Yesterday the government rightly said it would respect the law. It also hinted at a major problem with the European Withdrawal Number 2 Act recently passed by both Houses. It is by no means clear how the government could comply with it, especially given the Kinnock amendment incorporated into it. The rule of law is an important concept. It usually includes the propositions that law has to be clear, reasonable and enforceable. Statute law carries the authority of being passed by Parliament but still needs to meet these tests for the court to enforce it. Quite often the courts and Parliament have exchanges about what the law means and how it should be applied.

This European Withdrawal Act of Parliament says the government “must seek to obtain from the European Council an extension” to UK membership for three months, if no agreement has been reached which Parliament approves . It goes on to give a reason – “to debate and pass a Bill to implement the Agreement between the UK and the EU (The Mrs May Withdrawal Treaty)…including provisions reflecting the outcome of the interparty talks as announced by the Prime Minister on 21 May 2019, and in particular the need for the UK to secure changes to the Political Declaration to reflect the outcome of those inter party talks”.

So the government is asked to pass a major piece of constitutional legislation which the Parliament has three times rejected, with no promises or guarantees from the official Opposition they will change their mind and now vote for it in a Parliament where the government has no majority and has numerous government supporting MPs who do not  agree with the Agreement. In addition it is asked to negotiate a new Political Declaration to include unspecified outcomes from talks which both sides said ended without agreement . Who will share with us what were the outcomes of the talks that now have to be negotiated into the Political declaration and what if he EU will not consent to those changes?

The draft letter laid down in the Act for the PM to send requesting an extension does not offer any reasons to the EU why an extension should be granted because it was drafted on the assumption the Kinnock amendment would not pass. The EU has previously said it would grant more time to secure the passage of the draft Withdrawal Treaty agreed with Mrs May, but later concluded the UK Parliament was not going to pass it given the long and acrimonious debates and the three votes against. The EU has also said it might grant an extension for an election or second referendum, but Parliament has expressly voted against an early election to resolve matters, and has not supported a second referendum on the various occasions it has considered this idea. There cannot now be an election prior to the exit date currently enshrined in UK and EU law.

How could anyone  enforce a law of this kind on an unwilling government when Parliament is asking the government to do something which cannot be done or is based on a false assumption? The evidence is Parliament does not want to vote for the Withdrawal Treaty unamended, and there is no agreed set of changes to the Political declaration emerging from the inter party talks to take up with the EU. This law is a mess. It does not mention a so called “No Deal” Brexit, and does not take it off the table. It seeks to exit the EU based on the current Withdrawal Treaty which has thrice been rejected by the very same Parliament passing this Act. Government lawyers need to analyse this Act carefully.

I am receiving too many contributions from the same blogger and too many long contributions. As you can see the numbers have escalated sharply recently. I will have to delete more if from the same person each day or if they are long. Please send me your best single contribution each day and keep it to around a paragraph, unless you have researched argument which is new. I am very busy with many matters of national policy and in the constituency.

We did not hear from the usual pro Remain contributors to this site what kind of Remain they wanted. So let’s try another approach to get them talking about the EU. Here is a simple test of how pro EU membership you really are.

1. Do you want the UK to join the Euro soon?
2. Do you want the UK to join Schengen and have common borders with the EU?
3. Do you want the common EU defence and security identity to develop, so our forces typically are deployed for EU led missions?
4. Do you want a larger EU budget, with more transfers to the poorer countries?
5. Do you think the UK should reduce its current special abatement of contributions, to help the wider EU?
6. Do you welcome   the long term aim of the EU’s ever closer union which  is political union?

If you answer Yes to all six then you are indeed a keen advocate of EU membership and understand its full implications. If you say No to all these then maybe you should accept the UK cannot remain in the present EU, with so little in common with the aims and aspirations of the other members. Given the direction of travel and the legal form of the EU disagreeing with any one of these propositions makes the UK’s position difficult and means we cannot be at heart of the project. Nor can we claim to be a leading influence on the EU if we disagree with these common strands of EU thinking.

