Parliamentary Lies . . .

First, a post from the Full Fact organisation . . .

Following Tuesday night’s parliamentary vote, (22 Oct 19), the Conservative Party claimed repeatedly on both Facebook and Twitter that “Boris’s Brexit deal has passed Parliament”.

It hasn’t.

The House of Commons passed the Withdrawal Agreement Bill’s “second reading”. But this is just one early stage in the process of passing a Bill. It will then move onto “committee stage”, where MPs have the chance to examine the Bill in detail and add amendments to it.

It’s not helpful for the governing party to misrepresent the way legislation is passed in the UK, which is already a complex process that can be hard to follow, and risks unnecessary confusion among citizens.
This is wrong and unhelpful

UPDATE: Our fact check has since been featured on the front page of the Evening Standard.

LINK


And now, from the “Scotland in Europe” Newsletter . . .

“Amazingly the PM has said the Scottish Parliament has no role in approving the Bill even though the UK Government’s own explanatory notes list 17 instances where legislative consent from the Scottish Parliament is required.”
twitter.com/…

The Twitter references are published as images below. The print is quite small in the images, so it is probably better to follow the link to Twitter given above . . .

 

Faisal Islam is the, or an, Economics Editor at the BBC – an organisation which itself is frequently criticised for allegedly biased reporting these days.

Faisal Islam’s first tweet on the subject – above – and below an additional one plus his own correction . . .

I can remember no previous time in my life when the reporting and analysing of parliamentary lies has been so necessary, or so common. It is now necessary several times a week. Apropos Boris Johnson, some people think he is a liar, some think he cannot tell truth from untruth, others think he is simply not interested in mastering the detail of his job and so just wings it as he sees fit. He opens his mouth and words fall out, often incoherently and at random.

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To scrutinise . . . or not, or, The perils of the Johnson method.

This is a long read, but even if you only glance at a few paragraphs it shows just how important it is to have a proper scrutiny of proposed legislation – not just to let it go through on the nod as the Government seems to want . . .



UK CONSTITUTIONAL LAW ASSOCIATION

Constitutional Law Group October 24, 2019.
Adam Tucker: A First Critical Look at the Scrutiny of Delegated Legislation in the Withdrawal Agreement Bill

In this post, I make a preliminary attempt at assessing the provision made in the EU (Withdrawal Agreement) Bill – or WAB – for the scrutiny of the legislative powers which it delegates to the executive. My conclusions are not positive. The scrutiny procedures it seeks to enact are inadequate – so inadequate that it would be a constitutional mistake for Parliament to approve this aspect of the WAB without significant amendment. At the very least (or so I suggest) the Bill ought to be amended to incorporate the so-called “sifting process” developed for equivalent delegated powers under the European Union (Withdrawal) Act 2018 (EUWA). Better still, this should be seen as an opportunity to embrace further incremental improvements on that process.

The scrutiny provisions in the WAB are comparable to – indeed they are partly modelled on – the arrangements initially proposed for delegated legislation under EUWA as originally published. But in that original form, those proposals did not survive parliamentary scrutiny. They were widely condemned as an inappropriate transfer of power to the executive, emphatically criticised by multiple parliamentary committee inquiries, and ultimately amended. In other words, the scrutiny arrangements in WAB are an attempt to revisit an approach to scrutinising delegated legislation which Parliament has already recently rejected and amended. Enacting them would be a regrettable step backwards in terms of scrutiny of executive legislative activity, and would contradict the considered Parliamentary verdict on this issue elaborated during the passage of the 2018 Act.

At the time of writing, the government’s first programme motion – which proposed an extremely compressed timetable for scrutiny of the Bill – has been rejected by the House of Commons. But it remains government policy to pursue an extremely fast passage through Parliament for the WAB, certainly fast enough to inhibit thorough scrutiny of its proposals. With that accelerated context in mind, this post is not comprehensive – I generalise a little, I omit discussion of some important delegations and some nuances, I necessarily speculate on the full substantive importance of some clauses, and I have undoubtedly missed things (particularly but not exclusively connections between various aspects of the overall scheme in the Bill).

