17th May 2022
As any good regulatory lawyer will tell you, ‘compliance’ is better than contravention or challenge.
The question is what can constitute compliance.
From time to time a regulatory lawyer will get a new or inexperienced regulated client who want to challenge or contravene a regulatory rule or policy.
‘Let’s go to court’,’ the novice will say, or ‘let’s tell them that we will see them in court’.
The regulatory lawyer will shake their wise head and say: ‘well, if you do this instead, then you will be complying, and then all the bother will go away’.
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Compliance is usually a better overall legal strategy than confrontation.
And with that view in mind, let us now look at the statement by the Foreign Secretary today to the House of Commons about the Northern Irish Protocol.
Instead of the statement once (notoriously) made by a cabinet minister that the United Kingdom would only break international law “in a very specific and limited way”, the Foreign Secretary said that the government would comply with international law in its new legislation:
“That is why I am announcing our intention to introduce legislation in the coming weeks to make changes to the Protocol.
“Our preference remains a negotiated solution with the EU.
“In parallel with the legislation being introduced, we remain open to further talks if we can achieve the same outcome through negotiated settlement. […]
“The Government is clear that proceeding with the Bill is consistent with our obligations in international law – and in support of our prior obligations in the Belfast Good Friday Agreement.”
In other words, the government is to ‘comply’ with international law – though no doubt in a very specific and limited way.
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So much for rhetoric – on information currently available, it seems the government is threatening what it has threatened before.
The significant difference is that the government is now to threaten this while maintaining it is complying with international law rather than candidly admitting that it is seeking to break it.
It seems that the basis for this intellectual exercise in gymnastics is that the Good Friday Agreement takes priority over the protocol.
That this is the tactic is supported by the references to the Good Friday Agreement at the beginning of the statement and from statements from government supporters:
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As one Northern Irish writer put the notion of such priority in a fantasy context, there can sometimes be “deeper magic”.
What the government appears to be developing is a contention that any unilateral amendment of the Norther Irish Protocol cannot really be a breach of international law if that amendment is by reason of the Good Friday Agreement.
Of course: this is all sophistry and illusion.
The policy substance has not changed, and the proposed breach has not changed, all that has changed is that the proposal will not now be described as breaking international law.
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Yet such a rhetorical shift is possibly significant.
For it may signify that although the United Kingdom government has no fresh ideas about how to resolve the issue with the Northern Ireland Protocol, ministers may now realise that the rhetoric of challenges and outlawry is not necessarily helpful.
And, if this is the case, this could become a useful habit – for the government may find other things that can be brought under the label of ‘compliance’ that may allow it to shift its position in substance.
Smudgery and fudgery, perhaps.
And somewhere in Whitehall, a foreign office lawyer nods their head wisely.
It is all about what ‘compliance’ means, you see.
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It turns out Narnia does not enjoy unfettered sovereignty after all, but must defer to the Emperor-Beyond-The-Sea. Or perhaps even to two of them…
Honestly, HMG can churn out whatever puffery and/or flapdoodle they want, to provide a smokescreen for a climbdown.
If the practical end result is a cessation of Playing Silly Buggers with the GFA and NI Protocol, letting The Johnson continue to claim that the Emperor’s clothes are, in fact, intact is, I think, a price worth paying.
If it looks like a duck, swims like a duck, and quacks like a duck, then it probably is a breach of international law.
How is the government describing it as not a breach of international law plain wrong rather than sophistry and illusion?
As a matter of interest, is i the ECJ that would determine the primacy of the GFA, assuming it ever came to it?
Your question regarding the ECJ is a really interesting one.
As far as I can make out, the answer is going to be “that depends”.
For example the ECJ is the ultimate authority regarding EU law, whilst each individual nation is entitled to write their own laws. Looked at in that context, the UK government’s decision to enact a law to permit it to make adjustments to trade practices relating to Northern Ireland gets very interesting, because if it could be shown that the relevant law was UK law, then UK courts would have primacy.
However, if the EU were to argue that, in fact, the point in dispute came from the UK’s actions in relation to Teresa May’s triggering of Article 50 (of the Treaty of the European Union), then since the Treaty is essentially EU law, it would be referred to the ECJ.
Lastly, just to keep things nice and complicated, the parties might agree that since the nature of the dispute makes agreement over primacy of venue a key part of the issue, then perhaps it could be argued that this is a dispute over the combination of trade *and* primacy of venue and therefore something that a supra-national agency like the WTO was intended to address.
A big part of the problem here – something that has been the case from the moment David Cameron announced that there would be a referendum – is that there is vastly more noise and obfuscation (99%) than fact or clarity (1%).
Having unchained all manner of demons, there appears to be a search for the correct incantation to pin some of them down again.
“Surely the government has always been crystal clear that the Good Friday Agreement has primordial significance.”
No?
So, is it better to break an agreement and not lie; or break an agreement and lie ?
What a state we are in when it appears almost normal to ask such a thing. And to wish for the lie.
Amid the frenzied crackling sound of clutching at straws, are there grounds for optimism?
I hope so.
But, Boris Johnson only lies when he has to. Why might he need this particular lie ?
Well, if he actually intends to go through with breaking the agreement.
Not to solve any problem with the Protocol. He didn’t solve any problem with Brexit. Except the problem of winning his party leadership. And the election.
But he needs to create a problem to rally the troops ahead of an election. Us against them. Britain against Ireland. Britain against the EU.
The DUP needs this too. To recover votes from the TUV and have a chance at displacing Sinn Fein from the top spot.
