9th February 2021
One delight of the internet age is that you are more likely to see copies of original political correspondence.
Before the late 1990s you could have a serious interest in politics and public affairs and never see a copy of an official letter on headed paper.
Now, though usually when it suits a politician or official involved, you will see formal correspondence as images attached to tweets or embedded in news articles for you to scroll and look at for yourself.
On the face of it, this is a boon for transparency: you get to see what these letters say for yourself, rather than relying on the spin of ‘a friend of the minister’ or the rushed summary of a busy reporter.
But this is somewhat illusory, for three reasons.
First, as mentioned, one almost always only gets to see what it suits somebody with power for you to see.
Second, some of the politicians most adept at the game of letter writing for publication – such as Michael Gove at the cabinet office – are in charge of government departments with miserable records in respect of freedom of information.
And third, the letters are invariably political rather than administrative devices, written with the audience of supporters and media in mind, rather than to inform the recipient.
So, notwithstanding the grand headings and formal paraphernalia, such letters should be presumed to be mere propaganda and gestures, unless a more serious nature can be shown.
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But.
Sometimes such letters can be unintentionally revealing.
And two such telling letters entered the public domain yesterday.
The first is from Gove and it is in respect of article 16 of the Irish protocol.
2020_02_02_-_Letter_from_CDL_to_VP_ŠefčovičAs with any Gove letter the first task is to strip off the all the performative politeness, as one would do with the needless extra wrapping of something that may be useful underneath.
But what I saw as notable about this letter was not the supposed main subject of the botched invocation of article 16 by the European Union – on which the United Kingdom has a fair point, though here it is being shamelessly exploited – but a comment made by Gove in passing.
‘We were not consulted on this Regulation either.’
There was no formal need for the European Union to have consulted the United Kingdom on this new regulation.
The previous version of the regulation – which had cited article 16 – did mean that the United Kingdom should have at least been notified in advance.
But this was not the case with the replacement regulation.
The revised regulation was entirely a matter for the European Union.
And the reason why it was entirely a matter for the European Union is, well, because the United Kingdom has departed from the European Union.
Not being part of the formal decision-making, policy-making and law-making of the European Union is what Brexit means.
Of course, Brexit also means many different other things to different people.
But the one thing which Brexit has to mean is that the United Kingdom is no longer part of those institutions of the European Union that make decisions, or formulate and apply policy, or adopt and implement laws.
This is the necessary implication of the United Kingdom ‘taking back control’.
What did Gove and other Brexit-supporting politicians think Brexit meant?
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Another letter from another minister was from George Eustace.
New: Here is the letter George Eustice sent to the European Commission’s Stella Kyriakides this morning about UK shellfish exports to the EU, first reported by PoliticsHome on Friday https://t.co/JzuVrjZ7mt pic.twitter.com/iZbIyuHe1S
— Adam Payne (@adampayne26) February 8, 2021
Here the United Kingdom government is ‘surprised’ that the European Union has ‘changed its position’.
One fears that the United Kingdom will have to get used to be being ‘surprised’.
(Though any minister or official who is genuinely ‘surprised’ by what a counterparty does is not doing their job properly – as the awareness of and planning for possible contingencies is the basis of any sound public policy.)
Again, as with Gove’s letter, the United Kingdom government does not appear to realise that the United Kingdom is now merely a ‘third country’ for the purposes of European Union decision-making, policy-making and law-making.
Unless the European Union has agreed otherwise in the withdrawal or the trade and cooperation agreements, the interests of the United Kingdom has no more purchase on the conduct of the European Union than any other non-member of the European Union.
That is what Brexit means.
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There will be, no doubt, many more complaints from United Kingdom ministers – and from their political and media supporters – about the European Union making decisions, formulating and applying policy, and adopting and implementing laws, that are not to the advantage of the United Kingdom.
Supporters of Brexit tended to emphasise the positive-sounding ‘taking back’ of ‘control’ – but the immediate and necessary consequence of Brexit is instead the formal exclusion of the United Kingdom from general European Union decision-making, policy-making, and law-making.
And so, just as ministers complaining about adverse judicial decisions is the sound of a working constitution, the noises of ministers unhappy about what the European Union does and does not do is the sound of Brexit.
The sound of a country miaowing at the door wondering if it can be let back in.
