What Theresa May Probably Won’t Say (but should)

In this post, I will try and sketch out a possible speech which the Prime Minister could give in Parliament in the immediate aftermath of MPs voting to reject the Withdrawal Agreement (WA) and Political Declaration regarding the UK’s future relationship with the EU. Personally, I believe that the WA is a good and conscientious attempt, in very difficult political circumstances, to achieve Brexit and many of its key aims while retaining a friendly and co-operative relationship with the EU. If MPs do, as Theresa May hopes and implores them to do, and look at what the impact would be if they were to reject the deal, I share her view that voting for the WA would be the best outcome. I appreciate that I am in a minority in that.

But, more pithily, I think what she is really saying to MPs of all persuasions on Brexit is “do you feel lucky, punk?”- if one is a supporter of leaving the EU on 29 March 2019 without a deal, would voting the WA down really lead to a government which could in practice be strong and stable (sic) enough under any leadership, to get through that form of Brexit? If one is a supporter of further renegotiation, a second referendum or some other means of “softening” Brexit or even stopping it, do you, on 11 December 2018 believe that there exists in Parliament today a government which can emerge and deliver that? Even if you do think either of those things, could you bear it if the alternative won out – as a No Deal supporter, would you bear the consequence of voting down the WA being there was No Brexit, as a supporter of No Brexit, would you bear the consequence of a No Deal Brexit? Or is the imperfect compromise on offer in the WA better (however reluctantly and privately you may voice this ahead of going through the lobbies) than the outcome you most hate? We will find out very soon. So, here it is, what I think the Prime Minister should say if (or when) Parliament rejects the WA.

“Mr Speaker, the job of Prime Minister requires many attributes. On a day like today, the two most significant are the ability to face the reality of uncomfortable truths and the ability to make hard choices about how to act when faced with them. The decision by this House to vote against the proposed Withdrawal Agreement and Political Declaration regarding the UK’s future relationship with the EU is one very uncomfortable truth for me and the Government I am honoured to lead. But it is not the only one which we must all in this place now face up to and it is not in itself a decision about the hard choice we must now all make about the future of the UK.

This Government has worked tirelessly to negotiate the Withdrawal Agreement over the last two years. I pay tribute to my Right Honourable friends, the current and former Secretaries of State for Exiting the EU, for their conscientious efforts in that regard, as I do also to the teams across Government and the Civil Service supporting their efforts. I  regret that some Honourable and Right Honourable friends, on leaving Government, have on occasion affected an unawareness of the uncomfortable truths they knew full well while in office.

When I became Prime Minister and started the negotiations for Brexit, I said, ‘Brexit means Brexit’ and that we must make a success of it. Since then, I have been clear that our approach to giving effect to the vote of the people of the UK in the 2016 referendum had to be to one which made a success of Brexit itself. Brexit is a process which will have a long impact on this nation whichever way it ultimately plays out. Nobody of conscience carrying out the role of Prime Minister could approach it as merely an instruction to leave the EU with no care for how that should in practice be effected and that is why there was an overwhelming majority in this House for seeking a negotiated agreement to exit the EU even among those who did not personally agree with the decision to do so. 

Throughout, the aims we have had were clear and based on the reasons for the majority having voted for the UK to leave the EU. We would be ending free movement of people with the EU and regaining full control over immigration. We would be ensuring a continued close trading relationship with the EU while being free to make trade deals with the wider world. We would be acting in the interests of the whole of the UK by ensuring that there was no hard border between the UK and Ireland and no differential treatment of the different nations of the UK. We would be ceasing to be subject to the European Court of Justice. We would be regaining those aspects of our sovereignty which as members of the EU we had agreed to pool with the other Member States. I believed and continue to believe that the Withdrawal Agreement which this House has rejected satisfied all of those aims and would have enabled the UK to leave the EU on 29 March 2019 in an orderly and beneficial manner, giving effect, as promised, to the outcome of the referendum. 

At each step of the process, this Government has worked tirelessly to maintain for itself and the country, the most flexibility possible to enable us to achieve the best available deal with the EU. This is why the Government contested the legal proceedings brought by Gina Miller. It is why it has at no stage done as some have recommended and dramatically flounced out of negotiations. It is also why we resisted to the fullest extent possible the application made to the Court of Justice regarding the unilateral revocability of the notification I made to the EU under Article 50. We have been steadfast in our commitment to negotiate an agreement to leave the EU even to the extent of having had to bear defeats along the way in defending that ideal and that approach.

