Brexit is about to get real. Yet we are nowhere near ready for it

Jonathan Freedland in The Guardian


In the coming days, perhaps as soon as Wednesday, Brexit will turn from abstract to concrete. A near-theological argument that raged in one form or another for nearly three decades will become hard and material, with a fixed deadline. Theresa May is about to trigger article 50, starting the clock on a two-year journey towards the exit from the European Union. And yet those in charge of this fateful, epochal process – and especially those who most loudly demanded it happen – seem utterly unprepared for it.


In four words, the European strategy for the Brexit talks has to be: pour décourager les autres (Discouraging the others)

Philip Hammond’s budget on Wednesday illustrated the point neatly. The country is about to leave its largest export market, a decision with enormous economic implications. The chancellor had the floor for nearly an hour, his obligation to provide an assessment of the present and future prospects of the British economy. Did he so much as mention the imminent exit from the single market? No. Incredibly, he made just two fleeting references to the EU in the entire address.

Instead the stand-out measure, the one that has dominated political discussion since, was Hammond’s decision to take more tax from a core Tory constituency: the self-employed. Important for those individuals, most certainly; a political unforced error, no doubt. But for this to be the focus following a major economic statement on the eve of Brexit is displacement activity of the most heroic kind.

It’s as if the crew of the Titanic eyed the iceberg ahead and promptly decided to have a big squabble over whether to serve white or red.

This failure to wrestle with what’s coming goes wider. The public conversation since 23 June 2016 has barely differed from the debate before that date, each side – leave and remain – still refighting the EU referendum campaign, uncertain how to get out of the old groove.

That failing is most obvious among the Brexiteers, characterised by a refusal to own their victory and take responsibility for it. So when a voice of experience or authority dares point out the possible dangers ahead, they are either sacked, as was the fate of Michael Heseltine, attacked personally, like John Major, or else branded an “enemy of the people” who refuses to bow to the “popular will”.

Those with concerns are accused of “talking down the country” or lacking sufficient faith – as if, should Brexit make us poorer, the fault will belong to those who didn’t screw their eyes tight enough and believe. Credit to Jonn Elledge for calling this what it is: the Tinkerbell delusion.

This surely has to end with the triggering of article 50. From this moment on, the focus must be intensely practical. No more baggy rhetoric about sovereignty and “taking back control”. From now on, those who got us into this situation have to show they can get us out intact by March 2019.

That will require a major shift among the Brexiteer ministers and in Downing Street. Those close to the pre-negotiations between Britain and the remaining 27 EU states report an unwarranted hubris on the UK side that augurs ill. Too many Brexiteers cling to the campaign’s wishful thinking that we go into these talks as the stronger party, that “they need us more than we need them”, and that so long as we hang tough, the Europeans will buckle and hand us a dream deal.

Such arrogance is likely to be exposed soon. For one thing, it ignores the key structural fact that makes Britain’s negotiating prospects bleak from the start: namely, it is imperative for the EU’s own survival that the UK be left in a visibly, materially worse situation after leaving the EU than it enjoyed before. The logic is not vindictive. If the EU is to hold together it must prevent a Brexit contagion. Any divorce settlement must be ugly enough to ensure the remaining 27 stay with their spouse, no matter how loveless that marriage might feel. In four words, the European strategy for the Brexit talks has to be: pour décourager les autres.

But if British politicians are insufficiently mindful of that built-in obstacle, they are far too blithe about the sheer complexity of the undertaking that is about to begin. They are aiming to unpick 40 years of arrangements, seeking to annul them in a pact that will require the blessing of 27 other sovereign states.

To call it 27-dimensional chess understates the geometry: the final divorce settlement will have to be ratified by 38 different national and regional parliaments. To say nothing of the European parliament, commission and council. Each of these bodies has its own interests, pressures and red lines.

May will have to craft a document that satisfies every one of those competing forces, as well as both chambers of the UK parliament. She will have to do it without pushing Scotland towards a second, more winnable independence referendum or recreating a hard border between Northern Ireland and the Irish republic. And she has to get it done in roughly 18 months. Not for nothing did Dominic Cummings, the mastermind of the Vote Leave campaign, tweet with a candour rare among Brexiteers that leaving the EU was the “hardest job since beating Nazis”.

