9th June 2021
There is a new line-to-take.
This line is that a requirement to comply with legal obligations is to be dismissed as ‘legal purism’.
This line is being promoted at the moment by Brexit minister Lord Frost in respect of the obligations of the United Kingdom under the Northern Irish Protocol (obligations that, of course, Frost himself negotiated and endorsed).
Frost avers that for the European Union to require the United Kingdom to comply with this obligations is to take a ‘purist’ approach.
*
For many years the United Kingdom was protected from the European Union’s legal(istic) approach to its engagement with ‘third countries’.
As one of the big three member states, it generally got its way internally, and had a number of opt-outs for things it did not like.
Trade agreements were left to the European Commission to negotiate: the United Kingdom just benefitted from the results like a teenager benefiting from the washing and ironing magically being done.
And now we are on the outside – looking in on an international organisation that, more than any other in the world, is a creature of law.
And the European Union takes law very seriously.
We are going to have to get used to it.
*
That said: it is not unusual for a party to a serious agreement to want to re-negotiate terms.
And mocking Frost for wanting to change something he so recently approved can only go so far, and it does not rid us of his perceived concerns.
Perhaps there is a case for the protocol to be amended, or perhaps not.
But, either way, it is a folly for him to approach the problem by dismissing legal obligations as ‘purist’.
For, if this is the United Kingdom’s casual approach to law, why would one expect the United Kingdom to abide by any replacement legal obligations?
By attacking the very notion of legal compliance, Frost is not helping the long-term interests of the United Kingdom.
What he is doing is a silly thing, and he should not go there.
The rule of law matters – pure and simple.
*****
Thank you for reading.
If you value this daily, free-to-read and independent legal and policy commentary for you and others please do support through the Paypal box above, or become a Patreon subscriber.
*****
You can also subscribe for each post to be sent by email at the subscription box above (on an internet browser) or on a pulldown list (on mobile).
*****
Comments Policy
This blog enjoys a high standard of comments, many of which are better and more interesting than the posts.
Comments are welcome, but they are pre-moderated.
Comments will not be published if irksome.
“Legal purism” will from henceforth be adopted as a defence by every student caught smoking weed in the union bar, every motorist who gets stopped for speeding, and the pub landlord who sells short measures.
I’m not sure I am capable of feeling more ashamed of this Government or country, but it seems that it plumbs new depths every day.
To think we were once held up as an example and even a model of good law.
It is also strange that the notion of exemplary British diplomacy is no longer a functionable term of reference. Do we, the British, no longer ascribe to such a pre-reflection.
We are going to have to get used to the EU’s approach to the law – and to doing our own laundry.
I think with the present so-called government, we will rather, have to get used to the laundry not being done at all.
If Frost’s approach leads to the unionists becoming violent, and that violence leading to someone’s death, would it be a fair conclusion that Frost and Johnson have blood on their hands? One can only pray that that will never come to pass.
Already there have been mutterings about a return to violence among loyalist paramilitaries, but it’s hard to figure out who the violence will be against.
And indeed whether they even have the capacity. During the Troubles they had frequent assistance from UK state forces. One wonders whether that would continue to be forthcoming.
https://en.wikipedia.org/wiki/Stevens_Inquiries
https://en.wikipedia.org/wiki/Dublin_and_Monaghan_bombings
I have to admit I was pretty staggered to hear that a ‘purist’ approach to the rule of law is to be deplored.
No doubt our police will rapidly be briefed on the implications so that any alleged infringement of the law can be rebuffed by the accusation that enforcers are taking a ‘purist’ approach. I suppose that HMRC has already been advised that worrying about the exact amounts claimed or deducted from tax statements would be far too purist. The list of possible examples goes on.
And you are, of course, absolutely right about the EU being founded on law. When I worked there, a very large proportion of officials were trained in law (administrative law is a major academic subject, especially in Germany) and nothing – almost nothing – could happen without a legal basis. I am sure that Frost’s counterparts simply cannot understand what he means when he suggests they are too purist.
Oh well ….
And of course the Frosty line than the UK cannot enter into any agreement to abide by the EU’s single market rules on animal or plant health without sacrificing post-Brexit sovereignty is also ‘purism’: it ignores years of hard-won agreement by sovereign UK governments in fashioning the rules, and close analysis of the technical aspects of the safety rules before agreeing to them. ‘Single Market’ = ‘Tech Progress’ which Cummings and co never twigged – hence the glamour of their achievement quickly fades – but Frosty holds the line, and purism is maintained.
Good grief.
But, in for a penny…
HMRC is also entirely a creature of statute, and its insistence that I pay my dues is clearly “unreasonable” legal purism too; maybe I could just shrug off my tax obligations on that basis?
I’m sure Frosty has my back.
