Winter Fuel Payment
Theresa May's Brexit
Life Before Brexit
2017 is turning out to be Theresa May’s ‘Annus Horribilis’.
When Theresa May attempted to use EU and UK Citizens as a bargaining chip for Brexit negotiations, it proved to be her first major blunder. Letting it be known at such an early stage as she did, that: ‘we will guarantee the rights of EU Citizens living in the UK, if the EU will guarantee the rights of UK Citizens living in the EU’, did not go down well within the EU27 Member States.
Theresa May has constantly reminded us of her Lancaster House speech on 17 January. In that she said: “We want to guarantee the rights of EU citizens who are already living in Britain, and the rights of British nationals in other member states, as early as we can.” and went on to say: “The same rules and laws will apply on the day after Brexit as they did before.” For most of those 3 million plus who were affected, the words ‘the day after as the day before’ was an important pledge.
Many now believe that the Article 50 letter of 29 March 2017, triggered the process of Brexit before Theresa May and her Government were ready to go ahead in the best interests of the whole country. In fact, there is a growing opinion that this was a serious error of judgement forced on Theresa May by the hard-line Brexiteers on the Parliamentary backbenches, as well as those in the Cabinet.
The EU Proposal
On Saturday 29 April 2017, the EU27 unanimously agree the Guidelines which defined the framework for negotiations under Article 50 TEU and set out the overall positions and principles that the European Union wanted to pursue throughout the negotiation.
On Citizens’ Rights Paragraph 8 of the 28 paragraph document states:
'The right for every EU citizen, and of his or her family members, to live, to work or to study in any EU Member State is a fundamental aspect of the European Union. Along with other rights provided under EU law, it has shaped the lives and choices of millions of people. Agreeing reciprocal guarantees to safeguard the status and rights derived from EU law at the date of withdrawal of EU and UK citizens, and their families, affected by the United Kingdom's withdrawal from the Union will be the first priority for the negotiations. Such guarantees must be effective, enforceable, non-discriminatory and comprehensive, including the right to acquire permanent residence after a continuous period of five years of legal residence. Citizens should be able to exercise their rights through smooth and simple administrative procedures.'
Such guarantees were vital for us all. The whole of the EU negotiating team, that is Michel Barnier, for the Commission, and Guy Verhofstadt, for the European Parliament emphasised that Citizens’ Rights was their first priority.
Those Guidelines clearly state that we should hold on, for the rest of our lives, to all our acquired individual citizenship rights after Brexit. We believe that a deal on this could have, and should have, been reached at the earliest possible moment in the negotiating process.
There is, however, one glaring hole in those Guidelines, which means that none of this might happen. We need all sides to agree to ring-fence a deal along those lines so that it will continue to stand even if there is no wider agreement covering all other matters, or if this is delayed, or, horror of horrors, the dreaded ‘no deal’ scenario is reached!
The UK Response
However, it was not until 26 June 2017 that the UK Government produced their detailed proposals. In an unusual approach to a negotiation, they completely ignored the offer made by the EU 54 days earlier, and simply made their own offer; even more bizarrely, they stated it was conditional upon the EU reciprocating in a number of respects which they knew the EU had already agreed.
‘Safeguarding the Position of EU Citizens Living in the UK and UK Nationals Living in the EU’ was the title of the UK’s 23-page Position Paper which eventually saw the light of day. In the House of Commons, when introducing the safeguarding document, Theresa May described it as a ‘fair and serious’ offer, but she then demanded that the EU should reciprocate the proposals, in the interests of UK Citizens in the EU.
Furthermore, the UK made it clear from the outset that they regarded even the Citizens Rights chapter as a matter for haggling as would be the case in any standard commercial negotiation. They started by making a low offer in what must have been the certain knowledge that they would have to raise it. They have indeed since made a number of concessions, but they still have a long way to go. It has become clear that this was a deliberate David Davis tactic, which he has used to convince MPs, particularly his Brexiteer colleagues, that he is being magnanimous, whilst, at the same time, portraying the EU as intransigent.
Unfortunately, the EU’s reaction to this approach, appears to us, to have been to harden its line. It drew an artificial and erroneous distinction between the rights of citizens covered by the Withdrawal Agreement (“WA”), and adopted a rigid and inflexible approach to the application of EU laws to the current unprecedented situation.
Brexit - 18 Months on
18 April, became what could well prove to be Theresa May’s biggest ever blunder. She called a ‘snap’ General Election for June 8. In her announcement she referred the calling of the Election ‘to make a success of Brexit’, and spoke of ‘strengthening her mandate’. She failed! And, six valuable negotiating weeks were lost!
