Author: David Allen Green

Sovereignty, again

9th March 2023

In law and policy commentary – especially since 2016 – we go from the general to the particular, and from the particular to the general.

We swing constantly between the grandest constitutional concepts – the separation of powers, the rule of law, sovereignty – to the exact wording of particular clauses and other texts.

It really should not be this exciting, but it is.

Today we will look at sovereignty again.

And some of you will complain about who I am about to quote, but it is an example of a frame of mind which still has not gone away.

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Sovereignty is generally about the ability of states to decide things as they wish and to do things (or attempt to do things) as they want.

More exactly, it is about the autonomy, capacity and legal personality of states.

One general feature of sovereignty is therefore about the ability of states to enter into agreements with other states, or not.

Just as it is a general feature of adulthood to enter into various legal relationships, or not.

(And please note, the uses of “general[ly]” means, yes, there are exceptions, so no need to scroll down to list them in a comment.)

It is thereby an exercise of sovereignty to enter into treaties and to become a member of various international organisations.

That is what sovereign states do.

And they do it, in part, because they can.

As such, to say that a state being party to an international agreement is a negation of sovereignty is to fundamentally misunderstand what sovereignty means.

The very fact that the United Kingdom is a party to the United Nations shows that it is a sovereign state.

Indeed, one useful working definition of what is a sovereign state is whether it is (or is capable of becoming) a member of the United Nations.

And membership of an organisation will generally confer rights and impose obligations.

If a state does not want to have those rights and obligations then it can leave, either by an agreed exit process (such as the once-famous Article 50 of the Treaty on European Union) or by treaty or even by denunciation.

One of the most telling passages in the story of Brexit was in a government white paper before departure:

“The sovereignty of Parliament is a fundamental principle of the UK constitution. Whilst Parliament has remained sovereign throughout our membership of the EU, it has not always felt like that.”

Membership of the European Union has “not always felt like” we had sovereignty.

This suggested Brexit was an exercise in political therapy: so as to make us feel that we had (and have) sovereignty.

But we had sovereignty all along.

We could have left the European Economic Community and then European Union at any point – though before the treaty of Lisbon (which introduced Article 50), it would have had to have been by treaty (as happened when Greenland left) or by denunciation.

And we could have, at any time, repealed the European Communities Act 1972 without asking any one’s permission.

What Farage and others mean by “sovereignty” is isolationism.

Their ideal is for the United Kingdom not to be bound by any unwanted international obligations, or indeed by any international obligations at all.

But treaties generally require those who enter into them to limit or forego certain rights in return for some benefit.

For that is the nature of international agreements.

Yes, we can – ultimately – always walk away.

And we should be careful which obligations we accept when we enter such agreements.

But such obligations are the essence of the dealings of a sovereign state.

And that sovereignty is always there, even when it does not feel like it.

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Legislation as an annual or biennial virility event

8th March 2023

In times past, communities used to come together every year or so to assert and celebrate rebirth and virility.

Nowadays, our politicians do something similar – although instead of costumes and spectacles they pass legislation.

Consider these two lists.

First, here are the Acts of Parliament since 2000 which have migration/immigration/borders/nationality in their short title:

This list, of course, excludes statutory instruments and other legislation that may have amended the law on migration and related aspects.

But it is about an Act every other year.

And here is a second list, of primary legislation since 2000 with terrorism or “investigatory powers” in the title:

Again, an Act of Parliament on average every couple of years or so.

Amusingly, our legislature cannot make its mind up whether the statutes should be title “terrorism” or “anti-“ or “counter-terrorism”.

(Perhaps one reason we have so many is because they keep cancelling each other out.)

Taking the two lists together, this means that the Home Office has had since 2000 about an Act every year on immigration or national security, or both.

An annual (biennial) legislative event which shows the Home Office is doing something.

We are told this year, like before, that the migration-related Bill is needed to solve the perceived borders issue.