For the best long-term interests of the UK, you may very well be right. But (just as with the minutiae of contracts) we should look at the picture in the round – so how about the best short-term interests of Lord Frost? After all, without his current approach he’d still be plain old David Frost, washed-up civil servant, and Boris might not be “The Right Honourable” man whom we know today.
So let’s comfort ourself – the surest demonstration of the essential robustness of Great Britain is to withstand weighty blows, both moral and commercial. No time like the present (administration) to test it to destruction!
Well, newish.
Isn’t it of a piece with the earlier idea that the UK might cheerfully “break international law” “in a specific and limited way”, as the Northern Ireland Secretary nicely put it? A variation on a theme, at least. One wonders how the government’s lawyers reconcile themselves to all this.
Well, Sir Jonathan Jones did not, he did the honourable thing and resigned.
I think there’s a subtle difference, Michael – this is more about the very concept of legality and lawfulness being mutable and susceptible to arguments of convenience. Wilfully and openly breaking the law is just breaking the law,
Why should Frost care about the long-term interests of the U.K. when his master only cares about his own perceived short-term interests?
What a brilliant idea. I’m just going to nip out and do a bit of money-laundering.
It’s all too easy to forget that Frost was a diplomat and an ambassador to an EU country to boot. So one must assume he is intelligent enough to know what he and Johnson are up to. This makes it all even more reprehensible than it would otherwise be. To be a cabinet minister under Johnson one must mirror his moral standards and corrupt oneself, if one wasn’t corrupt already.
He was also, at one time, pretty anti what Brexit is about:
http://eu-rope.ideasoneurope.eu/files/2020/11/EMAIL-LQ-JDW-DAVID-FROST-2.png
Which makes his self-serving political posturing now all the more hypocritical and reprehensible – principle, and the truth, matter for nothing, it would seem.
Recently in his blog, trade expert David Henig who as a senior civil servant founded the DTI and was the UK Trade Representative in Washington for three years, commented that he worked with Frost and that he has a very thin skinned brittle personality and who really does not like his ideas contradicted and so a man quite capable of taking the UK over the cliff into full repudiation of international treaties it would be Frost. Making such a man a cabinet member with real executive power was a fatal mistake.
You (well, me actually!) get the impression that Frost and Johnson have not worked out that there is a bigger picture here. Plainly, the plan is to bash Brussels and blame it for every bump in the road that they have lain. This has been the standard position for just about any politician when faced with an EU decison (that they may well have been instrumental in drafting) that will be unpopular at home. I think they may lack the clarity of perspective to understand that the “audience” for their purist drivel is not just the electoral fodder that they hope to (continue to) woo at home, but foreign trade negotiators, civil servants, diplomats and governments.
I think that if Sir Kier gets his act together and gets elected PM, much of the damage can be undone and that the adminstrations of May (to a lesser extent) and Johnson will be regarded as a populist abberation which can be dispensed with much as (we hope) Trump has been.
That’s what we’re meant to believe, but Gavin Barwell and Simon Coveney seem to have summed things up with:
https://twitter.com/GavinBarwell/status/1401805490183606272
and:
https://twitter.com/simoncoveney/status/1401573313189748738
Someone I met in Hong Kong once said, ‘the negotiation starts once the contract is signed’. Realistically, some adjustment and a certain amount of creativity may be warranted to make the NIP work tolerably. The trouble is, the EU being a creature made of laws was one of the problems causing the misunderstanding of it which led to the referendum result. So in terms of popular opinion Lord Frost has a seemingly easy position to maintain by complaining about legal purity to his populist audiences. Since neither the EU nor the treaty he negotiated are that audience he really has to address the problem from a position that is serious about the legal position. If he became serious here he might recover some missing trust and be able to work to clarify his problems to the EU with the aim of searching for a mutually acceptable solution to current and future issues.
So ‘legal purism’ is a tool for ‘building back better’ and ‘levelling up’. The attempt to prorogue parliament was legal purism. When the dust settled following the contest for the leadership of the Conservative party, the victor normally offers a place in the Cabinet to the vanquished in order to enhance party unity. Jeremy Hunt preferred the back benches and is probably waiting for all this to end in tears (which I think it will).
The PM will struggle to hold all of his party together in the coming months (foreign aid budget the current example)and there are quite a few who now already see any invitation to join the cabinet as a risk to damaging the perception of their own moral standards and longer term political future as John Lambert has already commented.
These swashbuckling British buccaneers treat the law as if it were more what you’d call guidelines than actual rules.
“Britannia waives the rules“, I suppose..?
Brilliant!
This is a chilling warning to all Eu citizens in the Uk who think that they are being protected by the settled status regime.
Sign up now, work and pay your taxes in the Uk and conduct business and personal matters there but always be well aware that the Uk are quite capable of changing their minds in the future.