Throughout the referendum campaign Remain advocates refused to discuss the current state and the future path of the EU. Many of those I debated with declined even to defend the current EU, saying it had its faults and they wished it to be reformed.  I found few willing to defend the Common Fisheries Policy, the drift to common taxation through EU VAT, company tax rules and special taxes, the policy on animal husbandry, the Maastricht budget rules and austerity and much else of the current EU. Had we enjoyed a proper debate on the current and future EU I suspect more would have voted Leave. For those passionate Remainers who write in  here I am offering them a chance today to write about their favourite subject, why we should stay in the EU. Here are some possible futures of the EU. Which did they have in mind when they voted to keep the UK in membership?

1″Ever closer union”. Do they accept the main aims of the EU, to create a full monetary, social, economic and political union?  When do they think the UK should join in properly, by joining the Euro, the core of the current Union? Do they accept that the Euro with or without UK membership will need a bigger and better transfer union  to help the poorer countries in the Euro? Do they support a bigger EU  budget to bring that about? Do they welcome more EU based taxes to pay for Union policies? Do they welcome a common defence and security policy? Should UK armed forces be part of European forces and accept command from the EU?

2. If they wish to avoid some  features of ever closer union, how would they secure the necessary opt outs as the Union proceeds with a fuller budgetary and political union? How realistic is it for the UK to be round the  budget table for the general EU budget but not round the table for the Euro area budget? At what point does the opt out from the currency cease to  be an opt out from the budgetary consequences of the Euro? What would the UK have to do if there were another financial or banking  crisis in the Euro area?  How far can the UK allow defence industrial integration go before it is no longer an independent nation for defence purposes?

3. Are there any limits to government expansion and legal creep which characterise the advance of the EU? Do advocates accept that the more ECJ decisions there are, the  more regulations and directives there are, the more we are governed by the EU institutions and the less scope our Parliament has for independent action and lawmaking. The EU has a doctrine of the occupied field. Once it passes a directive or regulation, it then has power in that area and can override national parliaments. Recently the EU has for example taken over much of the regulation of the new social media and digital industries which are crucial for our future.  Surely at some point there has to be greater recognition in  the democratic system of the big transfer of power which is occurring, with strengthened democratic control over the EU Commission and the European Court of Justice, which is an activist court with a political mission.

Various people are spreading the lie that they were not told No deal is better than a bad deal  before the 2017 election. Not only did Mrs May often say it but it was  on p36 of the Conservative  Manifesto.

The Prime Minister has been taken hostage by Parliament. This Parliament has decided to oppose the people by denying us the result of our people’s vote. The Prime Minister threatened to implement the people’s view, so they decided to strip him of the power of his office to stop him. Revealing their true anti democratic nature they stopped him holding a general election to let the people reassert their will. This is surely the worst chapter in Parliament’s usually democratic story. It is quite wrong of Parliament to both prevent a government governing and to refuse an election to choose a new government. It is Parliament against the people.

It is something worse than this. It is deliberately placing UK government entirely under the control of EU government. The PM is hostage to stop him taking us out of the EU. He is hostage to stop him negotiating from a position of strength with the EU. He is hostage so the EU can pass any law, make any legal judgement, make any financial demand it wishes and a weak UK will have  to obey and pay.

So what are the Prime Minister’s options from here?

He should obey the law, but he should expect Parliament to pass laws according to our rules and conventions and not to abuse the legislative powers it holds.

He should not resign. Resigning would give the EU faction what they want, control of the executive as well as of Parliament. They would delay an election and seek to make it even more difficult for us to leave the EU.

He should mount the case that Parliament legislated to keep us in unreasonably.  It overturned the need for a Money resolution and Queens consent. It is seeking to make a law out of a political instruction to a Prime Minister it refuses to remove from office by voting him out. If Parliament does not like the government’s use of its powers, then it has to vote it out of office. It has refused to even consider a No confidence vote followed by an election if the opposition wins. The PM should not back down from his refusal to ask for another extension to our membership for no obvious helpful purpose.

The Prime Minister needs to seek an early election. He could on Monday try to amend the Fixed Term Parliament Act as that would only require a simple majority, not a two thirds majority.There could then be sufficient decent individual Opposition MPs who would support, seeing the damage delay is doing to Parliament and to their parties reputation with voters other than those wedded to the EU. There is the issue of whether that could invite worse amendments. It would need to have very narrow scope to avoid amendments that seek to change the franchise or undertake other constitutional changes, so once again lawyers and arguments over procedure would need to precede tabling  anything.