We are told that those against this latest Bill are against the national interest:

One suspects similar sentiments could have been expressed (and indeed were) about those who may have had reservations about each of the previous Bills on borders and/or national security since 2000.

And like an addict, the Home Office will say in 2024 and 2025 that just some more Bills will be needed to show how serious we are about borders and/or national security.

Perhaps one day the Home Office will think it has enough legislation in place on borders and/or national security.

But until that happy day, Home Office ministers will pass a new Act every year or so to show that they are virile and that they are doing things.

Then they will hope we will forget the alarmism so that they can do it all over again in the next year or two.

The legislation will accumulate on the statute book, with different variations of the same few words in the titles.

Until perhaps they are all one day consolidated in a Terrorism, Anti-Terrorism, Counter-Terrorism, Borders, Migration, Immigration and Nationality Act.

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The Illegal Migration Bill is about political theatre, not serious law-making

 7th March 2023

Today we were supposed to see the government’s new Illegal Migration Bill.

According to today’s Order Paper, the Bill was to be presented to Parliament:

A minister told peers that the Bill was to be introduced today:

And there was even a Commons statement by the Home Secretary.

But.

There is no Bill – at least by mid-afternoon today.

This is odd.

That there is a delay was indicated by part of the Home Secretary’s statement:

“Mr. Speaker, I won’t address the bill’s full legal complexities today.  Some of the nation’s finest legal minds have been – and continue to be – involved in its development.”

And why would the “nation’s finest legal minds” still be “developing” something which was supposed to be published today?

The ministerial letter above provides a possible explanation:

Section 19 of the Human Rights Act 1998 provides:

Nothing much of legal significance turns on section 19 statements either way – whether a minister views a Bill’s provisions as compatible or otherwise.

The lack of a compatibility statement will not make a statutory provision breach the ECHR, and the presence of a compatibility statement will not save a statutory provision from being found incompatible.

Section 19 is an ornament not an instrument.

Lord Hope in a 2001 House of Lords case said the following about one such statement of compatibility (emphasis added):

“It may be noted in passing that a statement of compatibility was attached to the Bill before second reading that its provisions were compatible with the Human Rights Act 1998. Statements to that effect are now required by section 19 of the Act, which was brought into force on 24 November 1998. But Mr Pannick QC for the Secretary of State did not seek to rely on this statement in the course of his argument. I consider that he was right not to do so. These statements may serve a useful purpose in Parliament. They may also be seen as part of the parliamentary history, indicating that it was not Parliament’s intention to cut across a Convention right […]  No doubt they are based on the best advice that is available. But they are no more than expressions of opinion by the minister.  They are not binding on the court, nor do they have any persuasive authority.“

That was just after the Human Rights Act was passed – but it is pretty much the conventional wisdom of the courts and practitioners on such statements.

Of course, ministers will want to assure waverers in the Commons and the Lords that this is not yet another piece of legislation which will break international legal obligations.

More concerning will be the substance of the Bill, which may face heavy amendment in the Lords and litigation in the Courts.

But we cannot know what the Bill says, as it has not been published.

What we do know, in addition to the Home Secretary’s statement (and ignoring the media briefing) is this from the Order Paper:

And this on the Home Office website:

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The emphasis on media briefing for this Bill indicates that these proposals are more to do with political theatre, not law-making.

For the one thing which would do the most to stem any abuses of our asylum regime would be to have an adequately resourced and competent asylum system.

And until and unless we have an adequately resourced and competent asylum system, then everything else proposed by this government on asylum is hogwash.

The impression this Bill gives is that the government is not engaged in serious policy making and legal implementation, and it wishes to use its remaining months in office to play to various galleries and to evade any blame.

And this can be done by leaks, briefings, announcements and press releases – again, political theatre – with any actual legislation an afterthought.

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STOP PRESS

The Bill has now been published.

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Why the appointment of Sue Gray is both a mistake and not a mistake

6th March 2023

The senior civil servant Sue Gray has been appointed by the leader of the opposition as his chief of staff.