— Mike Bennett (@MikeHypercube) February 8, 2021
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FOLLOW-UPS
From time to time, this blog will link to interesting things relevant to previous posts.
On yesterday’s post on the Queen’s Consent, please see these further Guardian reports (here and here) and also this informative article by Adam Tucker, the leading constitutional law academic on the subject.
On the post on ‘Sovereignty’ and Brexit, many have pointed to this post by Alastair Campbell.
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I acknowledge the absolute right of the EU to make these sorts of determinations. But it is a little disappointing to be on the receiving end of these sorts of decisions as they embody some of the protectionist and bureaucratic inclinations of the EU which were one of the forces behind (some of) the anti-EU feeling in the UK. Still, now we have to deal with this until we rejoin.
Well, look at some of the “protectionist and bureaucratic inclinations” of Canada when it comes to the import of cheese into Canada.
https://www.pcb.ca/post/importing-cheese-into-canada-its-not-that-simple-6683
Just as an example that free trade around the world doesn´t mean unregulated trade.
“But it is a little disappointing to be on the receiving end of these sorts of decisions as they embody some of the protectionist and bureaucratic inclinations of the EU which were one of the forces behind (some of) the anti-EU feeling in the UK”
Your disappointment is misplaced. The EU is merely exercising its own version of sovereignty, and looking after its own best interests, which is PRECISELY what it should be, and is, doing.
This exemplifies what I think will be a persistent strategy of Brexit-supporting politicians – to continue to harp on the “unfairness” of EU places and processes, and to present the UK as a hapless victim.
The benefit is a continuing pretext to evade some serious difficulties in acknowledging the effects of Brexit and in facing up publicly and frankly to some hard decisions. And the benefit is, of course, only t the politicians, not to the nation.
We can’t be surprised at this – it’s been the pattern since the referendum – but it’s important to keep illustrating it, in the hope that, sooner or later, we’ll find some leaders who will actually address it
Indicative of the paucity of talent in the Cabinet. Leaving the club means no say on the rules, what didn’t the Brexiteers understand?
For the amusement of your readers (from The Independent 17/11/18) from Nadine Dorries (Con MP, Brexiteer):
“Theresa May’s Brexit deal has been slammed by arch-leave MP Nadine Dorries – because it means the UK will be left without any Members of the European Parliament.
The Tory backbencher, who campaigned tirelessly to get the country out of Europe, said Ms May’s deal would leave the UK without any influence in Europe.
“This is a very sad place to be,” she told Sky News. “But unfortunately, the future of the country and of our relationship with Europe is at stake. This deal gives us no voice, no votes, no MEPs, no commissioner.”
Her words were met with astonishment online.
“Ladies and gentlemen, this is the quality of our politicians right now,” one Twitter user noted. “The intellect of a boiled cabbage.”
Author – and Remainer – JK Rowling was somewhat more succinct. She tweeted an emoji of a head exploding.”
Little more needs to be said about Brexiteer’s grasp of international politics.
This is depressingly predictable and it was, indeed, predicted.
Nevertheless, you perform an essential service in pointing out that it is, indeed, happening.
The essential question is: how can this be communicated to the electorate?
That is to say: presented as simple facts and a straightforward explanation, so that the inevitable distortions of the truth promulgated by the mass media – and by our elected government – are widely seen to be the dangerous deceits that they are.
Speaking the truth is the beginning: communicating it effectively, so as to effect a population-wide transition from deceived to well-informed, is another matter entirely.
I hold out no hope whatsoever that the deluded faction of our elected politicians can be helped; the clever and mendacious ones will, of course, change what they say if there is an incentive to do so. But neither you nor I can offer such incentives, nor should we; it morally wrong and ultimately pointless, for such people do not change what they are and what they do.
This is not a counsel of despair. I find myself in a forum by and for legal professionals, who will from time to time find themselves advising a client who does not see the facts, and will not. Or won’t, unless the explanations are persuasive as well as factual.
What are the tactics of an effective professional advisor?
“The essential question is: how can this be communicated to the electorate?”
Maybe you could set up an “opposition party” that would stand for parliament and try to correct the government’s Brexit errors.
“Oh”, as our host would say.
It may be a long stretch on my part but I cannot help thinking also of the executive powers that this Government has given itself, in the name of Brexit, which necessarily limit the role of Parliament in regulations, and combine that with the paucity of scrutiny of trade deals & treaties, even consultation with the very businesses that’ll be effected.