I also said that ‘No Deal is better than a Bad Deal’. I continue to believe this. But the uncomfortable truth is that the deal which this House has decided to reject was not merely “not a Bad Deal” but a good deal which was far better for this country than No Deal. Another uncomfortable truth is that it is clear from the EU that it has no appetite for any further substantial negotiation and in particular that it will not negotiate any further concession or removal of the back stop. The reality which all in this House and the country must now face is that there is no other deal for the UK to exit the EU under. All alternative deals which may be conceived of, whether they involve seeking to join EFTA or some “different, social Europe” which never existed and is inconsistent with the nature of the EU must include provisions relating to the border between Northern Ireland and Ireland and so must either indefinitely extend the transition period or have a backstop provision. If there was one clear unifying thread for opposition to the Withdrawal Agreement from the debates before this House it is that any such indefinite backstop or extended transition would be unacceptable. It is therefore now impossible for any government to argue for any renegotiation of substance even if the EU were amenable to it because any form of new deal would founder on the same rocks. 

So, as Prime Minister, I am left with the uncomfortable truth that no deal for Brexit will be acceptable to this House. But there is one further uncomfortable truth that some of my Honourable and Right Honourable friends must also face up to. No Deal Brexit, leaving the EU without any agreement with the EU as to the UK’s future relationship, is also not acceptable to this House or to many in the country away from this place. 

Some have criticised me for not having planned for No Deal. They have breezily opined that it would be easy enough to manage, just as they thought that we could get an agreement with the EU just by turning up with a sunny disposition and a smile. However, as explained by my Right Honourable friend, the Secretary of State for Health and Social Care, even if we just look at the NHS, the immediate impact of a No Deal Brexit, however much contingency planning and mitigation were to be put in place, would be substantial shortages of essential medicines. My Right Honourable friend the Secretary of State for Transport has outlined the likelihood of at best 6 months of logjam at our sea ports. Some in this House may look to Venezuela for inspiration for another way of doing things and bearing material privations in basic goods for some greater ideological aim, but I cannot in conscience say that I do. The uncomfortable truth is that the reality of No Deal Brexit is not a reality that most ordinary people in the country would want to have to bear. And nor should they. This is not World War 2. There is no murderous dictatorship raining bombs on our civilian population to unify ordinary people in the desire to dig for victory and sacrifice their health and services to winning the war. This is not Project Fear but reality. 

This then leaves me with a hard choice. In the circumstances, an easy choice would be to conduct my own personal Brexit and leave this to someone else to deal with. That would be cowardly. I hope that it is clear that I am no coward.

Another easy choice would be to call for another referendum. But that would merely prolong things and leave the country in a state of uncertainty. I would hope that in a second referendum, the country would agree that the Withdrawal Agreement is, for the reasons I have given many times to this House and in the country, the best and only way to secure a Brexit which provides for the bright future the country deserves. But were they to do so, there is no guarantee that this House, where the nation’s practical sovereignty resides would agree. 

Therefore, with regret, I propose that I should exercise the power still available to the UK as a sovereign nation, and in the interests of all, notify the EU of our revocation of the notice given under Article 50. In order to do this expeditiously, my Right Honourable friend, the Secretary of State for Exiting the EU will forthwith introduce before this House a Bill which will provide for a statutory basis for that decision. Further Bills will subsequently be introduced to reverse the legislation for Brexit already enacted. In addition, my Right Honourable friend, the Home Secretary, will publish a White Paper on the future management of migration to the UK within the context of the UK continuing to be a Member State of the EU.”