This, as you no doubt are aware, is the stuff of political controversy – not least because of Gray’s famous (infamous?) role in compiling the Partygate internal report.

From a policy perspective, however, is this controversial appointment a mistake?

Tactically and politically the appointment is an error.

It raises questions of propriety and timing for the leader of the opposition, and it opens up the  question of whether her role in the Partygate report was politically motivated.

It also distracts from any focus on the wrongdoing of Boris Johnson over Partygate.

But.

Strategically and governmentally the appointment is sensible.

If the leader of the opposition becomes prime minister then he needs aides who (genuinely) know the Whitehall machine, who are used the glare of the media, and who are unafraid of speaking truth to power, or at least to Prime Ministers.

As such Gray’s appointment can be compared to that of Margaret Thatcher’s aides, the recently deceased Bernard Ingham and Charles Powell, and Tony Blair’s appointment of Jonathan Powell.

Such appointments are a mark of taking government and policy seriously.

The timing of the appointment is dreadful, and it may be politically counterproductive in March 2023, but it may look less problematic if Labour win the next general election.

And in the run up to the next election, it means the party (currently) most likely to win that election will have guidance which enable it to better prepare for the realities of implementing manifesto promises and translating policy into practice.

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Johnson’s choices, Johnson’s choice

3rd March 2023

Nobody knows for certain if the privileges committee of the House of Commons will find if Boris Johnson lied to the house and, if so, whether that constituted a contempt.

(Or whether he is on contempt for not speedily correcting the record, which where I and others think he may be vulnerable.)

Nobody also knows whether Johnson will suffer any sanction if he is found to have been in contempt.

And so because nobody knows, then there is an element of risk in how Johnson approaches the investigation.

He is currently adopting a bullish and legalistic approach, as if by force of nature he can prevail against this nuisance.

Such approaches do work and probably have worked for Johnson in the past.

He may well be cleared, or he will be able to boast to those with short attention spans that he was “cleared”.

But.

He does not know that for certain.

And so his decisions so far in taking such a robust and argumentative approach may not be now help him.

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There often comes a point in litigation when the loudly assertive party realises that things have gone against them.

It usually happens when that party has sight of the evidence.

This is because many cases are decided not on legal points, and still less on advocacy (sorry, barristers), but on the preponderance of evidence.

If the evidence is against you, you may bluster or search for procedural technicalities, or even invoke human rights arguments, but those things will rarely save you.

Of course, a certain type of individual will shrug and put their head down and charge anyway.

And sometimes that actually works.

But it is a high risk strategy.

What therefore often happens is there is a sudden pivot.

We go at a stroke from (affected) outrage and incredulity to (similarly insincere) “lessons learned” and “lines drawn” and “moving on”.

The prima facie evidence against Johnson (a summary of which has been published today, and is worth reading in full) looks strong.

He certainly has a case to answer.

And he also has a decision to make.

Will he charge?

Or will he change tack so as to avoid a more onerous sanction?

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NDAs and the Public Interest – a beginner’s guide for Matt Hancock and others

2nd March 2023

The publication this week by the Daily Telegraph of the WhatsApp messages of Matthew Hancock with several third parties was unusual and striking.

It was so unusual and striking that the first response of many was: surely there must be a law against this sort of thing.

And no doubt Hancock himself thought he was legally protected, having entered into (we are told) a Non Disclosure Agreement (NDA) with Isabel Oakeshott, the ghost writer of his recent book about his experiences as health secretary in dealing with the pandemic.

On available information, it appears the ghost writer has in turn disclosed the messages to the Daily Telegraph, and the newspaper then published a selection of these messages (we are told) without prior notice to Hancock or to any of the third parties with whom Hancock messaged.

The messages are certainly of interest to the public and, given the insights they provide into how government (and the media) dealt with the pandemic – especially in respect of what happened with care homes and testing – the publication of the messages can plausibly be said to be in the public interest.