But predictions are for fools….
“Boris Johnson only lies when he has to”
Hmmm.
This is all simply so Johnson can continue to avoid admitting to the DUP that he lied about the provisions of the protocol.
Not that they didn’t deserve it, for their own chicanery. It is galling in the extreme to hear the DUP invoke GFA cross community support requirements as a reason to scrap the protocol when
1) the DUP have been trying to overturn the GFA since its inception and thought Brexit might finally do the trick and
2) if the Protocol needed cross-community support then surely so did Brexit itself.
I am not sure I could say why with any degree of confidence – certainly there is nothing in the public record to support me – but there is something about this which doesn’t ring quite true.
There are at least two hypothetical scenarios that could have led to the “clarification” from the FS on this matter. One is that, upon hearing the public pronouncement, the Attorney General (or Solicitor General) reacted with, “He said **WHAT**!!??” At which point the climb down was inevitable.
Another would be that, upon hearing of the British government’s latest fantasy football position on the matter, someone representing the EU put in a call to a contact in Westminster and said, “Look, I don’t mean to tell you what you can and can’t do as a sovereign nation… except thanks to terms X, Y and/or Z in the deal we just agreed, you can’t do this. We’ve had a little chat this end and decided that if you attempt to unilaterally redefine the NIP, we’re going to unilaterally revoke our deal with you and you can revert to WTO rules. Have a nice day.”
Obviously there will be other (perhaps equally entertaining and/or hyperbolic variations).
So far, the only one that I just can’t see is the “sudden outbreak of Common Sense” in Westminster.
Not with this lot.
No way.
Any good lawyer can tell the difference between compliance and confrontation.
Equally any good lawyer will know when his client is being dumped on.
There are some good lawyers in Brussels and other foreign places.
I thought the story came from Robert M. Pirsig’s “Zen and the Art of Motorcycle Maintenance”, but having consulted the Archive.org text I can find no trace of it via one of the keywords. It goes like this.
A group of 19th. century American gentlemen, strangers until recently, are passing the time in (pseudo-)intellectual discussion. One of them poses a conundrum: “Two squirrels, A and B, are chasing each other round the trunk of a tree. Now, is A going round B, or is B going round A?” After several attempts by others at a solution our hero(?) says, “Neither: each is going round the tree. That is all.”
The poser (in every sense) replies, “Come, Sir! Don’t try to chop logic with me! “Round” is a perfectly simple American word! Which squirrel is going round which squirrel?
A friend described this passage as an excellent example of the superiority (his word) of rhetoric over logic. He was a psychiatrist, not a moral philosopher.
Well, to step away from logic puzzles and semantics, you might also ask if the Sun goes round the Earth or the Earth goes round the Sun. Both can seem correct, depending on where you are standing. But the best physical answer is that they both orbit their mutual barycentre, which in this two-body case is deep within the Sun.
For the Sun and Jupiter, they both orbit around a point slightly outside the Sun’s photosphere. The solar wobble should be visible from a significant distance away. This is one of the ways we detect extrasolar planets.
We apologise for the interruption to your regular programming, and may resume arguing the toss about arbitrary lines drawn on a map 101 years ago, in an attempt to gerrymander a permanent protestant majority in six of the nine counties of Ulster, by abandoning Unionists in Cavan, Monaghan and Donegal. (The UK considered the partition of Ireland to be such a success that similar “solutions” were implemented to resolve other colonial problems, such as the divided polities in Palestine and British India. Well done us. )
Some Tories are suggesting that Scotland should be partitioned if an independence referendum seems unavoidable. Sounds a bit like Eastern Ukraine.
Are they really? Which bits would the UK insist on keeping (Faslane?) and which would it let go?
Perhaps we should have partitioned the UK between those parts that voted to Remain (London, Scotland, NI) and those that voted to Leave…
A couple of points are being missed on discussion of these issues. But the large one is a misunderstanding of the attitudes of NI Unionists, including underplaying the wide variety and nuance of Unionist positions. Firstly, there is no mystery why some Unionists supported Brexit in the first place, which is that they positively hoped that it would led to a hard border in Ireland – reinforcing partition and reversing the trends towards greater economic integration between the two parts of Ireland. This is still a hope for some. It is matched by fear in the Republic that British refusal to operate the Protocol will force the South to harden the North-South border, so as to retain its own unhindered access to the single market.
Secondly, more liberal Unionists have long seen British and Irish membership of the EEC then EU as highly positive in removing nationalist grievances over partition and making it less of an issue. There was every indication prior to 2016 this was what was happening and why for example claims could be made by Unionist leaders that the constitutional argument had been won. Before the referendum, a border poll was off the political agenda for all but a very small minority of people. This also helps to explain why a large minority of Unionists voted remain in 2016. Support for the Protocol has made a substantial contribution to the Alliance Party’s recent electoral successes. It should also be noted that the leader of the Ulster Unionist Party REFUSED to participate in anti-Protocol rallies. I live in Belfast and during the recent Assembly elections, it was striking that the election literature for the different parties gave a low priority to the Protocol – the DUP led on the threat of a border poll, the TUV on the danger of a Republican First Minister. The Protocol has been weaponised by the Johnson government and to a considerable degree the Unionists are being used as pawns. That is why I find the reference being made by Ministers to upholding the Good Friday Agreement so disingenuous. Prior to its weaponisation by the government for its own reasons, DUP leaders were even willing to speak of the Protocol as offering Northern Ireland the best of both worlds and effectively to acquiesce in it.