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Data Privacy and Brexit

  1. The UK is due to leave the EU on 29 March 2019, whereupon, in the absence of any other agreement, all EU laws, including GDPR, will cease to apply as a matter of EU law. At a purely domestic UK level however, all currently applicable EU laws, including GDPR will then have been incorporated into UK law by the European Union (Withdrawal) Act 2018. In addition, GDPR has been implemented in the UK by the Data Protection Act 2018 (“DPA”) which is expressly stated to be read alongside GDPR.
  2. The clear intention of the DPA, as stated in its explanatory notes is to set new standards for protecting personal data “in accordance with recent EU data protection laws”. So, after 29 March 2019, at least from a domestic UK law perspective, GDPR will apply to activities in the UK, including transfers of personal data from the UK to countries remaining in the EEA.
  3. However, what is less clear, is how transfers of personal data from the EEA to the UK will be dealt with and of course this is of practical importance to multinational businesses with substantial continuing operations and interests elsewhere in the EU. After Brexit, although the UK’s data privacy laws will be substantively similar to those in the EU, the UK will technically be considered a third country and so require a decision from the European Commission that its protections are “adequate” to enable the continuation of the status quo for transfers to the UK. Although on the face of it, this should be a formality due to the DPA incorporating GDPR, the political and institutional context of the broader relationship between the UK and the residual EU members (“rEU”) may complicate matters. At the very least, there may be a degree of uncertainty between the date of Brexit and the date on which the Commission issues any decision on adequacy.
  4. That said, from a practical perspective, the most likely approach would be that the Commission, the CJEU, domestic EU regulators and Courts, would find it uncontroversial to treat transfers to the UK pending an adequacy decision as being in any event ones which were to a third country with adequate protections, at least in terms of prioritising investigations of complaints. This may provide some degree of comfort, particularly when combined with companies’ Binding Corporate Rules (“BCRs”) if they have been approved by that time (the process in the UK for approval involves notification to ICO which reviews and approves from a UK perspective and then forwards to the regulators in two other EU Member States for their approval – if a company has not already notified its BCRs to ICO it is highly unlikely that the process would be capable of being completed prior to 29 March 2019).
  5. This is nevertheless, dependent to the progress and nature of the continuing negotiations between the UK and the EU around the terms of Brexit and the future relationship between the UK and rEU. Although at present there does not seem to be any intention by the current government to reach an agreement which would involve departing from the UK applying GDPR, whether by legal obligation or as a voluntary matter, until that position is crystallised, there is uncertainty and therefore risk. The more antagonistic an approach the UK takes over the coming months, the greater the uncertainty on this issue and in particular, the lower the chances that the Commission would be inclined to reach a quick decision on matters like making a declaration of adequacy in the UK’s favour (or that the EU national privacy regulators would feel any need to attempt to find UK companies’ BCRs compliant ahead of Brexit or expedite doing so[1]).
  6. Another issue worth noting is that on Brexit, the UK, in the absence of other agreement, will not be party to the EU-US Privacy Shield. This may cause some operational difficulties if a company exports data collected within the EU which was transferred to the UK prior to further processing in the US, although this would be avoidable by ensuring that such transfers, if hitherto reliant on the privacy shield were directly from the EU to US without going via the UK. From a UK perspective, while the privacy shield may not technically apply, it is not likely that ICO would consider transfers from the UK to the US to breach DPA if prior to 29 March 2019 they would have benefited from the privacy shield.
  7. There are five broad scenarios for the future relationship with the EU which will have differing impacts from a data privacy perspective. The account below is by necessity somewhat speculative as the actual direction and content of what is negotiated and ultimately agreed between the UK and EU is evolving and may not fully come to light until very close to the date of Brexit itself.
    1. Reversing the decision to leave the EU
    2. Continuing to remain a member of the EEA and/or rejoining EFTA and negotiating some UK-specific derogations (sometimes referred to as “Norway+”)
    3. An agreement with the EU largely based on the approach set out in the government’s White Paper on the future relationship with the EU
    4. A looser agreement with the EU, in particular without any form of “common rule book” which would preserve EU laws in the UK in a way which would be formally recognised by the EU (sometimes referred to as “Canada+++”)
    5. No deal – no ongoing legal or treaty obligations towards the EU at all
  8. Scenarios a and b do not raise any significant data privacy issues as they both involve keeping the UK within the scope of GDPR directly and not being a third country. At present neither scenario looks particularly likely and both would involve significant political change within the UK including the possibility of a change of government, a further referendum and/or a General Election. The uncertainties that would arise from these political changes are such that while the final outcome of these scenarios would be to retain the current status quo in respect of data privacy, the impact of data privacy as a business risk would be likely to be minor compared to the other business risks posed by such a period of political upheaval.
  9. Scenario c is the government’s currently preferred position, although as with much of the debate around Brexit there are competing reports as to how acceptable it might be to the EU and what changes to the White Paper might be required by the EU or as concessions in Parliament to those who do not agree with the government line (whether to remove elements of the White Paper or to expand its scope). In general terms, the aim of the White Paper’s approach is to retain a common rule book with the EU in relation to trade in goods. For those matters covered by such a common rule book, there would by definition be agreement from the EU that the pre-existing UK position would be compliant with EU laws. It is not obvious from the White Paper where this leaves data privacy and GDPR.
  10. From a technical legal perspective, the common rule book, if it “would cover only those rules necessary to provide for frictionless trade at the border” (White Paper Section 1.2.3 para 25) would not extend to GDPR and need not cover any EU laws beyond those which on their face have a Treaty Base of any of Articles 34-37 TFEU (the provisions establishing free movement of goods other than those establishing the Customs Union, which current UK policy is to no longer be bound by). Data privacy is dealt with by Article 16 TFEU, which is the stated Treaty Base for GDPR and so would not be included in that narrow conception of the common rule book. It is most likely that if covered at all by the agreement between the UK and EU, GDPR would be treated as part of the provisions relating to services and “digital” trade which the White Paper proposes will involve new arrangements which will mean “the UK and EU will not have current levels of access to each other’s markets” (White Paper Section 1.3 para 48).
  11. That leaves open the possibility that GDPR might not be included in the future arrangements or even that the UK may decide to have a different data privacy regime, although that does not look like the approach the current government will pursue given the way in which the DPA was written and its stated intent. It is most likely that the future arrangements under this approach would either incorporate GDPR as is to provide certainty in relation to digital and services trade between the UK and EU without the need for a separate adequacy finding or that they would be silent on it but the general atmosphere would be one in which obtaining an adequacy decision would be considered by both EU and UK to be routine based on current UK legislation. As a broadly non-confrontational negotiation stance it would also be likely to be neutral with respect to the progress of approval by EU regulators of a UK company’s BCRs.
  12. Scenarios d and e would both require the UK to rely upon an adequacy finding and/or for UK companies’ approval of its BCRs. Neither inherently alters the underlying substance of existing UK law and its implementation of GDPR but as both are more potentially confrontational they may raise the risk of delay in obtaining those decisions or even (if the discussions become particularly acrimonious) grounds arising for refusing them. For example, if scenario e of “No Deal” transpired and there were threats from either side of any form of trade war, given the importance of personal data in many businesses, restricting the UK or UK companies’ ability to receive and process data from rEU may be considered as a valid tactic in such a dispute.
  13. Escalation of matters this far is probably not very likely but if it did occur may require more significant mitigations to be adopted. For example, it might be prudent in these circumstances to conduct a detailed audit of the actual data flows within a company group to identify the extent to which it was operationally essential and unavoidable to transfer personal data from rEU to the UK and whether this could be worked around (eg by dealing with more processing in-country and using third party processors in rEU rather than the UK, if transfers out of rEU are needed, to look at whether there are other third countries which have more settled relations with the EU on privacy etc).
  14. A more likely outcome is that scenario d would require, to be realistic, maintaining good relations with the EU (eg if the government wishes to get Canada+++ it will want to be as friendly in its discussions with the EU as Canada is). Scenario e could also be achieved without confrontation, albeit that most of its current proponents seem to be otherwise inclined. In both of these situations, a longer term risk might be that the UK decides that the GDPR framework is too restrictive a way of achieving its aims and looks to create an alternative approach (eg California has recently enacted data privacy laws focusing on specific practices by businesses like selling consumer data rather than processing per se, or this suggestion that the UK should change from a blanket prohibition on processing without a lawful basis to prohibiting particularly egregious types of processing while not regulating processing generally) . This would be a risk as a change to domestic UK law from DPA would impact any previous finding of adequacy of UK protections and so would push UK companies back to relying on their BCRs and model clauses (etc) unless the UK were able to persuade the Commission that its new approach remained adequate.