He should rally the country against those MPs and parties who have created this mess. He should urge other member states to deny any move to delay the UK’s exit further, making clear that the UK forced to stay in the EU against the will of the people is not in their interests any more than ours. How can the EU proceed when one of its largest members has no intention of joining the Euro, no intention of helping pay for the Euro scheme  and no wish to support any of the necessary moves to greater political union?

Government should obey the law.

Parliament should obey the rules when legislating.

The law Parliament is seeking to pass is an unusual law seeking to control the conduct of the Prime Minister in an international negotiation.

It is not a criminal law creating a new crime. There are no proposed penalties, fines or prison sentences in it should the PM not obey it. It is not  a general law applying equally to all of us, nor even a law always applying to government.  It is a Parliamentary instruction  or political opinion on one issue at one time  passed as  a law.

This Bill has passed this  far without a  Money Resolution to approve the large extra spending entailed in delaying our exit, and without Queens Consent to Parliament taking over the power vested in government to negotiate treaties.

The law courts wisely decided not to back the government’s  Parliamentary critics over prorogation. Recent events have shown, as the government argued,  the prorogation did not prevent Parliament returning to the issue of Brexit and making its views clear anyway. Parliament will have yet more time to debate Brexit in October after the conference break.

The attempt to control the PM’s conduct of an international negotiation through the courts is also unwise. It is Parliament’s job to control the PM in his international negotiations.  It does this, as with Mrs May, by ratifying  or refusing to ratify the results of the talks. It does it  if it wishes by endless debate and pressure during the course of the negotiations,  often with unhelpful effects on them.  If enough MPs in  Parliament strongly disapprove of the PM’s negotiating stance  then they need to remove him from office by voting  him down in a motion of no confidence and triggering an election.

Life requires  a series of negotiations. If you are buying a good or service the negotiation with the provider may be over price, quality, specification or other matters. You may start as a buyer with an idea of the service you want and an idea of a low price. The provider may have to explain that the available service is different and dearer.

Sometimes you the  buyer recognise that what you thought was on offer is not. You could decide to  buy what is on offer, and accept it is dearer, but you are more likely to decide that as what you want is not available it’s better to save your money or buy something else.

Other times you reach agreement over the style and quantity of service, and have to strike a compromise over the price. The buyer has to weigh up how much the provider needs the  business, and the provider needs to guess how much you want the service. More often than not a bargain is struck, but one or  both sides may miscalculate and end up with  no deal. If one or other side is unable to walk away from  the deal, then they will usually get a bad deal. The other party will exploit their weakness to a greater or lesser extent.

Most people understand this. Many people have bought a house, bought a car, or negotiated with a builder or some other domestic service provider. They have also often walked away from a house or a car as they turned out not to be good deals.  They know you walk away unless you really want something, and that you have to be willing to walk away if you want to keep pressure on for good quality and good value. This makes people all the more frustrated when they see how the UK has not done this in negotiating with the EU. We have seen time and again how the opposition to Brexit in Parliament and in  the establishment have constantly been undermining efforts by the UK to pursue a firm line in the negotiations. Mrs May refused to walk away when the EU came up with a very damaging sequencing to the negotiation, giving them all they wanted in the first part, the Withdrawal treaty, and leaving everything  the UK might want open until after the first part was signed. She then refused to walk away when the draft Withdrawal Agreement took shape with a huge move to keep our money, keep us under the EU control for longer, and to invent an Irish backstop as a possible means to keep us indefinitely in the customs union and following single market laws. Now some of these same people have decided to cripple the UK’s attempt at a renegotiation by ruling out walking away, our best card to get the attention of EU  negotiators.

The big advantages we have are manifest. We pay them money, they don’t pay us money (net). They sell us far more imports than we sell them. Much more of their trade faces tariffs if we leave with no agreement than we face. We can trade quite successfully under WTO rules, with lower tariffs on fewer  products out than in. We can regain control of our money, our laws, our borders and our fish. If only the opposition would let the government negotiate against the possibility of No deal.   Armed with such formidable advantages we would have a decent chance of getting them to agree to free trade talks and no  new barriers on exit. As it is the EU sniffs weakness and continues to offer nothing in the hope that the opposition will do their work for them. As Mrs May used rightly to say, no deal is better than a bad deal. In this  case a lot better as what is on offer is a very bad deal.