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This post now sets out the general law of England and Wales in respect of NDAs and the public interest, and it then will apply that general law to what appears to be the facts of this incident.

In doing so, I have not had sight of the actual NDA which was signed between Hancock and his ghost writer – and, as will become apparent, a great deal can turn on the terms of a NDA.

For although NDA sounds as if it should be an acronym for a generic thing, there are many ways of framing a NDA.

NDA is not, in and of itself, a legal term of art, but instead a label of convenience.

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To understand NDAs you must first understand what it means not to have a NDA.

If there is not a NDA between two parties there will still be the law of confidentiality.

(Technically, confidentiality is not law but what is called “equity”, which is a set of doctrines and rules which complement law, but I hope I may be permitted to call it law for the purposes of this post.)

Confidentiality usually works as follows: person (A) imparts information to person (B) and when that information has (i) the quality of confidentiality and (ii) been imparted so that it is plain that it is considered confidential, the courts will protect that confidential information when they can.

If tests (i) and (ii) are met then person (B) will be bound to keep the information confidential.

This means that if person (B) wrongly discloses that information to another, or misuses the information, then (A) can obtain an injunction against (B).

(A) can also, depending on circumstances, obtain another remedy against (B) such as an “account of profits” of the monies made by (B) in wrongly disclosing or misusing that information.

Generally, the law of confidentiality is about the remedy of injunctions.

This is because injunctions are the supposed means that confidential information can remain confidential: the cork is put back into the bottle.

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So given there is already a general law of confidentiality, why do parties have NDAs?

There are many reasons.

First, NDAs can serve to identify and list the information which is confidential, so that there is no need to rely on the general test of whether the information has the quality of confidential information.

Second, the NDA will show beyond serious doubt that the parties were aware that the information was imparted on a confidential basis.

These two reasons supercharge the basic law of confidentiality so that the wronged party can show a court the two tests are met at law.

But there are other reasons why parties may want a NDA.

NDAs can provide the financial terms of the parties: in essence how much is being paid to the parties in respect of the exchange of information.

A strong NDA will also provide the financial consequences of what will happen if a party breaches the NDA, such as an indemnity or damages.

A NDA can also provide for the intellectual property position of the imparted information – for example, whether the receiving party also has a licence to use the information and for what purposes.

But.

Generally NDAs are signed as a ceremonial act of trust between the parties, a rite of passage.

Often people will ask for and sign NDAs without much consideration of their contents, so that they can progress with a commercial or media relationship.

NDAs also often suit both parties as a convenient shield, and a NDA can be used as the complete reason not to disclose something.

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NDAs, however, are not magical devices.

They do not, in and of themselves as signed pieces of paper, stop an unwanted disclosure – especially if trust breaks down.

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If party (B) wants to breach a NDA then there will often be little that (A) can do to stop them.

This is especially the case if (A) is not given notice of the breach.

For, as set out above, the law of confidentiality is generally about the remedy of an injunction.

And as injunctions are discretionary remedies of the court, they will not usually be granted if the court order would be futile or academic.

It would be too late to put the cork back in the bottle.

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So if (A) cannot obtain an injunction to restrain publication or some other wrongful disclosure by B, what is there for (A) to do?

Well.

This will come down to the other terms of the NDA – and often with NDAs there will not be other terms.

Sometimes, especially when it is foreseeable that party (B) will breach the NDA, there can be financial terms that would deter (B) from doing so.

For example, there could be structured payments that would not be payable in the event of any breach.

Or there can be an indemnity against the costs of dealing with the consequences of a breach.

But often the NDA will be silent, for – as set out above – the NDA is usually a convenient shield or a ceremonial ornament.

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And now we come to the public interest.

Even if (A) has been given notice of an imminent breach, if (B) pleads the public interest, then the court may not give (A) an injunction.

All (A) would then have, if they have been careful, would be other terms of the NDA.