 

[1] The Government has published a guidance note on the anticipated effect on data protection in the event of “No Deal”. It states that while preliminary discussions about an adequacy assessment have taken place, the Commission has not indicated a timetable and has stated that it cannot take an adequacy decision until after the UK has left the EU and become a “third country”.

The Lion The Witch and The Wardrobe- West Yorkshire Playhouse 29/11/17

For his 11th birthday treat, Oli’s mum and I took him to see the first night of the production of The Lion, the Witch and the Wardrobe (LWW for short from now on) at the West Yorkshire Playhouse. We are reading through the books at the moment (about half way through The Last Battle right now) and have enjoyed them. They were a favourite of mine as a child and I was surprised at how much Oli was enjoying them even though he tends to be resistant to religion and prefers, as Dawkins put it, the magic of reality. The allegorical nature of the books is clear enough that even Oli volunteered that “Aslan’s Jesus, right?” but I think now seems less trowelled on than it might have in the past when the detail of Scripture was so much more embedded in standard cultural understanding at primary school age – there’s probably a bible story or three in every one of the books but not knowing the Bible as well as previous generations means that we can just enjoy them as stories.

That said, LWW is pretty transparent in its biblical themes and I think this is where maybe all productions fall down. What may be apparent in the imaginations of readers based on their knowledge of those themes and their conflicts is hard to portray visually without suffering from the preachiness which CS Lewis admirably avoided in the books (apart from in his treatment of the admittedly priggish Eustace Scrubb in The Voyage of the Dawn Treader). Certainly all the TV adaptations I’ve seen have tended to go a bit mushy at Aslan and made the talking beasts a bit twee.