Or reflect on the supposed aces Britain is confidently looking forward to playing in the upcoming game of Brexit poker. Charles Grant, the sage director of the Centre for European Reform who predicted the leave vote, patiently explains how each one of these assets – which Brexiteers believe will make the Europeans putty in our hands – could create as much angst as advantage.

It’s true, says Grant, that the City of London is valued for the financial services it provides to the EU. But it’s also true that Paris, Madrid, Milan, Frankfurt, Dublin and others are circling, ready to feast on the City’s carcass: they want some of that business for themselves.

No 10 refuses to budge on Brexit bill, despite heavy defeat in Lords



The Brexiteers reckon the Europeans won’t want to give up London’s special relationship with Washington. But, says Grant, British “fawning” over Donald Trump alienates many Europeans, making them doubt we share their basic values. As for Britain’s contribution to European security – via its UN seat, Nato and its fabled military – that’s much admired. But not if it’s used as a threat: give us a free trade deal or we’ll pull out the 1,000 British troops recently deployed in the Polish-Baltic area. Talk like that will backfire.

Leavers should be approaching this gargantuan task with a special humility, because it was they who needlessly inflicted it upon us.

Remainers need to adjust to the new reality too. Many may be hoping that, as the price and consequences of exit become ever clearer through these talks, some among the 52% will gradually switch sides. But remainers should contemplate the less cheery prospect that the most ardent Brexiteers, and especially the anti-EU newspapers, will double down in their loathing of Brussels. When the EU 27 demand, say, serious cash for single market access, the Mail and Sun will dip their pen into an even deeper well of venom.

So remainers will need to handle these next two years carefully, readying themselves for the day when the deal is done, and ensuring they have already placed two key questions in the front of the public mind: is this deal better than the set-up we had on 22 June 2016? And if it isn’t, why are we doing it?

The Tinkerbell theory: I wish politicians would stop blaming their failures on my lack of belief

Who knew Peter Pan would become one of the key political texts of the twenty-first century?

Jonn Elledge in The New Statesman

The moment you doubt whether you can fly,” J M Barrie once wrote, "You cease for ever to be able to do it.” Elsewhere in the same book he was blunter, still: “Whenever a child says, ‘I don’t believe in fairies’, there’s a little fairy somewhere that falls right down dead.”
I would never have expected that Peter Pan would become one of the key political texts of the twenty-first century, if I’m honest. But predictions are not my strongpoint, and over the last few years, what one might term the Tinkerbell Theory of Politics has played an increasingly prominent role in national debate. The doubters’ lack of faith, we are told, is one of the biggest barriers to flight for everything from Jeremy Corbyn’s poll ratings to Brexit. Because we don’t believe, they can’t achieve.

It was in run up to the Scottish referendum that I first spotted Tinkerbell in the wild. Reports suggesting that RBS would consider relocating from Edinburgh, should independence lead to a significant rise in business costs – a statement of the bloody obvious, I’d have thought – were dismissed by then-First Minister Alex Salmond as merely “talking down Scotland”. Over the next few months, the same phrase was deployed by the SNP and its outriders whenever anyone questioned the Yes campaign’s optimistic estimates of future North Sea oil revenues.

The implications of all this were pretty clear: any practical problems apparently arising from independence were mere phantasms. The real threat to Scotland was the erosion of animal spirits caused by the faithlessness of unpatriotic unionists, who’d happily slaughter every fairy in the land before they risked an independent Scotland.

All this seemed pretty obnoxious to me, but at the time of the referendum it also all seemed to be a reassuringly long way away. Little did I realise that Salmond and co were just ahead of their time, because today, Tinkerbell-ism is bloody inescapable.

On Monday, Sir John Major made a wonkish speech laying out his concerns about Brexit. He talked about the threat to the Northern Ireland peace process, the way it would isolate Britain diplomatically, the difficulty of negotiating highly complicated trade deals on the timetable imposed by Article 50. He wanted, he said, to “warn against an over-optimism that – if unachieved – will sow further distrust between politics and the public, at a time when trust needs to be re-built”.

