4th September 2021
Here is a speech from David Frost, the minister responsible for what follows from Brexit.
And here is a passage from that speech:
‘The difficulties come from the way the Protocol is constructed, not just the way it is being implemented.’
This sentence is not only key, it is crucial.
Of course, it is not enough for those who are sceptical of (or hostile to) the government’s Brexit policy to jeer that ‘you signed it’.
The onus is on anyone interested in the matter to be as constructive as possible – even if that is to resolve the mistakes of others.
But.
But but.
But but but.
It has to be said that this protocol was not only signed by this government, it was negotiated by this government.
The protocol is within an agreement for which this government campaigned for and obtained a mandate.
The protocol flows even from a change of policy made by this government against the ‘backstop’ policy of the previous prime minister.
And the person for the United Kingdom who was primarily responsible for negotiating and thereby the content of the protocol?
David Frost.
The problem we have now as a nation is that International agreements – like other legal agreements – cannot be set aside just because of a ‘bad bargain’.
Let the buyer beware, says the maxim.
Else there will be buyer’s remorse.
If a party to a negotiated agreement does not want to comply with a certain provision, then that party should not sign that contract.
For once it is executed, it is binding, for that is the intention of legal agreements.
We all know the rushed circumstances of how the United Kingdom signed the agreement.
And that time pressure was entirely self-inflicted – by the United Kingdom government.
It was as preposterous a situation then as it seems now.
But supporters of Brexit clapped and cheered at the time, and hailed ‘Brexit getting done’.
And now the government is stuck with what it signed.
Yes: one should be constructive if one can be as a critic of the government’s predicament.
But ultimately the government has to brace itself that it will have to comply with what it freely agreed to.
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Eco, 1995: “Action being beautiful in itself, it must be taken before, or without, any previous reflection. Thinking is a form of emasculation.”
Hardly constructive but difficult to resist: one by one the chickens are coming home to roost.
“Brexit is not a thing in itself” ?
Some two years ago Johnson was banning the B word from Government presumably because his deal was precooked in the oven.
“our friends in Europe” ?
Who are these people exactly? Some Eu citizens are asking questions and would like a list of names.
“to rebuild the country from some of the distortions created by Eu membership” ?
There is not the slightest attempt to list any of these “distortions” to be ditched and nothing whatsoever about those intended to be kept.
“the truth is…” ?
These words are manna from heaven for any lawyer during cross examination.
“there is no doubt this is a challenging moment…” ?
In stockbroker language if you see a word such as “challenging “ in a Company’s annual reports then it is best to sell any shares held quickly.
If this was an undergraduate essay the speech would get a D minus at best.
Whoever may be the negotiator, he must be negotiating in accordance with the instructions of his master, Ultimately, responsibility remained with the Prime Minister. That is why he is ‘Prime’!
Whilst you are of course perfectly correct in law, in 30 years in investment banking I saw many deals renegotiated after they were signed. Whilst I’m not suggesting that international treaties are or should be negotiated with the same casual cynicism as say, some private-equity deals, our novice negotiators clearly thought otherwise. There are historical precedents for taking this approach in inter-state relations – the 1930s come to mind – but they’re not good ones. We’ll all have ringside seats for the denouement. My money’s on the EU.
Presumably renegotiated by the party with most leverage
(notwithstanding the madman gambit)
But that doesn’t sound like the UK
IMHO I guess that it has something to do with the different
views from the 2 negotiating Partys what law means
aka common law vs codified Law.
2 very different systems and as I have a real problem to understand the concept of common Law, I guess many in the UK have real problems to understand codified law or even think it is outdated napoleonic law on which you can look down or don’t have to take serious because you know “its French” and or something like this.
It would be rather surprising that different views of what law means should enter into any kind of consideration, since this is international law, a branch of law that is well-known to both EU and UK lawyers. Britain has negotiated and ratified international treaties for very long now. A problem that could have presented itself, is that the British politicians negotiating the treaty chose not to listen to their expert advisors and proceeded from common law assumptions. That would, however, not carry very far now the treaty has been signed and ratified.
The only fly in the ointment to this point is the fact the U.K. we’re an EU Member State for 40 odd years so they really SHOULD understand the nuance.
i do not disagree with any of your points but to be honest it is not easy to find a constructive point concerning Brexit and the crew that is piloting HMG at the moment.
A great post, obviously seen and written with a certain optic.
Frost also says before “‘The difficulties come from the way the Protocol is constructed, not just the way it is being implemented.’”
That:
“We have seen the impacts of that lack of balance play out on the ground, both in terms of political and societal impact in Northern Ireland, in trade diversion, and in the impact it has had on the essential economic ties between Northern Ireland and Great Britain…”
You can almost see Frost using this speech as part of a choreography of what’s coming up next ……. likely invocation of Article 16 and ‘appropriate’ and proportional safeguarding measures.
