Author: David Allen Green

Will the United Kingdom’s constitutional excitements ever stop?

25th November 2022

The nights draw in, as another year comes to an end.

2022 will soon be over.

Yet, it does not look like the constitutional excitements in the United Kingdom will lessen.

The main opposition Labour party has opted to raise the issue of House of Lords reform or replacement; the third-largest party in the House of Commons – the Scottish National Party – are committed to somehow gaining independence for Scotland, despite (or because of) the Supreme Court judgment this week ruling out a unilateral referendum; and in Northern Ireland the shared power arrangements have long broken down, and there is a real prospect of a border poll.

And that is before we even come to the government of United Kingdom, with its various avowed intentions: to break international law by statute with a Northern Irish Protocol Act; to restrict the right to protest; to repeal the Human Rights Act and replace it with laws to make it more difficult to rely on human rights law; and to suddenly get rid of remaining European Union law without regard to what it does and what impact repeal would have.

This is not a happy polity.

Some of these issues – Northern Ireland and Scotland – are about serious fault-lines in our constitution, and these will need to be addressed, if not resolved.

Others are the sort of self-inflicted, unforced errors that are a feature of our current somewhat frenzied political culture.

But none of these are directly about the social and economic predicament of many of the people in the United Kingdom, or directly about health or education.

Or directly about the war in Europe or the energy crisis.

(Please note the “directly” before you type out comments saying “Actually there is a relationship…”.)

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As this blog has averred many times, constitutional law should be dull.

This is not because constitutional law is unimportant – it is fundamentally important.

It is because constitutional law sets the parameters of everyday political (and legal) action.

If those parameters themselves become the constant issue then there will be inefficiencies in that everyday political (and legal) action.

Few if any people want to watch a sporting contest where there are continual arguments with the referees and umpires, and eternal confrontations with the governing bodies.

Similarly, constitutional matters – that is, how public bodies get along and resolve tensions, or the boundaries between officials and those who are governed – are not themselves interesting to most normal people.

The opportunity cost of this post-Brexit preoccupation with constitutional matters, and this government’s infantile obsession with stoking culture war issues, is that insufficient thought and effort is going into many other areas of public policy.

These are the sorts of policy topics – the economy, welfare, defence – that should be the priority for public debate and political scrutiny.

Yes, from time to time, serious constitutional matters need to be attended to – and the futures of Scotland and Northern Ireland, and the relationship with the European Union – require careful consideration and realistic arrangements.

But otherwise our body politic seems rather worn out, and it needs a rest.

Our body politic cannot always be in a brace, brace position.

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An Article 50 for leaving the United Kingdom?

24th November 2022

A commenter over at Mastodon came up with this thought-provoking suggestion:

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You may recall our old friend Article 50:

This was the provision added to the European Union treaties in 2009 that enabled a member state to unilaterally and lawfully leave the European Union.

Before Article 50 was added, any member state that would have wanted to have left the European Union would either have had to have broken the treaties or negotiated an exit treaty.

(No member state did leave before 2009, though the departure of Greenland – part of the Kingdom of Denmark – from the European Economic Community in 1985 required a treaty.)

The new Article 50 ensured that any departure could be done lawfully and unilaterally.

(It was assumed by some that it would not actually be used.)

If a member state had wanted to leave then no other member state could then stop it.

The other member states, and the various European Union institutions, had no veto.

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What provisions do we have in the United Kingdom that approximate to Article 50?

For Northern Ireland we do have section 1 of the Northern Ireland Act 1998:

The decision to have such a poll, however, is a matter for the United Kingdom government:

So the people of Northern Ireland can elect for Northern Ireland to leave the Union, but only if the United Kingdom first consent to such a poll.

This is at least one step away from Northern Ireland having its own Article 50.

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For Scotland there is the possibility of a “Section 30 order” which would allow there to be an independence referendum, but – again – that order has to be given by the United Kingdom government.

But this is at least two steps away from Scotland having its own Article 50.

(And I am not any expert on Welsh devolution but a glance at the relevant legislation indicates that Wales may be three steps away, though I would welcome any comments on this.)

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If any of the constituent parts of the United Kingdom wished to (peacefully) leave the union there would, of course, have to be treaties and extensive legislation.

We know this, because it has already happened when Ireland left the United Kingdom.

Presumably a similar treaty and extensive legislation would be required if and when Scotland (or Wales) leaves the union.

There is nothing in place like Article 50 for Scotland or Wales or even Northern Ireland (or I suppose England) to activate unilaterally.