And how did Britain’s foreign secretary respond? “I think it’s very important that as we set out in this journey we are positive about the outcome for the very good reason the outcome will be fantastic for this country,” Boris said, probably imagining himself to be a bit like Cicero.

The problem, in other words, is not the government’s lack of a plan; the problem is its critics’ lack of faith. In a familiar phrase, the Telegraph headlined its report: “Boris Johnson criticises John Major for talking down UK’s post-Brexit prospects”.

The left is no better. In any discussion of the failings of Corbyn’s leadership of the Labour party, it won’t be long before someone blames the polls, or the by-election results, on either the lack of support from the parliamentary Labour party, or the hostility of a media that never liked him in the first place. “Of course he’s struggling,” the implication runs. “Your lack of belief is a self-fulfilling prophecy.” Dead fairies, everywhere you turn.

It’s easy to see why the Tinkerbell strategy would be such an attractive line of argument for those who deploy it - one that places responsibility for their own f*ck-ups squarely on their critics, thus rendering them impervious to attack. Corbyn’s failure becomes the fault of the Blairites. A bad Brexit becomes the fault of Remoaners, and not those who were dim enough to believe it would easy to begin with. Best of all, the more right your critics turn out to be, the more you have to blame them for.

But being impervious to criticism is not the same as being right, and to think this strategy is a recipe for good government is to mistake a closed loop of true believers for objective reality. Jeremy Corbyn is unlikely to start winning elections, no matter how hard the faithful believe. However much you talk up Scotland, that oil is still going to run out

And whatever the right-wing press do to convince themselves that Boris Johnson is right, and John Major is wrong, it is unlikely to affect the negotiating position of the 27 other states in the slightest. At the end of the day, our faith matters a lot less than the facts on the ground. There is no such things as fairies.

Lessons from Amma

Shubhankar Dam in The Friday Times

From 1991 to 1996, four residents of 36 Poes Garden, Chennai—J Jayalalithaa, the chief minister of Tamil Nadu and her foster family—amassed a 3,200% increase in wealth. This staggering surge, a rate of superhuman returns, beggars belief. What begot this? Prodigious business acumen? Or a colossal abuse of public office?

In June 1996, one Subramanian Swamy filed a complaint against Jayalalithaa alleging assets in titanic disproportion to her accredited sources of income. Investigations laid bare an incestuous web of businesses and vicariously held properties. The three other residents of Poes Garden, VK Sasikala, J Elavarasi, and VN Sudhakaran, appeared deep in cahoots with the matriarch. In Jan. 1997, they, too, were arraigned alongside the alleged mastermind.

The matter gingerly inched through India’s legal complex, wobbling from one court to another. Calendars turned, as parties wrangled over legal process. Two decades went by.

On February 14, 2017, at last, the final word. The Indian Supreme Court delivered a decisive verdict. What it enounced should put public officials, politicians and corporates, too, on alert.

Presented with fawning tributes on birthdays or other times, politicians holding public offices must turn them down: that is the only legal option now. No longer can they summon the alibi of customary practice-insistent adulation of their devotees-to fatten their bank balances

The conspiracy, the crime, the charge

Jayalalithaa was charged with criminal misconduct under the Prevention of Corruption Act, 1988: possessing, directly or through a person, while in public office, resources or property disproportionate to one’s known sources of income—something the public servant cannot satisfactorily account for. Her familial acolytes were indicted for criminal conspiracy and abetment.

Persons conspire, the Indian Penal Code, 1860, says, if two or more agree to do an unlawful act or a lawful act by unlawful means. Persons abet an offence, the code adds, if they intentionally aid others in an unlawful act.

The trial court, and later, the high court, distilled the facts, weighed the evidence, and applied the law. The first court convicted; the latter acquitted. Why? They disagreed on all counts: facts, evidence and the law. The Supreme Court stepped in, and broke new ground. Measuring disproportionate assets will never be the same again.