The legal position was recently summarised by a judge:

“The modern (i.e. post-[Human Rights Act 1998]) approach as to the public interest defence is set out in the Court of Appeal’s judgment in Associated Newspapers Limited v HRH Prince of Wales […].

“The four main tenets can be summarised as follows:

“(1)  There is an important public interest in the observance of duties of confidence since those who engage employees, or who enter into other relationships that carry with them a duty of confidence, ought to be able to be confident that they can disclose, without risk of wider publication, information that it is legitimate for them to wish to keep confidential (ibid at [67]).

“(2)  The modern approach as to the circumstances in which the public interest in publication can be said to override a duty of confidence is whether a fetter of the right of freedom of expression is, in the particular circumstances, “necessary in a democratic society”.  The test is one of proportionality: the court will need to consider whether, having regard to the nature of the information and all the relevant circumstances, it is legitimate for the owner of the information to seek to keep it confidential or whether it is in the public interest that the information should be made public (ibid at [67]).

“(3)  It is arguable that a duty of confidentiality that has been expressly assumed under contract carries more weight, when balanced against the restriction of the right of freedom of expression, than a duty of confidentiality that is not buttressed by express agreement; but the extent to which a contract adds to the weight of duty of confidence arising out of a confidential relationship will depend upon the facts of the individual case (ibid at [69] citing Campbell v Frisbee [2003] ICR 141).

“(4)  Thus, in essence, the Court must consider whether, having regard to the nature of the information and all the relevant circumstances, it is legitimate for the owner of the information to seek to keep it confidential or whether it is in the public interest that the information should be made public.”

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Applying these four tests in the instant case, Hancock would say that as the messages had been disclosed to the ghost writer under a contract, this “carries more weight, when balanced against the restriction of the right of freedom of expression, than a duty of confidentiality that is not buttressed by express agreement”.

Hancock would also say there was an “important public interest in the observance of duties of confidence since those […] who enter into other relationships that carry with them a duty of confidence, ought to be able to be confident that they can disclose, without risk of wider publication, information that it is legitimate for them to wish to keep confidential”.

But.

The ghost writer would say “having regard to the nature of the information and all the relevant circumstances […] it is in the public interest that the information should be made public”.

Here the ghost writer would also be able to point to the material being supplied for a book on the pandemic, as well as to the contents of the messages.

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The Daily Telegraph did not sign the NDA and so would not be bound by its terms.

Hancock’s remedies, if any, against the Daily Telegraph would be under the general law of confidentiality, or perhaps under the law of misuse of private information, data protection law, or even copyright.

But whichever way he framed the claim, he would face (in some form) a public interest defence.

The position of third parties with whom Hancock messaged, however, may be stronger.

And one expects the Daily Telegraph legal team has been very careful in respect of third party information it is disclosing from the messages.

The Daily Telegraph must have had very bullish and robust legal advice on the public interest.

They also felt confident enough in their public interest defence not to give Hancock notice of publication.

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Hancock is today quoted as saying:

“There is absolutely no public interest case for this huge breach.  All the materials for the book have already been made available to the inquiry, which is the right, and only, place for everything to be considered properly and the right lessons to be learned.  As we have seen, releasing them in this way gives a partial, biased account to suit an anti-lockdown agenda.”

If Hancock sincerely believes that there is absolutely no public interest defence then presumably there is no bar to him seeking some form of legal remedy against either the ghost writer or the newspaper – for example to restrain publication of messages so far unpublished.

He could even seek to obtain an account of profits from the ghost writer or the newspaper if he believes they are acting uncocionably.

So far it appears that he may not take legal action, he also has said today (emphasis added):

“I will respond to the substance in the appropriate place, at the inquiry, so that we can properly learn all the lessons based on a full and objective understanding of what happened in the pandemic, and why.”

If he believes that, one may wonder why he published a book seeking to give his side of what happened before the inquiry.

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NDAs are usually ornaments or shields.

Unless they are tightly drafted and prudently structured, they offer little protection in practice to an imparting party if the other party deliberately breaches the NDA without notice.