Should there be?

Discuss below.

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Do referendums now have a special constitutional status? And has the Supreme Court made it far harder for the UK government to ignore the results of any further “advisory” referendum? Some fascinating passages in today’s Supreme Court judgment

23rd November 2022

This morning the United Kingdom Supreme Court gave judgment in the reference made by the Scottish government about whether the Scottish Parliament could legislate for a non-binding referendum on Scottish independence.

This post is not about the specific issue of the Scottish independence referendum, which I have commented on at the Financial Times.

This post is instead about some fascinating passages in the judgment about referendums.

By way of background, the usual position is that there is a binary: on one hand there is parliament, and on the other hand there are extra-parliamentary exercises, such as referendums and consultation exercises.

These extra-parliamentary things are usually seen as advisory.

Sometimes there is an exception – the electoral reform referendum would have had a direct legal effect had a majority supported change.

But generally, referendums and such like are glorified opinion polls.

Any mandate is political, not legal.

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In today’s judgment, a unanimous Supreme Court seems to have put forward a different view (which I have broken up into sentences for flow and added bold for emphasis):

“78. The effect of the Bill, however, will not be confined to the holding of a referendum. Even if it is not self-executing, and can in that sense be described as advisory, a lawfully held referendum is not merely an exercise in public consultation or a survey of public opinion.

“It is a democratic process held in accordance with the law which results in an expression of the view of the electorate on a specific issue of public policy on a particular occasion. Its importance is reflected, in the first place, in its official and formal character.

“Statutory authority is needed (and would be provided by the Bill) to set the date and the question, to define the franchise, to establish the campaign period and the spending rules, to lay down the voting rules, to direct the performance of the counting officers and registration officers whose function it is to conduct the referendum, and to authorise the expenditure of the public resources required. Statutory authority, and adherence to the statutory procedure, confer legitimacy upon the result.

“79. That legislative framework is put in place because the result of a lawfully held referendum is a matter of importance in the political realm, even if it has no immediate legal consequences.

“That has been demonstrated in practice by the history of referendums in this country, and has also been recognised by this court.

“For example, in relation to the 2014 referendum on Scottish independence, Lord Hodge stated in Moohan v Lord Advocate […] with the agreement of the majority of the court, that “the referendum is a very important political decision for both Scotland and the rest of the United Kingdom”.

“In relation to the 2016 referendum on leaving the European Union, the majority of the court stated in R (Miller) v Secretary of State for Exiting the European Union […] : “[T]he referendum of 2016 did not change the law in a way which would allow ministers to withdraw the United Kingdom from the European Union without legislation. But that in no way means that it is devoid of effect. It means that, unless and until acted on by Parliament, its force is political rather than legal. It has already shown itself to be of great political significance.”

[…]

“81. A lawful referendum on the question envisaged by the Bill would undoubtedly be an important political event, even if its outcome had no immediate legal consequences, and even if the United Kingdom Government had not given any political commitment to act upon it.

“A clear outcome, whichever way the question was answered, would possess the authority, in a constitution and political culture founded upon democracy, of a democratic expression of the view of the Scottish electorate.

“The clear expression of its wish either to remain within the United Kingdom or to pursue secession would strengthen or weaken the democratic legitimacy of the Union, depending on which view prevailed, and support or undermine the democratic credentials of the independence movement.

“It would consequently have important political consequences relating to the Union and the United Kingdom Parliament.”

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With regard to these “important political consequences”, the Supreme Court held that such a non-binding referendum would “in all the circumstances […] relate to” the reserved matters of the Union and the sovereignty of parliament, even if the referendum was not legally binding.

In particular, the Supreme Court emphasised that “statutory authority is needed (and would be provided by the Bill) to set the date and the question, to define the franchise, to establish the campaign period and the spending rules, to lay down the voting rules, to direct the performance of the counting officers and registration officers whose function it is to conduct the referendum, and to authorise the expenditure of the public resources required. Statutory authority, and adherence to the statutory procedure, confer legitimacy upon the result.”

A dedicated referendum, under a dedicated statute, is not to be taken lightly.

The key point in these passages is that “a lawfully held referendum is not merely an exercise in public consultation or a survey of public opinion”.

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The import of this judgment would seem to be that dedicated referendums set up by statute now occupy an intermediate position in the constitution of the United Kingdom.

They do not bind parliament (or presumably the courts), but they are not mere opinion polls either.

Such referendums and their results are, as a judge may say, “seen”.

The results of these referendums have a force which, even if not legally binding, is legally recognised and which may, in certain legal cases, make a legal difference.

