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.
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_Šefčovič
As 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?
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.
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
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.
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