There was a lot that was excellent in the play, particularly the impressively acrobatic rope work of the players, the whirling choreography of the wardrobe doors, the use of sheets to simulate the motion of the White Witch’s sledge through snowbound Narnia, and the way those sheets then rose up to give the effect of the Witch being a giant (in the Magician’s Nephew we learn that she is well over 7 foot tall) standing atop a mountain of snow, commanding her minions.

Less good was the extended start cataloguing the journey of the Pevensie children as they are evacuated. Perhaps a modern audience needs more information about why the children are being sent away from their family to live in the country than ones at the time the books were written, shortly after the end of World War 2, but this whole section took up nearly 20 minutes of what was already not too far short of three hours of stage time. The introduction of the evacuation co-ordinator’s name, Mrs Chutney, had Oli and his mum in unintended hysterics and although the effect of having the children sit as if in a train while a puppeteered model of a train went over and around, was a pleasing one, the whole section just seemed too long. It also descended into cliche as the children were left at the station amid mounting anxiety as last to be collected to go to their new home. Dramatically the main importance of this was to allow Peter, ahead of battle, to say that yes, he did know of war and loss. Personally, I think they could have taken the time to drum home quite how beastly Edmund is after the first couple of trips into the Wardrobe so that his redemption was also clearer rather than just coming from fear at the Queen revealing herself to him to be a Witch.

Neither Oli nor I could fathom the decision to make Professor Kirke into a whimsical mad professor. His character in the book is more distantly amused but serious-minded in his use of Occam’s Razor to persuade the older children to believe Lucy. While LWW was not written with its back story already in CS Lewis’s mind, today we have the advantage of that back story in The Magician’s Nephew, so we have a better feel for what Professor Kirke might have been like and his knowledge of Narnia itself.

Other points which jarred were the occasional switches into song routines. These were well done but gave the impression that the production couldn’t make up its mind whether it was a play set around Christmas or a pantomime without jokes. Not quite as jarring as the alternative pantomime we went to a few years ago at the WYP where the actors inadvertently set up a “he’s behind you” and had to sternly admonish the audience of young children “not in this play”. The Pevensies seemed somewhat miscast or at least, Peter and Susan were underwritten, so that it wasn’t clear what the hierarchy of the children was. Obviously Lucy and Edmund are the main children in terms of the action, but the effect here was to make Peter’s elevation to being the High King implausible.

One of the Witch’s minions also rather over-acted to build up her part and this detracted from the impressive malevolence and physical prowess of her chief of police, the wolf Maugrim. The appearance of Father Christmas was simply bizarrely done, I can imagine only because of an attempt to avoid his character being too much the Coca Cola version, but there had not been enough made of it being always winter and never Christmas to make real sense of in the play, and his gifts seemed peculiar rather than important as they are in the book where by the time of his appearance all the children knew they were soon to be called into battle, possibly against their own brother. In the book Peter transforms from boy to future High King on being given his sword and shield.

The physical spectacle of Aslan was very impressive- he came in under a large Chinese Dragon type of Lion, carried and animated by half a dozen people. The cruelty of his humiliation on the Stone Table was complete and his shaving was neatly simulated by the casting off of the long fur coat the actor wore. But, unfortunately, much of this was undone by some very wooden dialogue. When Aslan invites the children to look to the horizon to Cair Paravel and Lucy says “it looks like a castle”, Aslan’s response of “It is a castle” seems banal. When he is resurrected and Susan cries “but we thought you were dead”, Aslan’s “It appears not” came across as sarcastic if anything. While the final scene in a Narnia transformed by flowers gave another opportunity for ropework and trapeze swings for the four children, it gave no sign that the four were about to go on to rule Narnia from the four thrones at Cair Paravel as wise, brave and kind monarchs for the next 15 years, such was the lack of development of their characters.

However, these are criticisms based on having spent the last couple of months immersed in the books with Oli. Despite them, we enjoyed the show for its spectacle, even if it missed much of the depth and nuance of the original LWW book. Those with less familiarity with the story have found much less to criticise and more to praise. It is running until 27th January 2018 and it would make a very good alternative to a pantomime for a family theatre outing. I’d also recommend reading the series of books as the other six beyond LWW seem to be largely forgotten these days but have exciting and varied stories. Although if the Calormenes and their god Tash are taken for representations of Islam perhaps I can see why they have gone out of fashion…