Still, the structure of the key elements of the Bill’s approach to delegated legislation is relatively clear. Alongside many discrete delegations (which I do not discuss here) two significant bundles of delegations can be discerned. All of the powers in each of these two bundles are “Henry VIII” powers – i.e. they extend to the amendment of primary legislation. And moreover (because they each rely on the definition of “enactment” in clause 37) all are prospective Henry VIII clauses. That is, these two main bundles of delegated powers in the WAB both empower the executive to amend primary legislation, including primary legislation passed after the passage of the WAB itself.

The first group, which I will call the Implementation Powers, consists of provisions concerning the domestic regulation of the Implementation Period. These take the form of insertions by the WAB into EUWA (in particular new sections 8A, 8B and 8C, which themselves take effect alongside and can be used to moderate the application of new sections 7A and 7B). Now, the substantive scope of the first two of these powers is not necessarily clear on the face of the Act. Section 8A would empower the executive to modify how provisions of EU law (saved from the repeal of the ECA by section 1A) are read in domestic law. And Section 8B empowers the executive to implement Part 3 of the Withdrawal Agreement, that is the “Separation Provisions” concerning the winding down of the application of EU law in the domestic legal order and the disentanglement at the end of the implantation period, including the regulation of the continued circulation of goods placed on the market before separation, ongoing customs procedures, taxation, intellectual property and police cooperation. It is hard to confidently anticipate the possible uses of this kind of power. This substantive opacity of these delegations is comparable to the similar characteristic of EUWA s8. And as the use of s8 for a remarkably broad range of policy interventions has demonstrated, this kind of substantively opaque delegation has the potential for staggering scope (for discussion and examples, see here and here). It would be unwise to assume that these powers are tightly constrained by the Treaty they are designed to implement and sensible to anticipate that as the substantive scope of s8A and s8B emerges, they will have the potential to be used in similar ways, and with similar range, to the s8 power. On the other hand, Section 8C is a remarkable clause whose substantive potential is plain on its face – it delegates to the executive essentially full authority over the implementation of the Northern Ireland Protocol. Proper scrutiny of that task – which has been at the heart of negotiations throughout, and whose resolution remains delicate – is fundamental to the legitimacy of the withdrawal process.

The scrutiny requirements for the exercise of these Implementation Powers are – consistent with the existing logic of the EUWA – inserted into Schedule 7 of that Act. Schedule 7’s existing provisions famously (following the amendments secured in Parliament during that Act’s passage) include the “sifting mechanism” through which dedicated committees (in each House) can recommend that some statutory instruments which would otherwise be subject only to negative procedures be upgraded to affirmative procedures. Whilst those recommendations are not binding, they have generally been followed by the government. And the institutionalisation of that process has resulted in the development of a parliamentary practice of case-by-case reflection on the appropriate scrutiny level for different instances of delegated legislation and an increasingly sensitive engagement with the underlying question of what kinds of delegated legislation ought to be subject to what kinds of scrutiny. Unfortunately, the WAB’s insertion into Schedule 7 of scrutiny requirements for the Implementation Powers does not tie into this sifting mechanism. Instead, it simply repeats precisely the approach which Parliament had previously judged inadequate. The scrutiny requirements for each of ss8A, 8B and 8C are organised around the simple formulaic presumption (which appears again and again, not just here but throughout the WAB) that instruments be subject to negative procedures unless they amend primary legislation (or, roughly equivalent, what is known in the withdrawal scheme as “principal EU legislation”). That is, the use of these powers as Henry VIII powers is the primary trigger for affirmative parliamentary scrutiny. But this is a problematic presumption – the use of delegated powers to amend primary legislation is, of course, an important activity which needs proper scrutiny. But the prominence of this presumption risks masking the – often equally significant – uses to which delegated legislation can be put without altering primary legislation. Some other specific substantive uses of these powers do also trigger affirmative scrutiny – in particular, 8C (the NI protocol implementation power) cannot be used to reform public authorities, impose fees, create new criminal offences, create legislative powers, or modify market access rules without parliamentary approval. But the bulk of legislative activity under these clauses will, under the scheme as published, be subject only to negative procedures in Parliament. In summary: 8A, 8B, and 8C empower the executive to legislate with significant scope in important policy areas, and a substantial proportion of exercises of those power – certainly much higher than under comparable delegations in the EUWA – will not be subject to affirmative scrutiny in Parliament and cannot be upgraded to undergo such scrutiny.

