The moral hazard of the United Kingdom casually breaching the Political Declaration

27th February 2020

The Political Declaration is a formal, negotiated document agreed between the United Kingdom and the European Union.

You can see the document here, hosted on the United Kingdom’s own website – all 31 pages of detailed prose, over 141 numbered paragraphs.

It is a serious document, to be taken seriously.

The United Kingdom government says itself on its website:

“The new Political Declaration sets out the framework for the future relationship between the European Union and the United Kingdom and reflects the Government’s ambition to conclude an ambitious, broad, deep and flexible partnership across trade and economic cooperation with the EU, with a free trade agreement with the EU at its core, alongside agreements on security and other areas of cooperation.”

The Political Declaration, however, is not legally binding.

And there is now a suggestion that the United Kingdom government can and should disregard the commitments set out in the Political Declaration.

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There have been, broadly, two responses to the United Kingdom government apparent desire to breach the terms of the Political Declaration.

The first is first is to say that as the Political Declaration is not binding then it does not matter if it is breached, casually or otherwise.

The second is to say that the Political Declaration is a formal and negotiated document, and that it does matter if it is breached.

These two views appear to be be in conflict to the point of contradiction.  

And if they are in conflict then the question becomes which is the better view.

The two responses are not actually in conflict as they are dealing with different things: there is therefore no hard contradiction.

But the better view is that the Political Declaration should be taken seriously – even if it is not binding.

Indeed, that the Political Declaration is not binding makes it more important that the government takes it seriously.

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What does it mean for a formal commitment to be “binding”?

Not all formally negotiated documents are (legally) “binding” – so what is it which gives them this quality.

In general terms “binding” means that there are formal sanctions available in the event of the breach.

These sanctions may not necessarily require the party in breach to specifically perform the commitment.

The sanction may be that the other party can terminate the agreement, or that there is some remedy or benefit for the other party.

But whatever the sanction, the notion is that the agreed commitment can be enforced against the party in breach so that the other party does not suffer the disadvantage of the breach.

Making a commitment (legally) binding is one way of showing that the party undertaking the commitment is being serious.

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In foreign affairs and international politics, however, a preoccupation with whether a formal serious commitment is “binding” or not is in good part a legalistic red herring.

A serious formal commitment is intended to be taken seriously and formally: that is its very point.

And this is regardless of whether it is technically “binding”.

Resiling from an obligation on the technicality that it is not legally binding is not to take such a commitment seriously.

(A useful comparator are the United Kingdom’s pre-Brexit financial commitments to the European Union – there were question marks over whether they were legally binding – how could they be litigated? which court? – but this was not the point: the United Kingdom had made a commitment and was expected to stick to it.)

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All this said, there may be a good reason for a country to depart from a formal serious undertaking.

And both the United Kingdom and the European Union knew that the Political Declaration was not (legally) enforceable.

Both sides accepted it could and would be departed from, in certain circumstances.

The crucial question would be: how and on what basis?

And in this way, the Political Declaration is, in effect, a test for a post-Brexit United Kingdom.

How seriously does the United Kingdom take non-binding commitments and assurances?

Do the words matter?

The less seriously the United Kingdom takes non-binding commitments, the stronger the signal to the European Union that anything important needs to be tied down in strict legal provisions.

This is why the daft posturing of the United Kingdom about casually breaking the the Political Declaration matters.

It matters as much, if not more, than if the Political Declaration was “binding”.

In effect: the Unite Kingdom is sending a signal of “don’t trust us, insist on strict legal obligations”.

And this signal is not just being sent to European Union – the signal is now being broadcast to every nation in world, to all the countries where, post-Brexit, United Kingdom may want to have “trade agreements”.

The United Kingdom may think it is saying to EU “screw you” but in fact it is telling the world “screw us”.

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Brexit was an opportunity for the United Kingdom to show the world how serious it was about having an independent trade policy.

Instead, the United Kingdom keeps showing the world how lacking in seriousness it is in entering international commitments

One day this lesson of moral hazard will be learned – if not by current ministers then it will be understood by future ones.

But that may be too late, as something important will already have been lost, and it will be hard to regain.

The United Kingdom government is still not taking Brexit seriously.

