Labour on Brexit ’18

And so onto the Brexit debate. Both sides wanted to ensure that there was a single motion, and the composite meeting had agreed a single set of words. This topic was supported by more organisations than any topic ever, with over 100 supporting the positions of either the People’s Vote or Another Europe is Possible. CLPD had circulated a set of words, which reinforced Labour’s commitment to the six tests, and were supported by considerably less organisations. To some extent we remainers have won the debate in the Labour Party; there were no motions to leave no matter what and the six tests mean both the customs union and single market are to be part of Labour’s deal.

So Labour will vote against any deal made by the Government; what happens then? The best result will be a General Election, but if that cannot be won, then Labour will campaign for a public vote and consider placing remain on the ballot. Here’s Kier Starmer’s speech.

 

Both John McDonnell and others have suggested that we will not consider Remain, but if neither the Tories nor Labour can negotiate a deal then we must and the composite establishes it as policy, or re-establishes it as the 2016 Conference made clear that if the Tory deal wasn’t good enough then Labour would seek a second mandate, an election, referendum or a parliamentary vote to remain. See also Labour’s New Brexit, from 2016 on this blog.

I sought to speak in this debate but wasn’t called. Some of the points I wanted to make were obvious, that a Tory brexit would be a catastrophe, that our policy was based on the six tests and that remain was an option as we would seek a second mandate. I would have argued that you can’t respect a referendum with all the cheating, illegalities and lying but one can respect the leave voters. In fact it’s this respect that leads me to ask if the deal on the table is what they want. I’d expect every Trade Unionist in the room to want to ensure that a deal satisfied those who had given the mandate. I would have made the point that Jeremy’s 7/10 score for the EU is right, that if we stay we need some reforms for the whole EU, and we would be welcome for it, and that much of what’s wrong with the EU is the outcome of policy debates and not a systemic quality of the EU. Labour’s manifesto even on Brexit is a radical promise for government that will allow is to work with our shell shocked sister parties and allies in the EU.

I wasn’t going to use the “Pointless or Catastrophe” line, it wasn’t the right debate, but I consider it a fabulous summing up of the choice between a soft brexit or hard brexit.

I have posted the six tests and the words of the motion below.

ooOOOoo

Starmer’s six tests for the Brexit deal are:

  1. Does it ensure a strong and collaborative future relationship with the EU?
  2. Does it deliver the “exact same benefits” as we currently have as members of the Single Market and Customs Union?
  3. Does it ensure the fair management of migration in the interests of the economy and communities?
  4. Does it defend rights and protections and prevent a race to the bottom?
  5. Does it protect national security and our capacity to tackle cross-border crime?
  6. Does it deliver for all regions and nations of the UK?

Composite 5 – Brexit

Conference welcomes Jeremy Corbyn’s determined efforts to hold the Tories to account for their disastrous negotiations. Conference accepts that the public voted to leave the EU, but when people voted to ‘take back control’ they were
not voting for fewer rights, economic chaos or to risk jobs. Conference notes the warning made by Jaguar Land Rover on 11.9.18, that without the right deal in place, tens of thousands of jobs there would be put at risk.

Conference notes that workers in industries across the economy in ports, food, pharmaceuticals, manufacturing, energy, chemicals, in our public services and beyond are worried about the impact of a hard Brexit on livelihoods and communities.

Conference believes we need a relationship with the EU that guarantees full participation in the Single Market. The Brexit deal being pursued by Theresa May is a threat to jobs, freedom of movement, peace in Northern Ireland and the NHS. Tory Brexit means a future of dodgy trade deals and American-style deregulation, undermining our rights, freedoms and prosperity. This binds the hands of future Labour governments, making it much harder for us to deliver on our promises.

Conference notes Labour has set six robust tests for the final Brexit deal. Conference believes Labour MPs must vote against any Tory deal failing to meet these tests in full.