The second significant group of delegated powers, which I will call the Citizens’ Rights powers, are created in WAB clauses 7-14. They empower the executive to implement the whole range of provisions in the Withdrawal Agreement for citizens’ rights including residence, entry, frontier workers, recognition of professional qualifications, social security coordination, discrimination and employment rights, and the creation and administration of appeals or review mechanisms against some decisions taken in those contexts. In contrast to the Implementation Powers, this bundle is far from opaque. The substantive significance of this delegation of legislative power is plain to see; it covers essentially the entirety of one of the broadest, most sensitive and most important policy areas in the withdrawal process. And, again, whilst they are undoubtedly subject to some constraints in that they are limited to the implementation of the Withdrawal Agreement, they clearly empower extensive intervention by the government.

The scrutiny requirements for these Citizens’ Rights powers are set out in WAB Schedule 6. They follow the same formulaic pattern that we saw applied to the Implementation Powers above: the starting point is that their use as Henry VIII powers is subject to affirmative scrutiny. The first uses of each of the cl.7-9 powers (which need not be far-reaching) are also subject to affirmative scrutiny. But other and subsequent exercises of these powers (which certainly could be far-reaching) will be subject only to negative scrutiny, again with no provision made for any mechanism to upgrade the scrutiny given to negative instruments.

The WAB’s provisions for the scrutiny of delegated legislative power are, then, consistently arranged around an inadequate formulaic approach, which guards mainly against the abuse of delegated powers as Henry VIII clauses, but (due to the limitations of the prevailing negative procedures) leaves most other exercises of these powers essentially unscrutinised. Furthermore, the combination of formulaic criteria with the absence of a sifting mechanism means that the allocation of scrutiny mechanisms to these powers is wholly inflexible – no provision is made to enable the upgrading to affirmative procedures of significant exercises of the delegated powers which would otherwise be subject only to annulment; and it would in effect require subsequent primary legislation to introduce any such flexibility into the scheme. The range of policy areas to be subjected to this inflexible and inadequate framework – and thus left to the executive shielded from effective Parliamentary scrutiny – is extremely broad. On its face, it encompasses two of the most significant policy arenas of the whole withdrawal process, the Northern Ireland protocol and Citizens’ Rights. And the Implementation Powers will undoubtedly be used to legislate in other important policy areas.

What amendments ought to be made is, however, an awkward problem given that time pressures are suppressing the usual institutional mechanisms for exploring this kind of problem and carefully proposing alternative approaches. In normal circumstances (and using the passage of EUWA as a guide) this issue would be tackled, drawing on a wide range of expertise, by multiple parliamentary committees, likely including (in the House of Commons) the Procedure Committee and (in the House of Lords) the Constitution Committee and the Delegated Powers and Regulatory Reform Committee. And the committees involved in the sifting process under EUWA – the European Statutory Instruments Committee and the Secondary Legislation Scrutiny Committee in the Commons and Lords respectively – might also take the opportunity to share their experiences with that scheme. The probable bypassing of this aspect of the normal legislative process on the WAB is a startling illustration of the scrutiny gap between this Bill and more typically timetabled legislation.

On the substance, the starting point for amendments on this issue must be an acknowledgement that under-scrutiny of delegated legislation is a standing problem in the UK constitution. Accordingly, statutes delegating significant substantive powers to legislate (like the WAB, but also more generally) should incrementally innovate in order to improve the situation. Yet as published, the WAB proposes a step backwards. And even the sifting process in EUWA represented only modest progress. On the one hand, section 8 instruments are among the best scrutinised in the UK constitution. But on the other hand, experience has shown that there are still important (but in principle avoidable) limitations on the effectiveness of even that scrutiny process: far-reaching policy changes are still subject to little or no proper scrutiny even under the sifting mechanism. So at the very least, WAB should maintain the standards set in EUWA: the provisions on scrutiny of the Implementation Powers and the Citizen’s Rights powers should be amended in order to bring legislation made under those powers into the regime of the sifting mechanism. On further examination, this is likely also to be the case for other powers which I have not covered here. Ideally, amendments would go further still, in the light of the experience of that sifting mechanism. In particular, consideration should be given to making the recommendations of the sifting committees binding (or perhaps, at the very least, more difficult to circumvent) and to ways of enabling them to prompt better informed and more far-reaching debate (where appropriate) on the floor of the House.