The Conservatives remained the largest Party, but the loss of the overall majority won by David Cameron, unquestionably weakened her position, and brought about the need to form an alliance with Northern Ireland’s DUP, in order to maintain an overall majority in the House of Commons.
When the Brexit negotiations entered a deadlocked position, Theresa May quickly organised a major intervention with a new speech in Florence on 22 September.
It followed on much of the Lancaster House speech but contained some new proposals which generated important supportive reactions from EU leaders.
By focussing on the 600,000 Italians living in the UK, Theresa May once more made a strong commitment – she said: ‘it has been, and remains, one of my first goals in this negotiation to ensure that you can carry on living your lives as before’.
Once again, a powerful message, but for two things. The Position Paper published by David Davis at the end of June, completely undermined what she was saying, unless …. there was something new in the air. Three days after her speech, we saw the evidence that there was nothing new, and if anything, the Position Paper on Safeguarding Citizens’ Rights had become a major stumbling block. So, despite the plaudits the Florence speech received, David Davis was in fact, betraying his Prime Minister.
We have some alarming evidence which provides proof of the way in which David Davis was undermining the talks, and his Leader. One of the legal advisors to the British in Europe Coalition, held a meeting with one of the EU27 Brexit Coordinators on 2 October. Below is a single extract from the report of that meeting:
After a difficult summer, they (the EU27) were quite positive after May’s Florence speech. They appreciated the movement on direct effect, the transition period and the language on the financial settlement and saw these as important concessions on the part of the UK. However, R4 then started and the UK negotiators turned up in Brussels with a different set of negotiating positions to Florence. When the EU27 asked, “but what about the Florence speech?” they were told, “Well, what Theresa May actually meant by that was xxx.” This caused “huge disappointment.”
The report does not expand on what xxx was, but it indicates that it varied markedly from that which the EU 27 thought Mrs May had said. So, it was that the report indicated ‘huge disappointment’. It also indicates that David Davis had given his own gloss on the speech. In effect he put words into Mrs. May's mouth.
Here is Roger Boaden’s personal observation of what that extract tells us:
‘In the early 70s, I worked closely with Edward Heath, and thereby had numerous contacts with Ministers and Government Departments. And from 1979 until 1994, when I worked closely with Margaret Thatcher, and after her departure, having occasional contacts with John Major, one thing stood out for me. All Ministers and the whole of Whitehall respected, and acted upon, the word of the Prime Minister of the day, either directly, or as from No.10. In those years I never once saw, or heard, of anyone opposing or contradicting anything from the PM or No.10.’
‘The report of the meeting with one of the EU27 Brexit Coordinators, tells me that more than 100 civil servants from the Department for Exiting the EU, went into negotiating rooms in Brussels, and told their EU counterparts; ‘well, what Theresa May actually meant by that was ….’. Those civil servants would not have done that on their own initiative. They were instructed that that was the line they had to follow. Only one person had the overall authority to do that - David Davis!’
‘Given that Round 4 of the negotiations began only three days after Theresa May’s dash to Florence, the ‘different set of negotiating positions’ adopted by the DExEU team, illustrates that Theresa May has no authority, and an arch Brexiteer is running the show. Draw your own conclusions, but I know what it looks like!’
The position Paper continues to be the major stumbling block in the negotiations on Citizens’ Rights. Even today, the Home Office website, (see: http://bit.ly/2iODzkl), which gives details of how to apply for Permanent Residence in the UK, and contains these chilling words:
‘Your residence card won’t be valid after the UK leaves the EU.’
Can there be any wonder that every EU Citizen working and living in the UK is afraid for the future, when on the one hand they see the UK Government bringing to an end at midnight on 29 March 2019 their ‘right to residence’, and then forcing them to make a new application for something to be called ‘Settled Status’?
The leaked document of 5 September
Then of course, we must not overlook the ‘leaked’ 82-page Home Office document on Immigration, which was dated August, and leaked on 5 September to The Guardian newspaper.
We have studied that document in detail, and are convinced that this was not a ‘speculative’ draft, but was in fact, the final draft for the next DExEU Position Paper, this time on the complete issue of immigration.
The so-called Home Office document contained the kind of language which will have provided proof for all EU27 observers that the UK was fully prepared to ride roughshod over Citizens’ Rights in the interests of establishing an immigration policy which could stop for ever, the possibility of penniless Bulgarians and Romanians arriving at Dover, hoping to find work. As if the Position Paper on Safeguarding Rights did not do enough damage, the leaked document confirmed all the worst fears, that the Home Office has in effect ‘gone native’!