As such NDAs are often articles of trust.

And here is the paradox: given NDAs often depend on trust, they usually are not needed, and if there is lack of trust, then the NDA can make little difference.

On the available information, Hancock was naive to believe a NDA would give firm, still less absolute, protection against onward disclosure of the messages.

And on the available information, there does appear to be a public interest in disclosure to the public of the messages – at least to the extent that they show public policy making and implementation in action.

As Hancock himself has published a book which has been described as misleading based on the same material, then he may struggle to get redress in respect disclosures which expose his own misleading account.

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We do not know what were the terms of the NDA – and so we cannot pass comment on whether the NDA was well drafted for its purpose or not.

But we can evaluate the wisdom of Hancock in thinking any NDA, on any terms, would protect him against onward disclosure of the messages by a counter-party willing to breach the NDA on the basis of the public interest.

It was a daft thing for him to do.

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When William Rees-Mogg and James Goldsmith asked the courts to declare that the United Kingdom could not ratify the Maastricht Treaty – this week’s Substack essay

2nd March 2023

Over at Substack, the essay for paying subscribers is on the 1993 case brought by William Rees-Mogg and James Goldsmith against the Maastricht Treaty.

You can read it here.

For the reasons set out in the essay, it is fair to see the case as one of the origins of Brexit.

The essay begins as follows:

The case was described by the party who brought it as “the most important constitutional case for 300 years”.

This was the application for judicial review brought by the life peer William Rees-Mogg in July 1993, where he sought a High Court declaration that the legislation giving effect to the Maastricht Treaty was unlawful. Lord Rees-Mogg wanted the courts to tell parliament that a Bill, which was then about to become an Act of Parliament, was invalid. It was to be a strike at the very principle of parliamentary sovereignty.

His lead barrister for this ambitious claim was a recently appointed QC called David Pannick, and the high costs of the claim was financed by James Goldsmith (a year before he founded the Referendum Party).

The legal claim so concerned the John Major government that, in addition to instructing the then Treasury Devil (the government’s usual barrister for such cases) it also instructed one of the most brilliant barristers of the day (and still, happily, our day), Sydney Kentridge.

The stated grounds for the application also so alarmed the then Speaker of the House of Commons Betty Boothroyd to take it upon herself to warn from the speaker’s chair of the House of Commons “that the Bill of Rights will be required to be fully respected by all those appearing before the Court”.

The timing of the case was significant. When the claim was brought the Bill giving domestic effect to the Maastricht treaty was still before parliament, though it received royal assent before the hearing could take place.

The Maastricht Treaty had been signed in February 1992, but there was a sense that it was not inevitable that it would actually take effect.

The Danes had rejected the treaty by referendum in June 1992, before approving it in a further referendum in May 1993, and the French referendum of September 1992 had approved the treaty with only a narrow 51% majority. Also in September 1992 the United Kingdom’s currency had been ejected from the exchange rate mechanism on “Black Wednesday”. The European Union project was not seen by its opponents as inescapable. Not only was the Maastricht treaty contested, it was seen as capable of defeat.

Domestically the government had had problems getting the Bill through the House of Lords (including defeating Lord Blake’s amendment for a referendum) and had suffered a number of rebellions in the House of Commons.

And when the Bill received royal assent on 20 July 1993 but there was still what then Prime Minister John Major called a “ticking time bomb” of a later vote on the Social Protocol which would mean the treaty could not be regarded as ratified. Major was to win that vote only by making it a vote of confidence.

This was all very exciting at the time, and a great deal of the above – spirited public law claims led by Pannick, judges being brought into political matters, calls for referendums, close commons votes – seems rather familiar at our own time of Brexit. The case is well worth looking back on thirty years later.

And so this is the story of R. v Secretary of State for Foreign and Commonwealth Affairs ex p. Rees-Mogg.