Tamil Nadu CM Jayalalithaa was charged with criminal misconduct under the Prevention of Corruption Act, 1988: possessing, directly or through a person, while in public office, resources or property disproportionate to one’s known sources of income-something the public servant cannot satisfactorily account for

Accounting for criminal income

Jayalalithaa and her aides asserted large incomes from assorted sources: business, agriculture, loans, interests, gifts, rentals, and sale of party literature. They produced income tax returns as proof. Income tax officials had accepted these documents. So, they sufficed as proof, all four optimistically pleaded. The Supreme Court rubbished this approach. Tax laws are distinct from anti-corruption rules. Income tax officers only assess incomes; they don’t bother with sources, the court insisted.

In Sept 1958, Indian police detained one Piara Singh as he ventured to cross into Pakistan. Searches revealed a sum of Rs65,500 on his person; interrogations revealed a gold-smuggling racket. Officials quickly seized his cash. Of the impounded sum, Rs60,500 was Singh’s income from undisclosed sources, income tax officers assessed. It was liable to tax.

Singh protested. Smuggling was his “business,” he told the Supreme Court. The impounded cash amounted to a “business loss”. It should be tax-exempt. The court agreed. Tax laws are catholic—they apply to all profits and losses, licit and illicit. The sources don’t matter. So, Singh’s business loss was indeed tax-exempt.

Anti-corruption law is different: It obsesses over sources. The 1988 Act says: If charged, a public servant must satisfactorily explain the disproportionate assets through his or her known sources of income, that is, “income received from any lawful source”.

Jayalalithaa had massive incomes but no evidence of their legality—no credible records, witnesses, explanations or inferences. The court affirmed the charge against her. A clean bill of financial health from the tax department, in other words, won’t ease matters in an anti-corruption court. Independent verification is the key.

But that’s not all. The court went further—much further. It proscribed a commonly asserted source of income, and that should alarm politicians in India even more.

Tax laws are catholic-they apply to all profits and losses, licit and illicit. The sources don’t matter. Anti-corruption law is different: It obsesses over sources

New law of public affection

Jayalalithaa’s birthdays were an annual orgy of love and presents. Cash, foreign remittances, jewelry, sarees, and silver items—her democratic devotees inundated her with them, she claimed.

Are such gifts lawful sources of income in an anti-corruption context? No, the court emphatically said. They are “visibly illegal and forbidden by law”. Gifts are bribes by another name. Legalising them would erase the bar on bribes, it reasoned.

Presents to public servants come in many forms. Some are designed to induce or reward abuse of office. Others come with no manifest motive. They are “simply” gifts. But these, too, are unlawful, the court pronounced. Why?

Gifts are “likely to influence [a] public servant to show official favour to [the] person” offering them, if opportunities arise. Opportunities, though, may arise in umpteen, unpredictable ways. Many citizens are likely to have business to transact with, say, a minister (get a policy altered), bureaucrat (get a permit issued) or police officer (get a matter investigated).

Are gifts from all citizens unlawful? Relatives, friends, acquaintances, too? The court didn’t say. But if so, a generous embargo on presents is a revolutionary piece of reasoning.

Presented with fawning tributes on birthdays or other times, politicians holding public offices must turn them down: that is the only legal option now. No longer can they summon the alibi of customary practice—insistent adulation of their devotees—to fatten their bank balances.

The bar applies to all public servants and corporates, not just politicians. Under scrutiny for purportedly spinning a web around public officials to promote business interests, the Essar Group defended its practices in an affidavit to the Supreme Court in Nov. 2015. Small gifts and favors to government servants are “common courtesies”, it claimed. They aren’t improper, much less illegal. They are illegal: The verdict makes it emphatically clear.

Declaring illegality is the easy part; proving criminal collusion is much harder. But corrupt politicians, corporates and their handlers, be warned. A new judicial zeal is doing the rounds. 

Poes Garden: house of crimes

Jayalalithaa invited her friend Sasikala to the residency at Poes Garden in 1987. Together, they ran two business partnerships. Later, Elavarasi and Sudhakaran, Sasikala’s relatives, were inducted into the home in 1991 and 1992, respectively.