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19 thoughts on “The moral hazard of the United Kingdom casually breaching the Political Declaration”

  1. I am afraid to say that I fully agree with what you are saying in this piece. The consequences of this attitude should be clear to anybody, but, alas, this does not seem to apply to HMG. The UK, under the Johnson administration, seems hell bent on trashing our international reputation as a serious, honourable partner. It will become clearer (almost by the day) that “the junta” is not remotely interested in the national good, but that they are serving a completely different (and narrow) agenda. The big question is where this will end when even Daily Mail readers can no longer ignore the truth of the situation?

    1. If it is indeed correct to describe the present administration as a “junta” then it may well end up something like this:

      https://www.newlawjournal.co.uk/content/all-out-war-(pt-v)-the-irrepressible-rise-of-the-father-of-lies

      The text of Mr David Frost’s recent lecture putting forward the UK case for Brexit refers to several “inevitable staging posts” leading up to the UK’s departure from the EU but curiously makes no reference to the Vote Leave slogan “We send the EU £350m a week, let’s fund the NHS instead”.

      The link above is to the latest article in a series published in the New Law Journal that explains that the Vote Leave slogan is a false and misleading statement which materially contributed to the 2016 referendum result and “overawed” MPs causing them to trigger the UK’s Article 50 notification process and put in train a sequence of events that will now lead to the UK’s departure from the EU and thus change the style of the imperial crown of the United Kingdom. It thus is capable of constituting “open and advised speaking” or a treason felony, a criminal offence for the purposes of Section 3 of the Treason Felony Act 1848.

      There is nothing inevitable about the current process.

  2. The great unknown is, to what extent HMG’s belligerent pronouncements are aimed at the UK electorate, and to what extent they are aimed at the EU.

    There is poll evidence in the UK, for example (source: Hansard Society) that 54% say Britain needs a strong leader who is willing to break the rules.

    It may be that HMG will indeed make major and humiliating concessions to the EU. It may be that both parties already know that this will happen. It would be important, however, in such a case, for the Prime Minister to portray the outcome as a famous victory achieved through his belligerence and machismo. (We saw a little of this in 2019, where the “victory” of the WA was achieved by conceding a breach of the Irish red line).

    Most of us have absolutely no idea.

    1. “The great unknown is, to what extent HMG’s belligerent pronouncements are aimed at the UK electorate, and to what extent they are aimed at the EU.”

      It may be unknown but it is not great. It hardly matters. The effects on the international plane will bad all the same.

    2. “The great unknown is, to what extent HMG’s belligerent pronouncements are aimed at the UK electorate, and to what extent they are aimed at the EU.”

      If they’re aimed at all at the EU, then they’re completely insane.

  3. The Brexit Referendum was purely advisory & not legally binding yet was taken more seriously than a general election result. The clear wording of the legislation that gave rise to the Referendum stated that it was not legally binding, unlike the similar referendum carried out in the early days of UK membership.

    The argument as to why the result HAD to happen, & the UK leave the EU, was that it was ‘the will of the people’ & that politicians had to abide by it. The 2019 Election was heavily influenced by, one might even argue that it was solely related to, the Withdrawal Agreement & Political Declaration that had been concluded between the government & EU negotiators. Indeed, the reason given by Boris Johnson for calling an election was to ‘Get Brexit Done’ by having this document passed by Parliament. This would strongly suggest that exactly the same ‘binding will of the people’ applies to the Withdrawal Agreement & Political Declaration. The fact that the public were likely to have no idea whatsoever either of the documents contained is a moot point given that the propaganda around the Referendum was largely hyperbolic.

    I think that a government who doesn’t act with morality & dignity will be viewed negatively by the public & may even become a pariah on the international circuit. It evokes the old adage of “their word is not worth the paper it is written on”. Why would any trustworthy government or third party deal with someone who has a past reputation of reneging on deals? It would be a liability, both financially & politically. Mud stick too meaning it could be generations before respect returns on the international stage. Boris is on the edge of an infinitesimally thin line already & to cross it would, depending on the reason, be very dangerous. Like Trump it may give him a few points with his supporters but the wider community will see it for what it means.