Conference also believes a no-deal Brexit should be rejected as a viable option and calls upon Labour MPs to vigorously oppose any attempt by this Government to deliver a no-deal outcome. Conference notes that when trade unions have a mandate to negotiate a deal for their members, the final deal is accepted or rejected by the membership. Conference does not believe that such important negotiations should be left to government ministers who are more concerned with self-preservation and ideology than household bills and wages.

Stagnant wages, crumbling services and the housing crisis are being exacerbated by the government and employers making the rich richer at working people’s expense, and not immigration.

Conference declares solidarity and common cause with all progressive and socialist forces confronting the rising tide of neo-fascism, xenophobia, nationalism and right wing populism in Europe.

Conference resolves to reaffirm the Labour Party’s commitment to the Good Friday Agreement of 1998 including no hard border in Ireland. Conference believes that there is no satisfactory technological solution that is compliant with the Good Friday Agreement and resolves to oppose any Brexit deal that would see the restoration of a border on the island of Ireland in any form for goods, services or people.

Should Parliament vote down a Tory Brexit deal or the talks end in no-deal, Conference believes this would constitute a loss of confidence in the Government. In these circumstances, the best outcome for the country is an immediate General Election that can sweep the Tories from power.

If we cannot get a general election Labour must support all options remaining on the table, including campaigning for a public vote. If the Government is confident in negotiating a deal that working people, our economy and communities will benefit from they should not be afraid to put that deal to the public.

This should be the first step in a Europe-wide struggle for levelling-up of living standards, rights and services and democratisation of European institutions Labour will form a radical government; taxing the rich to fund better public services, expanding common ownership, abolishing anti-union laws and engaging in massive public investment. …

Leaving our opt-outs behind

It’s one of my fears over Brexit that the loonies will take us into a transition period without an agreement on anything other than the withdrawal terms, about which they are still haggling, and that should we change our minds, we’ll have to reapply and lose our opt-outs, which include Schengen (common borders), the stability & growth pact’s enforcement regime, a promise to join the Euro (we don’t have to) and our famous rebate on contributions. In transition, we lose our Council seat with its veto, our Commission seat, our MEPs and our Judges on the Court. We definitely become rule takers. …

Pointlessness or catastrophe

I don’t always agree with Seb Dance MEP, but his categorisation of Brexit  as having a choice between pointlessness and catastrophe he’s bang on.


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Crime & Brexit

As I said, earlier this week I attended a session of the House of Commons Home Affairs Committee. This was called to take evidence on the impact of Brexit as it impacted Europol and the European Arrest Warrant.

I have published a link to the video recording of the event but I took some notes and wanted to share them with you. They interviewed Sir Robert Wainright, a former Head of Europol and Claude Moraes MEP, Chair of the European Parliament’s Committee on Civil Liberties, Justice and Home Affairs (LIBE) and Camino Mortera-Martinez, Research Fellow and Brussels Representative, Centre for European Reform. If we leave, we are unlikely to get a better agreement than Denmark which has withdrawn from Europol and unless we accept the Court of Justice of the European Union, we will be excluded from the European Arrest Warrant. Moraes made the point that the UK’s Investigatory Powers Act may inhibit a data sharing adequacy finding which may lead to a restrivtion on access to Europol’s databases. …  …

On Adequacy after Brexit

I attended the Home Affairs Committee on Europol and the European Arrest Warrant yesterday. Don’t say I don’t know how to have a good time. One of the members, suggested that since we have passed a new Data Protection Law, we will be compliant from Day 1, or Day 0 as we engineers call it. I think  not and here’s why. In short, the Government say they’ve implemented the GDPR into British Law, but once we’re a third country, it’s the Commission that has the last word, and they have questions we need to answer. …

Firstly, I don’t think the Commission would act that quickly and they’d need to issue an adequacy decision and there are four questions of substance that the Commission would need to consider.

