situation.

First, is that the Labour constituencies had a far greater spread of views than the Conservative constituencies. This is in both the divergence between regions and the disproportionate numbers of constituencies that are were either extreme Remain or extreme Leave in the referendum. Figure 1 is for the result for constituencies with Conservative MPs in 2016, and Figure 2 for constituencies with Labour MPs.

Figure 1: Constituencies in England and Wales with Conservative MPs in 2016, by estimated Leave or Remain Band. 

Figure 2: Constituencies in England and Wales with Labour Party MPs in 2016, by estimated Leave or Remain Band. 

In particular, London, where much of the current Labour Leadership are based, has views on the EU diametrically opposed views to the regions where most of the traditional Labour vote resides. Further analysis, from July 2016, is here.

Second, is the profile of the Leave supports. Based on an extensive poll conducted by Lord Ashcroft on EU Referendum day, Leave support was especially strong on those retired on a State Pension, council and housing association tenants, those whose formal education did not progress beyond secondary school, and the C2DEs. That is, groups that traditionally disproportionately vote Labour. Further details, from May 2017, are here.

Yet, the results of the snap General Election in June 2017 suggest that it was the Conservatives that suffered from Brexit. Despite their share of the popular vote increasing by over 5%, to the highest share in 25 years, they had a net loss of 13 seats and lost their majority. Labour increased their share of the vote by 10%, but only had a net gain of 30 seats.

Do the positions on Brexit appear to have had an influence? The Conservatives were seeking a stronger mandate for the Brexit negotiations, whilst Labour strongly avoided taken a firm position one way or the other. Chris Hanretty has revised his estimates, with the number of Leave-majority constituencies in England and Wales reduced from 421 to 401. The general picture is unchanged from the previous analysis. I have taken these revised figures, put them into the eight bands used previously and compared to the full election results available from the House of Commons Library.

The main seat results are in Figure 3.

Main points from Figure 3 (for England and Wales) are

  • Conservatives had a net loss of 25 seats, 14 of which likely voted Remain in the EU Referendum and 11 likely voted Leave. Remain seats reduced by 18% and Leave seats by 4%.
  • All 6 gains from Labour were in strongly Remain constituencies. This includes Copeland, which was gained in a by-election in early 2017 and retained in the General Election.
  • Labour had a net gain of 24 seats, 13 of which likely voted Remain in the EU Referendum and 11 likely voted Leave. Remain seats increased by 16% and Leave seats by 7%.

Figure 4 is the average percentage change in the constituency vote from 2015 to 2017 for the Conservative Party.

Main point from Figure 4 for the Conservative Party is

  • The estimated Referendum vote is a strong predictor of change in Conservative Party vote share from 2015 to 2017 General Election.

Figure 5 is the average percentage change in the constituency vote from 2015 to 2017 for the Labour Party.

Main points from Figure 5 for the Labour Party are

  • Overall average constituency vote share increased by 10% on the 2015 General Election.
  • In the 6 seats lost to the Conservatives, Labour’s share of the vote increased.
  • In every area, Labour increased its share of the constituency vote with one exception. In the 6 seats that the Liberal Democrats gained from the Conservatives, the Labour share of the vote was on average unchanged. This suggests some tactical voting.
  • In Conservative “hold” seats Labour’s increase in vote share did not have a “Remain” bias.
  • In Labour “hold” seats Labour’s increase in vote share had a strong “Remain” bias.

In summary, it would appear that the Conservatives in implementing Brexit have mostly suffered at the ballot in Remain areas. Labour, in being the Party of Opposition and avoiding taking a clear position on Brexit, benefited from the Remain support without being deserted by the Leave vote. I will leave it for another day – and for others – to draw out further conclusions.

Kevin Marshall

Update 23rd May

Whilst writing the above, I was unaware of a report produced by political pundit Prof John Curtice last December Has Brexit Reshaped British Politics?

Key findings

In the 2017 election the Conservatives gained support amongst Leave voters but fell back amongst Remain supporters. Labour, in contrast, advanced more strongly amongst Remain than amongst Leave voters.

That is pretty much my own findings by a different method. Both methods can produce different insights. My own approach can give regional analysis.

Russian Brexit Influence on Social Media a Loser’s Conspiracy Theory

A few weeks ago there emerged a new conspiracy theory about the Russians have funded a massive pro-Leave social media campaign. I part-prepared a post backing one at Cliscep emphasizing how ridiculous the so-called evidence was for these claims. Last week Facebook announced that the Russian Internet Research Agency had spent a grand total of $1 (73p) on six adverts and Twitter revealed that a total of $1,031.99 had been spent on six referendum-related ads during the campaign.