    1. “The clear wording of the legislation that gave rise to the Referendum stated that it was not legally binding…” is not correct: the legislation was silent on this point.

      1. I concede, the legislation itself was silent. I should have said “the wording of the Briefing Paper” rather than the bill.

      2. Agreed. But Hansard records David Lidington underscoring the consultative nature of the referendum and using this as the rationale for not supporting any amendments such as requiring a minimum turnout, a confirmatory referendum or the support of a majority of the UK’s constituent parts. It was not explicit, but it was passed on this basis.

  4. Good analysis as always. Whatever happened to integrity? Johnson’s “official spokesman” was quoted yesterday as saying “Level playing field is an EU construct, not a piece of terminology which we use”. That is clearly untrue given paragraph 77 of the Political Declaration – “Given the Union and the United Kingdom’s geographic proximity and economic interdependence, the future relationship must ensure open and fair competition, encompassing robust commitments to ensure a level playing field”. An interesting question is what is the point of the lie? Its not going to fool the EU who know what is in the Political Agreement. It is presumably designed for domestic consumption so when things come off the rails because the UK tries to renege on the commitment given in paragraph 77 we can (untruly) blame the EU for something they made up which is nothing to do with us. It seems unbelievable the UK is reduced to this.

    1. It is not just about paragraph 77. Look at paragraph 131 in which the UK clearly agrees that the ECJ will have jurisdiction on matter of interpretation of EU law if such an issue comes up in a dispute between the UK and the EU. The language is unequivocal.

      Yet again this was recently presented as a new and unacceptable demand from the EU.

  5. You write ‘Brexit was an opportunity for the United Kingdom to show the world how serious it was about having an independent trade policy.

    Instead, the United Kingdom keeps showing the world how lacking in seriousness it is in entering international commitments’

    This is true but not what Johnson’s government want. If they get concessions from the EU they will double down, they want the hardest of Brexits, ideally with no agreement and the EU to blame. There rely on media support and a solid base that gives them the impression that they are secure for 5 years and a lot can happen in 5 years.

    1. No one knows what they truly want.
      Perhaps they truly believe the promise made during the referendum campaign that there would be plenty of cake and it would be eaten as the UK “held all the cards”. Some of them do believe that if the unicorns fell one after another, this was solely due to May’s team poor negotiation skills and concessions (in other words soft treacherous snowflakes).
      Johnson was overheard when he was still foreign secretary saying that if Trump had been in charge of the Brexit negotiation, he would have gone in very hard and the EU would have buckled and accepted the UK’s requirements.
      He is yet to realise that the UK is not the US. This may be a catastrophic miscalculation.
      Or they really want the hardest possible Brexit as you say.

      We wont know until it’s done.

  6. This thing about being “sovereign equals” seem to me both faintly ludicrous (showboating to the home crowd) and horribly misplaced.
    I reckon the UK would have received far more favourable treatment as a slightly confused ex-partner who’s not quite sure what it wants or what the future may hold.

    You see, pronouncing yourself a “sovereign equal” rather suggests that “we’re going to play this hard, with all the forces we can muster,” at which point the EU (which has been rather gentle thus far in the interests of keeping the door open for a close future partnership) sighs wearily —”Well … as you repeatedly insist …”— and tools up for a big fight! Picking a nasty scrap with a 500lb gorilla, and *insisting* vehemently on “no holds barred” really isn’t a winning strategy.

    At least, it’s a losing strategy for the country. With Johnson and the Brexitists we have a catastrophic principal agent problem: they have made an epoch-defining volume of impossible promises and are about to be shown up as reckless liars and charlatans, so the only important issue (for them) is the blame game (and, tbh, we’ve already been in the early stages of this phase for at least a year).

    So their winning strategy is to deliver a completely hopeless ultimatum to the EU: “Give us all the cherries on top of ‘cake-and-eat-it’ or we blow the whole thing up!”
    That way they can heroically crow “victory” over any concessions the grown-ups throw them in order to reduce the number of lives wrecked, and then get the earliest possible start on endless repetition of whatever crass three-word inanity they choose as the slogan to inculcate the EU’s culpable intransigence in the minds of the fact-poor majority.