He could perhaps have added, with a degree of humility that, post Treaty, mistakes were made in its construction? And, history shows that bad treaties just don’t tend to have much longevity.
Looking forward, at least Frost gives transparent options to the EU going forward – this has to be a good thing.
A choppy Irish Sea indeed.
true the next stunt could be triggering Art 16, but I would place a fiver on the EU not to start talking to him before 2022. As they have a signed treaty and a court to go to, why should we talk.
We have a General Election in the nexts Weeks here in Germany and normaly it takes some time to form a coalition Government.
Before next year is see no chance or appetite for MORE talks.
What can I say other than good luck and merry Christmas.
Johnson isn’t a details man – his attention span appears to be very limited. This is a man who looks for the punchline in every situation, whose focus is on the witty repartee, whose attention is on the audience. He is all about the applause.
David Frost, by contrast, has a strong CV of service in diplomacy and working with the EU, which makes these negotiating flaws something of a mystery. [ I note that he studied medieval European history, itself fraught with treaties, betrayals, and general shenanigans. Not exactly a barrel of laughs, and perhaps that is the nature of this man.] Did Frost simply lose focus when he was drawn into Johnson’s orbit? Was he blinded by Johnson’s charisma in the early days of Brexit? Does this account for how a details man was insufficiently detailed at the negotiating table? Does he not see the irony of his denials of the “benefits” he so earnestly negotiated.
Or could it more simply be that, in response to instructions from his master – Joker Johnson – he just punted his way towards something, anything that would get him across the ‘winning line’, knowing all along that this would eventually be seen for what it is: a pyrrhic victory.
What is perhaps surprising about Johnson, the classics student, is that he seems to have learned nothing from reading Plutarch. Or perhaps he wasn’t paying attention during that lesson Roman history.
On David Frost’s “strong CV”, Nick Cohen had this to say about him in February:
“Frost moved from Oxford to the Foreign Office, where he became a figure familiar in many workplaces: the frustrated middle manager, whose resentment at an indifferent world that overlooks him gnaws at his pride.”
https://www.theguardian.com/commentisfree/2021/feb/20/david-frost-rise-eu-uk-relations
Admittedly the protocol negotiations were trying to fit a round peg in a square hole so maybe nobody could have done it. But carrying on the way he did smacks of a lack of integrity.
I’m grateful to you for pointing me in the direction of Nick Cohen’s article, which I’d not seen before. I should explain that I did not intend to mean, in using the term ‘strong CV’, that he was any good at these roles, simply that he had experience, which one could reasonably expect would help him negotiate with the EU. Cohen describes a mediocre man, and I can’t see any evidence to suggest he is wrong.
Cohen’s analysis also suggests that he is probably is just Johnson’s puppet, and perhaps less clever than even I’d given him credit for. Or more calculating. Or just totally out of his depth.
I’m sure political historians will find a place for him in their indices, but perhaps not for the reasons he’d prefer.
Surprising admission, though I would have preferred the wording ’the way it has been constructed’, rather than blame the document itself. How many politicians read this agreement and how many lawyers? I suspect it was well known and bish-bash-boris dismissed advice with a “we’ll sort it out later” or even “lets just change our copy and blame them”!
I speak as a solicitor who job it is to negotiate agreements mostly twixt warring ex souses; or to sort ot terms for what everyone thought a judge said. The object ALWAYS is to minimise misunderstandings and to ensure that if things do go wrong the agreement (or court order) can be enforced.
Does not Frost understand this. Which bit troubles him?
Sorry abt drafting errors…
Disagree. Because…
They aren’t interested in constructive input.
There route out of this shambles is simple, clear – and anathema to its authors.
This being the case – and it is – my right to bellow “you signed it!” at the top of my lungs is absolute, and one I fully intend to continue to benefit from.
It beggars belief that David Frost is said to be a product of Oxford culture or that – as liz arundell comments before me – « (David Frost) has a strong CV of service in diplomacy and working with the EU, which makes these negotiating flaws something of a mystery. [ I note that he studied medieval European history, itself fraught with treaties, betrayals, and general shenanigans. Not exactly a barrel of laughs, and perhaps that is the nature of this man.]»
Culture is intellectual equilibrium, critical reflection, sense of discernment, a mean to abhor any simplification, any Manichaeism, any partiality.
I think Nicholas Coulson has the right approach. Don’t get too sweaty over the agreement being a ‘legal text’. Any text whatsoever is merely little marks on bits of paper. What matters is the human will behind that text and the politics involved. If all sides are willing to change then change.
Seems to me we have at least two sorts of legal agreement – transactive ones and interactive ones. Transactive ones like buying/selling a house. A definite thing unlikely to change. Or we have interactive agreements like Brexit. We operate this way today and that way tomorrow if we can scribble a few extra words.
Some agreements, divorce for example, may get played at as an interactive agreement – until one or both parties wake up one day to find it has gone transactive. For Brexit we are still in that twilight zone.