The scale of the withdrawal process makes large scale delegation inevitable; its very nature entails a shift of authority towards the executive. This issue needs careful management – yet the approach to scrutiny taken in the WAB is wholly unsatisfactory. It was rejected by Parliament last time it was proposed. It should be rejected again in favour of more intrusive scrutiny techniques.

I am grateful to Mike Gordon, Alexandra Sinclair and Joe Tomlinson who generously commented on earlier drafts of this post at – obviously – very short notice.

Adam Tucker, University of Liverpool

(Suggested citation: A. Tucker, ‘A First Critical Look at the Scrutiny of Delegated Legislation in the Withdrawal Agreement Bill’, U.K. Const. L. Blog (24th Oct. 2019) (available at https://ukconstitutionallaw.org/))

https://is.gd/94C1so

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Will you be able to vote ?

The Electoral Reform Society has published a thought provoking post about who might be and might not be able to vote if plans published in the Queen’ speech were to be put into practice.



Author: Darren Hughes
Posted on the 15th October 2019

Voter ID checks threaten to suppress voter rights ‘on industrial scale’

The Windrush scandal showed what can happen when millions of people who lack ID are shut out by Government.

But the announcement in the Queen’s Speech proposing mandatory voter ID checks means there’s a risk of repeating those mistakes – this time affecting equality at the ballot box.

A 2015 Electoral Commission report pointed out that 3.5 million citizens in the UK do not have access to photo ID, and 11 million citizens do not have a passport or driving licence – the kind of ID expected to be required under any new legislation.

The up-to-date figures, from 2017, show a gaping demographic divide remains in those statistics.

Excluding BAME voters.

Looking at who has a full driving license in England paints a concerning picture – with black and mixed communities far less likely to possess one: white people are most likely to hold a driving licence out of all ethnic groups (at 76 per cent), followed by Asian people (62 per cent), while people identifying as mixed race (59 per cent) or Black (52 per cent) are the least likely to hold a driving licence.

While ministers have promised a free identification card from local councils on request, this simply represents another barrier to voting that will put many off – with large variations likely in terms of how easy the cards are to acquire.

Some forms of free ID were made available in trials testing this policy in May but figures show that almost no one got one. That was unsurprising given that, in many cases, a would-be voter had to turn up to a council office, fill in forms and get someone of “high standing” in your area to sign it.

Those same trials of compulsory voter ID trials, which took place in local elections in 10 councils, saw more than 700 people denied a vote for not having ID in pilots according to official figures. We could see voters excluded on an industrial scale if mandatory photo ID were rolled out nationally.

Heavy handed.

Given there were just eight allegations of this kind of voter fraud in the whole of 2018, these proposals seem heavy handed and completely out of proportion. But perhaps the most galling thing about this policy is that there are genuine threats to our democracy in the UK that remain unaddressed. They’re just not from people wearing fancy dress to impersonate others at the ballot box.

A new briefing from the Electoral Reform Society, published today, points to over a dozen ‘major loopholes’ that make elections vulnerable to “dodgy donors, dark ads and disinformation”.

Let’s look at a few. At present, big donors can funnel their money through the use of unaccountable corporate trusts, potentially masking many separate donations through a single entity. And the lack of real-time donation reporting during elections means that voters often only find out about potential conflicts of interests or influences driving the debate long after the voting.

Worse still, foreign states, organisations or individuals are able to influence UK campaigns with online ads with little oversight. Millions can also be pumped into campaign groups, including from foreign donors – outside of the regulated campaign period, without funding transparency. Parliament has received reams of evidence of this happening – which is why major bodies like the Digital Culture Media and Sport committee is calling for action.

Out of date laws.

As we have seen, Electoral Commission fines (max of £20,000) for electoral wrongdoing can be seen as the “cost of doing business” for big players, while the EC lack the investigatory powers of the Information Commissioner’s office.

Current laws regulating digital campaigning are now nearly 20 years old. The Political Parties, Elections and Referendums Act came into law in 2000 – when just 13 per cent of people had access to the internet. Now millions are spent at elections on online campaigning, while the internet has also opened up greater potential for making untraceable foreign donations.