In short: blame.
It is an effective lie, Nick, but a very dangerous one.
I do not know how to counter it, for it is a very seductive lie among people who are angry, but unwilling to confront the fact that they have been lied to.
We seem to be reminded almost daily that the current administration does not appear to recognise that having left the EU the UK is now a “third country” – with fewer rights than Albania, (remember the “Albanian model” put forward by Gove?) which is, however, trying to join the EU. The sense of entitlement is palpable. Maybe Gove et al actually believe their delusions.
But it is all of a piece with the Bully / Victim narrative of the Brexiters: threaten themselves to break international treaties signed weeks / months ago for short term political expediency and then cry foul when not invited into EU counsels to which they have no right to be consulted.
There is nothing bad about including other countries in discussions before the EU makes a decision. Norway has representatives invited to the EU Parliament. They have no right to be there. There is nothing about this in the EEA Agreement. They don’t get a vote. But they are invited nonetheless because some decisions of the EU Parliament impact Norway.
Of course, our relationship with the EU is not in the same place as Norway’s. But it would be good to get to the point where are given advance notice of EU legislation that directly impacts the UK.
Yes it would be good to get to the point at which the UK is invited to give its opinion ahead of EU decisions that will affect it, and preferably to formalise the relationship with the EU as Norway or Switzerland have done.
We are light years away from this position. Until the likes of Gove stop asserting the UK position in terms so trenchant, the UK won’t get there.
In any relationship there has to be compromise. If the UK continues to assert that sovereignty is incompatible with decisions being made other than in the UK, such compromise won’t be feasible. The Brexit government has backed itself into a corner, where getting a good deal is a sign of weakness. The best we can hope for, in the short run, is the UK backing down but not talking about it.
In the long run, what is left of the UK might realise that the best way to influence decisions of trading block is to be part of the trading block.
You say in connection with Regulation (EU) 2021/111
“The previous version of the regulation – which had cited article 16 – did mean that the United Kingdom should have at least been notified in advance.”
I think there are three problems with this:
1. There is no mention of Article 16 in the published Regulation (30/1/21)
2. There appears to be only one version of the Regulation (unless you know better), here:
https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A32021R0111
3. If Article 16 had been cited, then there would have been a requirement both to notify and to consult as per Annex 7 of the NI protocol.
https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/840230/Revised_Protocol_to_the_Withdrawal_Agreement.pdf
Gove claimed in his email of February 2nd to Maroš Šefčovič:
“the Commission activated, however briefly, Article 16 of the Protocol.”
They didn’t. However, the effect of the regulation was, on the face of it, to breach the terms of the protocol.
Yet in order to activate Article 16, either the EU or UK must follow a prescribed process “governed by the procedure” set out in Annex 7 as follows:
1. Where the Union or the United Kingdom is considering taking safeguard measures under Article 16(1) of this Protocol, it shall, without delay, notify the Union or the United Kingdom, as the case may be, through the Joint Committee and shall provide all relevant information.
2. The Union and the United Kingdom shall immediately enter into consultations in the Joint Committee with a view to finding a commonly acceptable solution.
Thus there is a requirement first to “notify”. And there is a secondary requirement to “consult”. Importantly, both notification and consultation are to take place prior to activation.
The annex continues:
3. The Union or the United Kingdom, as the case may be, may not take safeguard measures until 1 month has elapsed after the date of notification under point 1, unless the consultation procedure under point 2 has been concluded before the expiration of the state limit. When exceptional circumstances requiring immediate action exclude prior examination, the Union or the United Kingdom, as the case may be, may apply forthwith the protective measures strictly necessary to remedy the situation.
4. The Union or the United Kingdom, as the case may be, shall, without delay, notify the measures taken to the Joint Committee and shall provide all relevant information.
A whole month must elapse until the safeguard measure may be taken, unless the consultation period has concluded beforehand.
In fact in his email Gove cited only the first provision of the annex, notwithstanding that it was irrelevant to the problem at hand. The problem at hand was that the regulation seemingly had the effect of imposing the safeguard measure available under Article 16 without it having been activated. There are a number of reports suggesting that the Commission had plans to activate Article 16, but I’ve not seen a confirmation of this. In other words, the whole affair may have involved an embarrassing oversight that nobody wanted to admit to – a serious one in its effect, but an oversight nonetheless if nobody bothered to consider the effect of the regulation on the protocol. But there does not appear to be any discernible intention to override the protocol.