There are two parts to this post.

  1. Russian Social Media impact on Brexit in context of the wider campaign
  2. The circumstantial evidence that social media was likely to have had a bigger influence on the Remain vote than on the Leave vote.

 

Russian Social Media impact on Brexit in context of the wider campaign

The evidence for the success of the Russians on Twitter in influencing the Brexit result needs to be viewed in the wider context.

First is to check the data in support of the argument. As Geoff Chambers pointed out @ 

Second is to look at the other tweets. The bot accounts were not the only source of tweets supporting Brexit. Further, there were quite a lot of tweets in the support of Remain.

Third, is that there are other sources of news/information/propaganda in support of both sides in the campaign. What about the official campaigns? Or the support of international political leaders or International Organisations (e.g. IMF, EU) or businesses? Would a majority of the British public really prefer the opinions of a Twitter Bot over those of President Barak Obama, Chancellor Angela Merkel, Prime Minister David Cameron, the British Treasury, celebrities like St. Bob Geldof, the majority of British MP’s or most British businesses?

 

Which side of the EU Referendum did social media influence more?

It is very difficult to tell the actual influence of social media on the vote, but there is strong circumstantial evidence that the influence will have been more towards increasing Remain vote rather than the Leave.

First is from the age spread of the vote. I believe that Twitter and other social media use is inversely related to age. Therefore, one would expect that if there had been undue influence, the young would have voted more for Brexit than the older folks. Lord Ashcroft’s Polls surveyed 12,369 on EU Referendum day and published on 24th June under “How the United Kingdom voted on Thursday… and why“.  73% of 18-24 year olds and 62% of 25-34 year olds voted to remain in the EU. It would suggest that the Leave campaign as a whole failed to reach the Twitterati.

From How the United Kingdom voted on Thursday… and why, is the following split by age band.

Second I believe that due to its transitory nature, social media is more likely to have had a bigger influence on in those who made up their mind at the last moment, than those who voted as a reflection of long-held beliefs. But whilst 25% of Remain voters decided in the last week, just 22% of Leave voters did so. So either social media made a bigger influence on the Remain vote, or it had no significant difference at all.

Third evidence that runs counter to a Russian influence through Twitter on the Brexit vote is in the geographical distribution of the Brexit vote. In England and Wales the constituencies that voted most strongly Remain were in inner cities, particularly London, Manchester and Liverpool. The strongest pro-Leave votes were widely spread. But the many of the extreme pro-Leave constituencies in the traditional Labour heartlands in the North of England and South Wales.

I live in Manchester. This encapsulates the divide. The City of Manchester has some of the most pro-Remain constituencies in the country, whilst much of the rest of Greater Manchester was pro-Leave. But as the City of Manchester folks has the most vocal people in the region, along with the most vocal twitterati, it would seem that Greater Manchester is full of Remainers. The estimated vote by constituency gives a quite different picture.

The Leave constituencies are on the margins of Greater Manchester and form the big majority. But the most vocal opinion formers are in central Manchester. Similarly, the most vocal activists nationally are those in London, along with the University Cities of Oxford, Cambridge, and Bristol.  Brighton and Manchester are also other centers of activism.

Following the EU Referendum, there was a major online petition to Parliament that wanted to nullify the result by having a 2nd Referendum on different rules.The petition was dominated by those in London and other centers of activism. This was a petition map extract of 00.30 26/06/16.

These same centres of activism dominated the “Prevent Donald Trump making a State Visit” petition at the beginning of this year. Compare the spread of petition numbers by political constituency with the rival petition supporting the state visit. The pale orange areas have proportionately very low numbers of signatories. The red areas have proportionately high numbers. The “Prevents” are mostly in the cities, the “Supports” have a much more even geographical spread.

 

Concluding Comments

The claims that Russian-sponsored social media presence helping tip the scales towards a Brexit vote does not stand up to scrutiny. The actual evidence of spending on social media is negligible; the other forms of media and major leaders were predominantly pro-Remain; the demographics of social media users are very much in line with Remain voters; and online activists are dominated by City-based virulently pro-EU types. The continued Russian conspiracy theory is predominantly from a bunch losers who cannot recognize that most people have different views from their own.

Kevin Marshall