Many are joining our call for emergency legislation to bring the outdated regulations up to date to ensure any snap election isn’t vulnerable to foreign interference, including Conservative MP Damian Collins.

It is disappointing that this Queen’s Speech missed the opportunity to pledge real action on the glaring loopholes in our electoral law – instead of going after ordinary voters through their misguided mandatory voter ID plans.

Instead, black and minority ethnic communities – as well as many young and elderly voters – are likely to be hard hit by this ‘show your papers’ policy.

It is time to go after the big players, not millions of ordinary voters. The voter ID plans are set to leave tens of thousands of legitimate voters voiceless and will hit some groups much harder than others. Ministers should focus on combating the real threats to our democracy, rather than suppressing voters’ rights.

Source : https://is.gd/6SE5FU
The italics in the above are mine.

 

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Some new books . . .

Two new books purchased from Hive.co.uk. “Confessions of a Bookseller” is – as you can see – by Shaun Bythell the proprietor of The Bookshop in Wigtown who had (and still has) such a success with is first effort, “The Diary of a Bookseller”. Brian Bilston, whose talk at the Wigtown Book Festival we attended, is better known for his collection of poetry called, “You took the last bus home” which concludes with his puzzlement as to how the bus was got through the front door. This is more along the lines of a diary – was he influenced by Shaun Bythell’s success we wonder ? – but includes poems as well.

Duvet,

you are so groovet,

I’d like to stay under you

all of Tuesdet

I prefer Hive bookshop. It is as on line affair, but it isn’t Amazon and it doesn’t charge postage, although I am sure that is factored into their prices. These online bookshops have decimated the ranks of local bookshops (to decimate is to kill off one in ten – the death rate among bookshops is far higher than that) but given that the loss has happened and we have very little in the way of bookstores selling new books within easy distance of us, Hive is a good substitute, and they do give the the chance to back an existing bookshop. The nearest practical one to us is Whities in Peebles (a 160 mile round trip) and they can also be found here.

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Odd . . .

This is a bit odd ?? Downloading and installing a Word Press update, from Word Press, by Word Press software, and it says it doesn’t have a signature and cannot be verified – but still updates all the same. Perhaps I have the Kremlin or Chinese version – or even the 10, Downing Street version ?

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More Fibs . . .

The image above shows a post on Facebook by The Student Brexit Group. Full Fact were asked to investigate this and here is their reply :

We’ve been asked to check a claim on Facebook that 9 of the eleven Supreme Court judges who made a ruling on Boris Johnson’s suspension of parliament “receive stipends of £175,000+ from the EU”.

“We’ve seen no evidence that a payment of this type exists. Two of the judges work ad hoc for the European Court of Human Rights—but this is not the same as the EU.”

“Only one of the two has come to the European Human Rights court, and that has only been twice in the last four years. They get paid around £444 per day for this.”

Why, Oh Why, is it necessary for Brexit campaigners like these (if it is indeed a genuine group) to conduct their activities by the continual telling and publishing of lies ?

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BBC News

BBC News has a weird sense of the fitness of things.  Tonight they refer – as they so often do – to their “top story”.  This tonight happens to be that thousands of people are fleeing their homes in northern Syria – as if Syria hasn’t had enough trouble recently.  I do not see how this can be “top” – “most serious”, “most important”, “most awful” maybe, but we cannot rate news items, and should not, as which of these things is “top” on a ten point scale where 10 is “we would like lots more like this” and 1 is “boring” ?

Similarly, for two nights now we have been lambasted by the sensational news that a rugby match in Japan may have to be cancelled because of a super typhoon which is due to hit the country. How could the Japanese Government allow this to happen ?  Tonight I notice a brief nod towards the idea that a super typhoon might possibly blow a few things over and kill a few people – but the real crunch is that it is going to cancel a rugby match.

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Leaver, or Remainer ?

Scene : Heathrow

Border Official :

“Good Morning Sir. May I see your passport please. Thank you.  Ah – Japanese I see. Lovely country I believe.”

Tourist :

Thank you. Yes I am Japanese. The cherry blossom was out as I left.”

Border Official :

Very beautiful I believe Sir. I am required to ask, are you a Leaver or a Remainer ?”