The resolution was not to be found through the processes of the NI protocol, but outside them. And that is, in fact what happened very soon after, with the Irish taking the initiative.
https://www.rte.ie/news/politics/2021/0129/1193953-north-vaccine-brexit/
See also:
“Following discussions on 29 January between the European Commission President von der Leyen, Irish Prime Minister Micheál Martin, and UK Prime Minister Boris Johnson, the Commission announced that it would ultimately not trigger Article 16 of the Northern Ireland Protocol. Ms. von den Leyen noted that COVID-19 vaccine facilities in the United Kingdom would also be supplying the European Union, that certain COVID-19 vaccine deliveries in the European Union will be pulled forward, that there will be an increased COVID-19 vaccine supply for February and March, and that production capacities in Europe will be expanded.”
https://www.jdsupra.com/legalnews/eu-imposes-authorization-requirements-3569490/
You are right, that there would no requirement for the EU to consult with the UK with regard to the making of a regulation that had no bearing on the NI protocol, yet both you & Gove appears to be mistaken that a new regulation has been made.
It looks to me as if the original regulation stands. Do please correct me if I’m wrong.
https://ec.europa.eu/commission/presscorner/detail/en/QANDA_21_308
It has been clarified that the regulation does not affect the protocol. It has been clarified that Article 16 was not activated. It has been clarified that Article 16 will not be activated in connection with the regulation.
“There appears to be only one version of the Regulation (unless you know better)”
“Do please correct me if I’m wrong.”
Please see my previous post that published the botched regulation: https://davidallengreen.com/2021/01/what-is-article-16-of-the-northern-irish-protocol-and-what-on-earth-was-the-european-commission-thinking-includes-a-copy-of-the-now-deleted-proposed-regulation/
Thank you
Oh well done! And it explains why I couldn’t find it.
What an extraordinary thing. The regulation published in final form with provision for it to take effect immediately refers to the relevant article in the protocol but pays no heed to the article’s governing procedures contained in Annex 7, which stipulate both a notification & consultation requirement proscribing the immediate application of the safeguarding measure.
I’m reminded of your contention that the Article 50 notice could have been lawfully notified on the side of a catapulted cow. In this case, since Article 16 cannot lawfully be triggered/activated/invoked/notified by recitation in an EU regulation, but only by following the rules in Annex 7, I would argue that it wasn’t, even if the EU thought it was.
Excellent work!
On the shellfish, what exactly has the EU done or not done?
UK traders were able to export to the EU as if the UK were a member state until 31 December 2020. That is no longer possible. The UK is now a third country, by its own choice.
As I understand it, the UK expected the EU to change its law to allow imports of live shellfish for human consumption from Category B waters (for depuration in the EU) from April 2021. That is no longer happening. https://www.bbc.co.uk/news/uk-politics-55903599
I don’t see how the UK has much room to complain when the EU keeps its laws the same. The fact that UK traders were able to sell into the EU without impediment for many years is really beside the point. Do the EU regulations currently allow shellfish to be imported from a third country for depuration in the EU or not? If not, we in the UK can hardly expect the EU to change its law to suit us.
On Article 16, the EU made a serious strategic mistake in publishing draft regulations that sought to invoke Article 16, and a technical mistake in failing to give the required notice, but of course those draft regulations were never published in the Official Journal so they never came into effect. Here is the actual regulation. https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A32021R0111 No harm, no foul. Much the same effect could have been achieved by the Commission pointing to the possibility of invoking Article 16, if there was evidence of diversion via Northern Ireland to defeat the vaccine export controls.
That said, at least Article 16 provides for the possibility for such emergency implementation. It is certainly no worse than the UK government introducing a draft bill seeking domestic powers to break the UK’s binding obligations under international treaties in “a specific and limited way”.
The UK is simply going to have to get used to the EU doing what it wants for its own reasons, and without much regard to the impact on the UK as a third country.
On the first item, doesn’t the UK have to apply EU customs rules to goods moving between NI and the rest of the UK ?. To do so, isn’t it inevitable that the UK does need some sort of consultation or forewarning of changes to those rules ?. Isn’t Gove’s comment therefore valid and aren’t his following sentences necessary to rectify the lack of forewarning or consultation by setting out the UK’s understanding of the new regulation in order for the EU to object if they disagree ?.