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Those of you kind enough to be paying Substack subscribers can read it here – and if you are not yet a paying Substack subscriber, please consider becoming one.  The subscriptions help support my daily law and policy commentary on this blog.

Those of you who are Patreon supporters can read the essay here.

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Last week’s essay was on how the courts improvised legal solutions in the hard case of George Blake.

The week before the essay was on the lore of Lady Justice, here.

And the week before that it was on the case of Jane Wenham and the last of the English witch trials.

Other essays include (in chronological order of the subject):

Dr Bonham’s case (1610) – and the question of whether parliament is really sovereign

Taff Vale (1901) – perhaps the most important case in trade union history

Wednesbury (1948) – the origin of the modern principle of legal unreasonableness

Malone (1979) – perhaps the most significant constitutional case of the last 50 years

These essays are on topics to do with legal history and legal lore – and they are in addition to my topical law and policy commentary here every weekday.

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Comments Policy

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Comments are welcome, but they are pre-moderated and comments will not be published if irksome, or if they risk derailing the discussion.

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Brexit Fatigue – and the possible end of “Brexitism”

1st March 2023

Over at the Guardian, the perceptive commentator Rafael Behr contends that although Brexit will be never-ending, this week may have seen the end of “Brexitism”:

“Brexit, in its most ideological conception, is a zero-sum game in which the European Commission is only happy if Britain has been diddled out of sovereignty.

“That attitude still prevails among many Tory MPs but it competes with fatigue and an instinct for electoral self-preservation.

“There is no appetite among voters for the re-enactment of Brexit wars, especially when the terrain of battle is so small – a scrap of European court jurisdiction under a mound of procedural safeguards in Northern Ireland. […]

“Brexit as management of a relationship is, by definition, never done. But Brexitism as the doctrine of national renaissance through conflict with Brussels is dying.”

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If so, good.

Good, good, brilliant, wonderful, superlatively superlative.

What this blog has long wanted is for our post-Brexit relationship with the European Union to become a question of practical politics.

I had hoped that this would be when the mandate of the referendum was discharged on our actual departure.  That was far too optimistic.

And as recently as this January I have written (perhaps with more hope than experience) that there was evidence that we were moving into post-Brexit politics:Two weeks ago I did a post, with my tongue-slightly-in-cheek, about what would happen if the Northern Irish protocol issue was resolved (at least in the short- to medium-term):

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All this is not only good, it means we can maybe start some interesting new conversations about how we should shape our relationship with the European Union.

All this said, it is important that we do not get carried away, with this euphoria.

Yes, it is cathartic – especially to see certain hardliners silenced.

But certain fundamental problems are still there, and we are just one flashpoint away from another political row.

In the meantime, let us take this, as a good moment.

There are now potentially fascinating and wide-ranging discussions ahead as we work out what our long-term relationship is with the European Union.

Brace, brace – in a nicer way.

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Is the “Stormont Brake” an instrument or an ornament? And does it matter?

28th February 2023

Here I will pose the question whether the proposed “Stormont Brake” is an instrument or an ornament.

In other words: is the brake something which can actually be used – and be useful – in practice?

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Here are some preliminary views, based on my first reading of the extensive documentation published yesterday for the “Windsor Framework”.

There is no doubt that, in theory, the brake is a very powerful instrument.

If the brake is applied then specific new European Union legislation will not apply in Northern Ireland, notwithstanding the Northern Irish Protocol agreed in 2020.

But.

Even in describing this (potential) potency you will see limitations.

The brake will only apply to new European Union legislation, not existing legislation.

There will be only a short period to challenge the legislation.

And the brake does nothing about the jurisdiction of the European Union courts in interpreting the law of the European Union when it applies in Northern Ireland.

So even taking the brake at its most powerful, its effect will be limited.

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And there is another but.

The small-print of the documents published yesterday show that the conditions and process for the brake are such that, in practice, it will be difficult-to-impossible to apply.

The documents expressly describe it as an “emergency” brake.