    Repudiating the NI Protocol is, sadly, likely to constitute one small step in this dismal parade: this will cause some real problems for the EU (CHEERS for the hard-core Europhobes and, they hope, the tabloid-driven mob!), especially as the remedies available are not straightforward and will take significant time (that will teach them to presume good faith!). It may even happen quite early as (if anybody is actually thinking this through —I know, a wild assumption!— or perhaps realised by instinct) it will not serve in brinksmanship as lack of substantive preparations and engagement will betray its arrival well in advance.

    The EU will be left with little choice, as they will be legally obliged to (prepare to) close the border; EU treaties and law require that the borders be maintained for protection, e.g of citrus-growers from potentially disease-carrying imports excluded from the territory, so if the Commission (as the guardian of the treaties) were not to act it would find itself facing an avalanche of court cases really quickly.

    Ironically, closing the border to all otherwise legitimate trade would actually be far easier than trying to stop smugglers and organised crime alone: they simply send officials to turn back *all* commercial vehicles.

    As the impending problem will be visible from so far away the EU may well, in order to avoid this miserable outcome which they see as completely disastrous, simply decide *exactly* what must be done by both in order to implement the protocol and impose it by threatening with *everything* else they have at their disposal (which, considering this would be a dispute about closing borders is really rather a lot, though it will take a while to authorise).

    In any case, having reached this stage of the process without any reliable guarantee to remove these looming horrors from the horizon, we can expect the most severe sunset clauses to be built into any new agreement, with a guillotine hanging on the NI Protocol.

  7. Thank you David. It is embarrassing to see our government which signed the PD in the name of the UK do a complete u-turn on fundamental commitments on the eve of the negotiation. These were solemn undertakings supposedly given in good faith around the framework of the future relationship. The fact that they are breached before the start of the negotiation -so no excuse can be used about new factors in the negotiation which could give rise to changes- show transparently that these non binding commitments were not entered into in good faith.

  8. Giving and keeping your word is essential to building trust between individuals and parties. To then casually announce that whatever word you gave a few short months ago no longer counts and in effect, we return to carte blanche has the effect as David says, of signalling to the world that our word is not worth the paper it is written on – because it is written on paper.

    In effect the UK is signalling two things, first that it isn’t to be trusted and everything must be nailed down in legally binding form but second, and this is really stupid, it is telling the EU that the UK has very little use for the EU moving forward, we’re bound for the sandy shores of the USA. We no longer have much, if any, use for our relationship with the EU.Good riddance in common parlance.

    The trouble lies in what that tells the rest of the world and in particular the USA. It tells the USA, again in common parlance, that we have burned our bridges or perhaps tunnels with the EU. Leaving the UK entirely at the mercy of Donald Trump and the USA. I’m not sure that Donald Trump even knows the word mercy exists let alone what it might mean.

    For those who are of the view that the UK is ”bullied” by its membership of the EU, you might imagine that we are ”breaking free” of our EU shackles. But in so doing, we are making ourselves utterly dependent on the USA – and we have just told them that we are totally dependent on them before we have even begun negotiating a trade deal (although I believe those talks are ongoing.)

    Trump has said many times that if the UK wants to get a comprehensive trade deal then the UK must leave the EU pretty much completely and leave the dark side and come into and bask in the warm glow of Anglo-US relations.

    Putting aside the political declaration is doing his master bidding. It is tearing up an act of good faith with the EU in the hope, and that is all it is, of the USA bestowing the UK with a ”good” trade deal to replace that which was lost with the EU.

    Once the EU is cast adrift, and our relationship with it beyond repair, what incentive is there for the US to give us a good trade deal. What leverage do we have?

    None is the answer you are looking for!

    1. “that it isn’t to be trusted and everything must be nailed down in legally binding form but second”
      Precisely: and if you have just a few months to negotiate an agreement with massive scope and masses of detail —much of which may seem trivial in the broader context, but is in reality life and death to those directly affected— being able to leave mechanisms for monitoring and enforcement, and remedies to be agreed later is a vital lifeline.

      The very worst thing that could be done at this point in the process is to demonstrate that one cannot be trusted and will try at all costs to evade the consequences of agreements already made.

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