Isn’t this what Art 13(4) of the NI protocol means when it says “Where the Union adopts a new act that falls within the scope of this Protocol, but which neither amends nor replaces a Union act listed in the Annexes to this Protocol, the Union shall inform the United Kingdom of the adoption of that act in the Joint Committee.” ?.
I am no lawyer, but the second sentence of the recitals of EU 2021/111 says “Having regard to Regulation (EU) 2015/479 …”, a regulation which is listed in Annexe 2 to the NI Protocol (see para 4 of that Annexe). It does therefore have the potential to fall within the scope of the Protocol. At the very least, it is important for the EU and UK to be clear whether EU 2021/111 does or doesn’t fall within the scope to the Protocol and that is exactly what Gove addresses in the absence of any forewarning from the EU.
However, far more important than the intricacies of the agreements and Regulations is the fact that we have situation where, for example, food moving to supermarkets in NI, and which presents no significant risk to the EU is being delayed. That of itself is undesirable, but in the context of NI, the Belfast agreement and the sensitivity of the ‘border’ in the Irish Sea to the Unionist community it is an issue that needs urgent attention and change. Surely that is the issue here, not yet another opportunity for one set of Brexit zealots to point at the supposed shortcomings of the zealots on the other side of that divide.
I think you are missing a very important point. Of course the UK, now it is not a member of the EU, cannot rely on any legal duty on the European Commission to consult the UK on any act of the EU or in the formulation of EU regulations, but the UK and the EU are allies and close trading partners. It is simply sensible and proper that the EU and the UK should show one another courteous mutual respect and avoid pointless hostility. The EU appears on the contrary to desire to make difficulties for the UK not because they are unavoidable but deliberately in order to punish the UK. That is despicable and wholly inconsistent with being allies and will not succeed either in destroying the UK or in advancing the EU
In your last sentence you go from an ‘appears’ in the sentence before to a full rant. Does not make sense.
I used this analogy to a confused brexit supporter a while ago when they were complaining about the Europeans “screwing us over. ” Imagine Harry Kane left Spurs and joined Man City. When Man City next played Spurs would you expect Spurs’ defenders to stand off Kane and let him have some free shots or leave him unmarked at a corner on purpose? That scenario would be ridiculous. Kane would have gone from team mate to rival and so should be treated as such. I’m sure he’s a good guy so he might be friendly enough with former team mates but professionally Spurs will now have to stop him. So it is with brexit. The UK has left the team and so is now a rival so where EU interests conflict with UK interests the EU will try to look after their own interests. Anyone not realising this is either genuinely thick or being disingenuous for political reasons
Brexiteerism is a national security threat to the UK and it needs to be purged. The “Exceptionalism” needs to be gutted soon.
I think this is calling for a talented musician to compose a song “The Sound of Brexit” with the key points of this post in the lyrics.
Sadly I have no musical or lyrical talent. None.
On another tack, it is slightly odd to see Michael Gove blustering with righteous indignation in this letter about the imperative to protect the Good Friday Agreement, when his pamphlet “The Price of Peace” published by the Centre for Policy Studies in 2000 described it as a “humiliation” and a “moral stain” (p.55) equivalent to appeasement of the Nazis (e.g., p.14: variations on “appease” appear more than a dozen times, because it would be a shame to sound a dog-whistle only once). Here is a copy http://www.finfacts.ie/MichaelGove.pdf
He has continued to defend that position relatively recently, e.g. https://www.irishtimes.com/news/world/uk/michael-gove-a-fanatic-who-would-damage-peace-process-1.2710224 https://www.bbc.co.uk/news/uk-northern-ireland-48573680
(He must have been delighted with the line “What a tangled web we weave when first we practise to appease” (p.23). But fascinating how many sources repeat the seeming misquote “mortal stain” when that phrase does not appear at all.)
Gove’s recipe for “peace” was an end to the peace process, and the reinstatement of “resolute security action” (p.58). We can get a sense of the uncompromising action he has in mind, having earlier (p.12) praised the “[e]ffective intelligence work” of RUC Special Branch and “deployment of lethal force” by the SAS in the 1980s, such a delightfully calm period in the history of Northern Ireland.