No contract will answer every possible outcome. However in this case the obvious potential problems were plain to see and duly recorded over many years by people with relevant experience. One chancer and his side kick have chosen to play populist and have devised the purist law defence.
The negotiations in Hong Kong may start when the contract is signed but when the contract is with China in Hong Kong or the EU, Johnson has met his match.
Legal purists might claim that slapping someone in the face with a wet haddock(*) is assault, but I feel sure that Lord Frost would be understanding if I were to do it to him.
(*) this is intended to be be humorous hyperbole and not literal incitement to piscine violence against peers of the realm or any other individual, real or imagined. Possibly excepting the current cabinet.
Ah – now it all makes sense: destroying the UK fishing industry is in fact a brilliant strategy to deny us access to wet haddocks, in order to prevent this from happening.
And we thought they didn’t have a plan..!
This administration ran into some more legal purists yesterday. Hopefully it’s a pattern from which they’ll eventually learn of the importance of law to functioning democracies:
https://www.theguardian.com/world/2021/jun/09/covid-contract-for-firm-run-by-cummings-friends-was-unlawful-judge-rules?fbclid=IwAR1G0nsg31NdGnL04bMhBkOPsV5TjR78YrcPzaRemfVbOYQ7PWL-Mpjl2zE
Boris Johnson and Lord David Frost might take the leaf out of Sir Anthony Eden’s book at the time of Suez that was wittily reviewed by Aneurin Bevan on 4th November 1956 at a rally in Trafalgar Square …
“Sir Anthony Eden has been pretending that he is now invading Egypt in order to strengthen the United Nations. Every burglar of course could say the same thing, he could argue that he was entering the house in order to train the police. So, if Sir Anthony Eden is sincere in what he is saying, and he may be, then he is too stupid to be a Prime Minister”.
Johnson and Frost might argue that legal purism is providing training and income for the legal profession, diplomats and trade negotiators as well as the inspiration for many a newspaper column and blog.
They might even style it a Brexit bonus?
To be honest what can be expected of this government, as I am sure this from Frost is likely rehearsal of a little soundbite to use when interviewed and asked how it all went wrong…
What can be expected when there is a list of wrongs from various members of the cabinet and advisors yet they are still there…well except for Dominic.
A housing minister who approved a development for a party donor which he accepted later later was unlawful for apparent bias…still in post
A home secretary who in the past took an unauthorised trip to a country in the Middle East, sacked for that yet allowed to return to a more senior position and oversee a department plagued by among other things Windrush…then found to have broken the ministerial code and having been a bully…yet still in post
Already mentioned tje advisor going for a drive to test his eyes…however if you thought something was wrong possibly wouldn’t it be driving in an unfit state?
We have cronyism and while I accept it maybe perfectly above board, ot sure smells iffy…even more so since the judgement over the contract to Doms mates…apparent bias…surely that is likely to be the same for most of the pandemic contracts considering how many just happened to go tp supporters…oh and Hancock is still in place as well
Boris with his misleading of Parliament as has watched over 20 million times…has he even corrected one of them? Just seems its one rule for them and another for everyone else…so what can be expected when they don’t accept the rules, the law applies to them?
We’re now there aren’t we! That place where you enter the building and you’re still standing on the outside created by the ‘party of Law and Order’ whereby the biggest Law breakers appear to be the Government, that was once the party of Law and Order. Never has one Law for them and one Law for us been so fitting.
This isn’t even a bumpy ride. It’s the scariest Roller Coaster ever and there’s not even an emergency stop for sane people to get off.
DAG: “By attacking the very notion of legal compliance, Frost is not helping the long-term interests of the United Kingdom.”
Someone should tell Dominic Raab:
Indeed: it seems the government is asking the EU to apply the existing agreement in a more “pragmatic” manner (which means essentially that the UK won’t have to meet its existing obligations: more aspirations or guidelines than rules). Backed by the more or less explicit threat that, if the EU takes the “purist” or “legalistic” approach of insisting that the UK actually meets the obligations it has signed up to, we will just breach them anyway. No doubt in a limited and specific manner. Just a technical breach.
It would make a difference if we had shown any serious intention of trying to meet our obligations, but it was proving to be more difficult than expected.
I was intrigued by references to the signing of an agreement being the start of negotiations in some cultures. Perhaps that is where we are going, although I can’t see it working very well with a creature of law like the EU.
For the future, if a counterparty knows there is a good chance you may not respect an agreement, that has a significant impact on what you can agree, and on what kind of enforcement mechanisms, dispute resolution, and/or potential countermeasures the counterparty builds in.
It also undermines the UK’s credibility when we complain about other states breaking their word. A good reputation is hard won and easily lost.
Surely the concept of legalistic purism as a denial of justice is well founded in English law?
As Lord Reid said in R v Houghton and Smith (1974) 2WLR1
“The life of the common law is not logic but common sense”