  1. The European Data Protection Supervisory Board’s predecessor, the Article 29 Working Party and the Commission had outstanding issues with the UK’s implementation of 95 Directive, to the extent that it seems the Commission had started infraction proceedings. (I find it very hard to get explicit data on this, and much of what is available reads like conspiracy theories, but the most vocal campaigner published his views in the Register, here. The author argues that the infraction process proposes to carry forward to the 2018 DPA. ) The author checkpointed his findings in a 2011 blog article, called “European Commission explains why UK’s Data Protection Act is deficient”, he also points to an Out-law Article, “Europe claims UK botched one third of Data Protection Directive” 17 Sep 2007.
  2. The House of Lords Committee on Data Protection found that as a 3rd Country we may be required to meet a higher standard than as a member state. (This is because we will lose the powers granted to member states under Article 23 Restrictions of the GDPR. These powers relate to the exemption of national security organisations and the courts (and others) from some aspects of the GDPR). This is why there is concern with the Investigatory Powers Act, already declared deficient by the UK Courts and the DPA immigration service exception will jeopardise any attempt to obtain an adequacy finding. i.e. a member state might be able to have these laws but a 3rd country may not.
  3. The loss of member state status and privilege means that our intelligence sharing arrangements with the US, a country which still has the death penalty, and operates under a different military legal doctrine may be deemed to be a critical problem in granting adequacy. (We should note that Tom Watson MP, obtained a barrister’s opinion on the legality of sharing intelligence and wrote to the Prime Minister at the time on the legality of this activity; it was taken up by Rights Watch who are pursuing this through the courts.)
  4. Depending on the withdrawal agreement, and it seems that no-one is thinking about this, we may cease to be covered by the US Privacy Shield agreement, and thus will be prohibited from transferring EU citizens personal data to the USA, and they to us. (Actually prohibited is a bit strong, participants in cross border data transfer would need to be covered by model clauses, or binding corporate rules and both of these are under judicial review (Schrems II) and create a barrier to entry because of cost to SMEs).

It should be noted that the ECJ has required the US Safe Harbour agreement to be re-negotiated; its successor allows US corporate self assessment, but also requires EU citizen access to the US Court system. The important thing here is that the Commission consider protections of EU citizens’ personal data, and the establishment of rights against the State’s intelligence, security and police services to be part of an adequacy findings and since the EU is not frightened of a row with the US; it wont be with us. …

On the streets

Yesterday, over 100,00 people marched in London calling for a 2nd referendum, I popped in to show my solidarity earlier as I needed to be somewhere else but it looked big. I shouldn’t call it a 2nd referendum, its more a case of asking us if whatever they get, is what we meant and still want?

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Privacy & compliance, reprised

I have had a look at the changes in Law, and thus the potential changes in data protection strategy since I first wrote about the conflicts between privacy, compliance and law enforcement.

The US courts have been siding with citizens and their privacy rights, the ECJ has been doing the same. Parliament has been going in the opposite direction, although the Supreme Court has declared the Data Retention laws to be contrary to Human Rights Law and should we actually leave the EU we will find obtaining an “Adequacy” agreement harder than we’d hope as the EU Parliament, Commission and the EU Data Protection Supervisory board focus on the rights of privacy from Governments. This will be a significant problem if the ECJ strikes down the model clauses and binding corporate rules.

I briefly touch on the fact that the European Laws are meant to be implementing the globally agreed seven principles of Data Protection, of Notice, Purpose, Consent, Security, Disclosure, Access and Accountability and that in a rights based jurisdiction, these rights must be protected from the Government as well as from Corporates.

 

The language has developed since 1980 but these principles were agree by the OECD in 1980.

I conclude the article by saying,

Today, under EU law, the lawful purpose would seem to be more flexible, cross border transfers are more restricted, and may become more so, and the EU is more concerned about nation state compliance; it’s what you’d expect from a political entity consisting of states and the children of people surviving fascist or Stalinist rule.

This political heritage should be remembered by those that see these laws merely as a business burden, …