The new residents had no business experience or sources of income. Yet, they acquired six companies, and held directorships. (More firms were incorporated later.) Accounts linked to Jayalalithaa and Sasikala funded the acquisitions.

The companies, originally, had nothing of worth: funds, assets, loans or anything else. Not even bank accounts in some cases. But, suddenly, they stirred into brisk action. They surveyed and negotiated deals, bought land, and executed sale deeds. They also operated some 50 bank accounts. Cash promiscuously flowed in and out. No walls separated them. Intriguingly, that is all the companies did: hoard properties and move cash around.

These were shells, not companies. It strained credulity to believe that they transacted ordinary business. The Supreme Court did not believe, either. Business registrations, deals, transfers, appointments, resignations had remarkable synchronies. These weren’t coincidences, the court inferred. The collaborators were part of an elaborate commercial incest. The firms, their holdings, and deals were shams, contrived to lend an ounce of entrepreneurial legitimacy.

Poes Garden was a conspiratorial den, and Jayalalithaa masterminded it, the court found. She funded the partnerships. These, in turn, funded the companies. Those, then, bought properties. The 50 bank accounts were effectively one: Jayalalithaa’s. Guilty, all of them, the court decided.

The verdict will resonate far beyond the immediate facts. It has an air of urgency. There’s a readiness to peel away legal facades, probe nooks and crannies, unite the dots and draw aggressive inferences. Gone are the days when judges willingly suspended disbelief, demanded impossible standards from prosecutors, and granted careless benefit of doubt to the accused.

It augurs well for corruption trials now underway. The decision puts undertrials on notice, and those plotting their next rendezvous with public corruption, too.

Altogether, it feels rosy it shouldn’t. Ominous clouds still lurk on the legal horizon.

This ain’t a happy ending

The verdict, again, betrays the rot at the heart of India’s criminal justice complex. For one, it ground ahead slowly, far too slowly. Two decades to litigate a criminal charge is inordinately long. This point isn’t worth belabouring—it is well known.

But another point is the systemic lack of investigative and prosecutorial independence, and the inability to hold serving public officials, particularly, political offices, to account. Lest we forget, anti-corruption sleuths didn’t pursue Jayalalithaa. A private complainant did: Subramanian Swamy. The director of Vigilance and Anti-Corruption, Chennai, joined in after a court directive. That Jayalalithaa’s political rival in Tamil Nadu, the Dravida Munnetra Kazhagam (DMK), held power in the state during the investigations only helped matters along.

A credible investigation against a sitting chief minister in India, even now, is an absurd idea. Investigations are only the beginning. Prosecutions must follow in deserving cases. It followed in this case, and quite well. But only till the DMK was in power. By August 2000, nearly 250 witnesses had been examined; just over 10 remained. The marathon trial was in its last mile.

Suddenly, it fumbled

In May 2001, Jayalalithaa and her party returned to power. Witnesses turned hostile. Prosecutors lost their zeal. The trial went awry. In Nov. 2003, the Supreme Court, in response to a petition by a DMK leader, K. Anbazhagan, transferred the trial to Bangalore. A fair trial against a sitting chief minister was impossible within the state, the court implied. Such is the rancid reality of prosecutorial affairs in India.

The trail began anew. Even there in Bangalore, prosecutors struggled. Interference lurked at every turn. The Supreme Court routinely intervened to keep matters on track—often at the dogged insistence of Swamy and Anbazhagan. Only they seemed keen to try Jayalalithaa, not the state.

Successful anti-corruption drives marry tough rules, investigative and prosecutorial independence with judicial reasonableness. India has two of these—or at least a semblance of them. The middle one is missing; it has always been so.

Without it, the Jayalalithaa-Sasikala matter will remain a celebrated exception. Without it, prosecuting high corruption in India will remain a private pastime, always directed at opposition politicians against an obstinate state apparatus, and overly reliant on courts. Without it, only lesser mortals will endure the fury of anti-corruption rules: Those more equal than others will forever remain immune.

Muslims Want Tarek Fatah Dead