It almost seems as if the Home Office was saying: ‘We are so totally fed up with the stupid rules, regulations and directives from the EU, which we have had to obey for 45 years, and which have allowed unfettered, and unchecked immigration of anyone claiming to be an EU Citizen. Now we are going to show you how it should be done, we are going to show you the British way’.
And that is the final confirmation that the Brexit negotiations are deadlocked and stalled because of the Position Paper from late June, and the leaked document at the beginning of September. We now believe that these were part of tactics devised by David Davis, in order to prove to MPs that he was making concessions by moving from his extreme starting point towards the proposals from Michel Barnier.
Yes, some excellent progress has been agreed on many smaller points, but until the UK Government removes the threat they have in effect issued to EU Citizens in the UK, this part of the negotiations is doomed to result in damaging the rights of all concerned. Look carefully at what Theresa May said at Lancaster House and in Florence. If her words were genuine, then David Davis is guilty of a major betrayal, and he looks destined to finally deliver the Brexiteers' dream.
Of course, such statements by us, are bound to be classified by Brexiteers as miserable ‘Remoaner’ delaying tactics. But, we are concerned with examining the truth, and just as with our case over the removal of the Winter Fuel Payment, when Iain Duncan Smith lied, cheated, fiddled figures, exaggerated his own Department’s statistics, and deliberately misled Parliament, it looks to us that David Davis is following that example.
Examine the timeline facts:
7 January 2017 - Theresa May’s speech at Lancaster House, in which she stated: ‘The same rules and laws will apply on the day after Brexit as they did before.’
29 March 2017 - Article 50 Letter from Theresa May in which she reiterated much of the Lancaster House speech.
28 April 2017 - Proposals from the EU Commission with a very clear statement on Citizens’ Rights as the first priority for the negotiations.
26 June 2017 - Publication of Citizens’ Rights Position Paper, which, in effect, said forget the existing rights, we propose a completely new immigration policy for EU Citizens. The Right to Reside will cease, and all EU Citizens will have to apply for the new status of ‘Settled Status’, that is each immediate family member will have two years to make a new application, with extended family members being treated like new third country immigrants.
22 September 2017 - Theresa May speech in Florence stating:
‘…. ensure that you can carry on living your lives as before’
Thereafter - as the EU position hardened, it became clear that the tactics adopted by David Davis have spectacularly failed, since the negotiations have stalled, with the adoption of ‘insufficient progress being made’.
7 November 2017 - David Davis publishes a new document - TECHNICAL NOTE: CITIZENS’ RIGHTS - ADMINISTRATIVE PROCEDURES IN THE UK
This not only reiterates the fact that EU Citizens will be treated as 'third-country migrants', but confirms the detail of the application process to be followed in order to obtain 'Settled Status'. Yes, it speaks of a 'streamlined process', but the fact that it was published at all caused great consternation in Brussels, because they saw it as a hardening of the UK position, which confirmed all the worst fears which had started with the ill-fated No.10 Dinner months before.
It is clear that Theresa May is not to blame, such was the praise and support for her Florence speech from EU Leaders. Only one person ‘carries the can’ for the appalling state of these negotiations, with EUinUK, and UKinEU Citizens being ‘piggy in the middle’.
It would all have been so easy to have stepped up and confirmed acceptance of the original EU position. But, no, this Brexiteer in charge has shown a steely determination not only to expunge everything which is associated with Europe, but as the saying goes, if it says Europe on the tin, then crush the tin!
Finally, we need to add a word about the so-called Great Repeal Bill, now known as the EU (Withdrawal) Bill, which is slowly going through the Committee stages in the House of Commons.
19 Conservative MPs, several of them prominent lawyers, have been pilloried by The Telegraph and The Daily Mail, for their efforts to correct many of the flaws in this Bill. They have been branded as 'Mutineers', and one Anna Soubry has received 3 death threats. None of them can be described as wanting to reverse Brexit, and all have said so, many times. They simply want to prevent the process of bringing back control becoming control for the Executive and not for Parliament.
We believe the real Mutineers are 31 MPs who are heavily involved with an extremely well-funded body called 'Leave Means Leave'. They all hold positions within that organisation which regularly calls on Theresa May to pull out of the negotiations. They do so because they are all seeking a clean break, and it seems, will stop at nothing to achieve it, aided and abetted by very rich benefactors.