Tourist :

“Sir, I am neither. I am Japanese.”

Border Official :

“Ah. Sir. We will have our little joke eh ? Are you a Japanese Leaver, or a Japanese Remainer ?”

Tourist :

“Sir, with respect, I am a Japanese citizen, I do not interest my self in your country’s politics. I do not side with any of your political parties.”

Border Official : (Pressing bell under the desk)

“I am sorry Sir. That will not do.”

(Uniformed men arrive. Border Official points at Tourist).

“Category :Undecided. Action : Return to Country of origin”.

(To Tourist).

“I am sorry about this Sir, but you must be either a Leaver or a Remainer. I am required to endorse your Passport as such. You may change your mind at any time between now and the departure of your flight. Have a nice day”.

* * * *

Why do I write this ? Because an article in today’s Guardian suggests, quite plausibly, that politics in this country are in the process of changing into those of Northern Ireland as they were before the Good Friday Agreement came into force. The joke then was that of a Rabbi landing in Northern Ireland and being asked his religion. When he said he was a Rabbi the reply was, “Well, are youz a Protestant rabbi or a Catholic Rabbi ?”

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A Statement by David Sassoli, President of the European Parliament

Statement by David Sassoli, President of the European Parliament
Press Releases Yesterday


Statement by David Sassoli, President of the European Parliament following his meeting with Prime Minister Boris Johnson.

“I have just had a meeting with Prime Minister Johnson. I came here in the confident hope of hearing proposals that could take negotiations forward. However, I must note that there has been no progress.

As you know, a deal between the EU and UK requires not only a positive meaningful vote of the House of Commons, but also the European Parliament’s approval.


It is therefore important that the UK Prime Minister hears directly from the European Parliament on its approach to Brexit. I am grateful to Mr Johnson for giving me that opportunity.


Our approach is very straightforward. We think an orderly Brexit, the UK leaving with a deal, is by far the best outcome. The deal that we thought had been agreed with the UK last year was a text the EP could have supported. It resolved all the issues associated with the UK’s withdrawal from the EU. It provided certainty for citizens and businesses. It looked forward to a close future EU-UK relationship. As things stand, it remains the best possible agreement.


As I explained to Mr Johnson, the Parliament will not agree to a deal at any price. We will not agree to a deal that undermines the Good Friday Agreement and the peace process or compromise the integrity of our single market. This we made plain in our resolution adopted with a huge majority in September.


We have examined the UK proposals to replace the original backstop and our response is that these are a long way from something to which the Parliament could agree. In addition, they are not immediately operable.


Negotiations, I know, are continuing and the Parliament, through its Brexit Steering Group, is being kept fully informed by Michel Barnier of the progress on those talks.


There are two alternatives to a deal at this juncture: extension or no deal.


On an extension, the Parliament is open to this possibility, should there be a good reason or purpose for this. But requesting an extension is a matter for the UK and it is not my place to comment on the political controversies or legal issues that are being debated in the United Kingdom.


As far as no deal is concerned, we are very clear that this would be a very negative outcome. It will be economically damaging to both parties, in particular to the UK. It will have very serious consequences on the island of Ireland. It will increase uncertainty for business and above all for citizens. “No deal” would clearly be the responsibility of the UK government.


On citizens, we will continue to ensure that in all scenarios their rights are protected.


I do hope a no-deal outcome can be avoided, but if not, the EU has taken the necessary measures to prepare for this outcome.


I continue to place my faith in good sense and responsibility but among friends, duty demands that we tell each other the truth.


Thank you.”

Contacts:
Roberto CUILLO
Spokesperson of the President
(+32) 2 28 32494 (BXL)
(+33) 3 881 72340 (STR)
(+32) 470 89 25 92
roberto.cuillo@europarl.europa.eu

* * * *

How nicely expressed is the above statement. Clear, and succinct, but with enough detail to give a full report on his meeting. The statements of our so called leaders are full of spite and bile and threats and are just plain nasty. As leaders they are simply not mature enough to dabble in international affairs.

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Anti Brexit Measure . . .

New freezer.

Anti Brexit measures.

Will their be any food to put in it ?

Will there be any electricity ?

Not if Boris Johnson and Dominic Cummings can help it !

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