For it to be used, the Northern Irish executive needs to be be in place and functioning.

There would then need to be thirty members of the Northern Irish legislative assembly, from more than one party, who are concerned about the proposed measure.

But mere expressions of concern will not be enough.

The MLAs will need to show:

(A) “most exceptional circumstances and as a last resort, having used every other available mechanism” and
(B) a significant impact specific to “the everyday life of communities in Northern Ireland in a way that is liable to persist”.
And if you read that last requirement carefully you will see that it is comprised of three component conditions:
(i) scope – “everyday life of communities” (and note the deft plural);
(ii) significance of impact; and
(iii) duration – “in a way that is liable to persist”.
The MLAs also need to show (C) that they have consulted businesses and civic society, as well as (D) they have participated in any prior consultation exercises for the measure.
Once this step has been accomplished, the government of United Kingdom in turn has to show the European Union (E) why it considers the EU legislation is different from what went before, and – as above (B) again –  that the United Kingdom itself considers that it “would have a significant impact specific to everyday life of communities in Northern Ireland in a way that is liable to persist”.
All of these conditions are defined, and presumably if the United Kingdom cannot show the conditions have been met then the Stormont Brake cannot be applied.
(I am still trying to work out how any dispute in any of this will be resolved.)
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There is a see-saw problem as well.
If a thing is too difficult to be used then it will tend not to be used.
One reason the safeguard provisions under the existing protocol have not been fully used is that the sheer number of conditions and requirements that need to be ticked-off before they can be activated.
As such the provision has become an ornament rather than an instrument.
The same problem may be there with the Stormont Brake.
It may become an ornament, for it will be so difficult to use in practice.
Perhaps that is the intention: it will just be there for reassurance that such a button can be pressed.
But the same was said of the then-new Article 50, after the Lisbon treaty.
It is never safe to assume that an ornamental provision will never be used, and so it always should be capable of working for the intended purpose.
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I am not a supporter of the ERG or the DUP – I support a united Ireland and for the rest of the United Kingdom being part of the single market.
As such, I think the Windsor Framework is a welcome step.
But if I were a supporter of the ERG or the DUP I would not be satisfied by the Stormont Brake – at least with all its current conditions.
Else there will just be another bout of political tension as and when, like the Article 16 safeguards, the Stormont Brake is not seen as a ready remedy.
And we will have to negotiate a new framework and find a new symbolic place to name it after.
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Perhaps the brake does not matter.
Perhaps it is all politics.
Perhaps those involved just want cover for bringing this row to an end, and the Windsor Framework contains a raft of other practical measures to address practical problems.
And as someone observed on Twitter, it is somewhat fitting that a symbolic problem has a symbolic solution.
https://twitter.com/mathof1/status/1630510607647514624
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But if it ever does matter, then the brake must be capable of working.
It cannot just be an ornament.
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Comments are welcome, but they are pre-moderated and comments will not be published if irksome, or if they risk derailing the discussion.

The Windsor Not or a Windsor Knot?

27th February 2023

While we wait for the legal text of the new agreement between the United Kingdom and the European Union to be published, this is just a quick post about the optics.

It has been a long-standing joke that to get some European thing past government supporters and the popular media, all that would need to be done is to call it something like the “Winston Churchill Protocol”.

Calling this agreement the “Windsor Framework” – and getting the royal imprint – is a choreographically deft move.

But form, of course, is not substance, and the text – when it is published – will require hard scrutiny.

This is especially the case of the supposed “brake” which may or may not be really that different from the current dispute resolution procedures.

Here it is interesting that they have chosen the word “brake” – which is not a legal term of art – instead of, say, veto.

(Perhaps they thought they could make it sound like a “break clause” – which is a thing for property lawyers.)

Anyway, let us see.

But, for now, the politics is encouraging and refreshingly grown-up.

Even if this turns out to be more of a Windsor Not than a Windsor Knot.

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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 and comments will not be published if irksome, or if they risk derailing the discussion.