Perhaps this may have implications in certain legal cases where there are “legitimate expectations” that a public body will act or not act in a certain way.

Perhaps it may have implications for what will follow a border poll in Northern Ireland, or in a further Scottish independence referendum.

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To an extent this is a judicial statement of the obvious political reality of referendums – but it is significant for it not only to be expressly acknowledged in a judgment but also (via “all the circumstances”) to have made a difference in this case.

Special referendums now appear to have a special constitutional status.

They matter and their results will be judicially recognised – even, as the Supreme Court expressly said here, if the United Kingdom government has not given any political commitment to act upon them.

If so, let us see what happens with the next one – that is, if there is a next one.

The consequential litigation may be fun.

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The one big problem with House of Lords reform

22nd November 2022

As today is a palindrome day – 22/11/22 – here is another palindrome: 111.

One hundred and eleven.

That is, the number of years since this statute was passed:

And if you read the preamble above, you will see that Act was only intended to be temporary, until there was a second chamber constituted on a “popular” basis.

But one hundred and eleven years later, the House of Lords is still there.

For reform is easy to announce, but hard to accomplish.

And in the House of Lords there are still ninety-one hereditary peers – and even twenty-six bishops from the Church of England (which, remember, is the established church in only one of the four constituent nations of the United Kingdom).

There are also several hundred life peers, each of whom is the beneficiary of some sort of patronage, or closed selection process, and none of whom are elected or in any meaningful way politically accountable.

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Of course, the House of Lords should be reformed or replaced.

Of course.

But how?

And here is a big problem about the House of Lords in our constitutional arrangements.

We need to first understand what a second chamber is for.

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Any reform of, or replacement for, the House of Lords has to be carried by the government of the day with the support of the House of Commons.

And neither the government of the day nor the House of Commons will usually want to strengthen the power of a second chamber.

This means that any reform or replacement is likely to strengthen both the government or the House of Commons, or both.

You may be think that would be a good thing, and perhaps it is, but as it stands the House of Lords provides a check and and a balance to any government that commands the House of Commons.

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The House of Lords cannot veto any legislation.

And the House of Lords will not (by convention) delay any legislation for which there is a mandate at a general election.

But for legislation which has been forced through the House of Commons with little or no scrutiny, the House of Lords currently provides an essential function, despite its lack of democratic legitimacy.

How can this function be maintained – even enhanced – with reform or replacement?

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This problem is why any fundamental reform of, or replacement for, the House of Lords really needs to be complemented by fundamental reform of the House of Commons.

For, as it stands, the House of Lords currently saves the House of Commons – and government ministers – from themselves.

Repeatedly, routinely, almost daily.

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Replacing life peers with elected politicians seeking re-election will removed the independence and expertise that provides the merit of the House of Lords.

Using some other basis of election – by regions or otherwise – may create a chamber with an equal claim to democratic legitimacy, thereby creating logjams, rather than revision.

As with the Crown, one useful feature of the House of Lords is not so much the power it has, but the power it prevents others in the polity from having.

So any serious discussion about reform or replacement should be preceded by anxious consideration of function and purpose: what is the House of Lords or new other chamber to do?

What is it actually for?

And then we should work backwards from that so as to see how it should be comprised.

By putting the question of composition before the question of function and purpose, one is perhaps putting the state coach before the horses.

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It is to be welcomed that the Leader of the Opposition, who has a real chance of being Prime Minister after the next general election, is openly discussing doing something with the House of Lords.

The first term of a left-of-centre government is usually the only time we will ever get a programme of constitutional reform – for example in 1945-50 or 1997-2001.

There are certainly a number of smaller reforms which could be made, including excluding the bishops and remaining hereditary peers, and reducing the scope of patronage by existing and exiting prime ministers.

All easy, quick wins.

But anything more significant requires there to be a balancing exercise, between the new chamber and the House of Commons and the executive.

And that balancing exercise should not be rushed.

Though, of course, we should not have to wait another one hundred and eleven years.

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A “Swiss-type” post-Brexit arrangement with the European Union for the United Kingdom?

21st November 2022

We had another Sunday special this weekend:

The newspaper considered the story so important that it was splashed on their front page:

You may have prejudices – indeed Very Strong Opinions – about political journalists and Sunday newspapers, but the starting assumption here must be that the reporters and the editor believed this story had sufficient substance so as to warrant such prominence.

The story would not have been invented.

If you look at the report, the basis for the story is as follows:

And:

Reading this closely we can note that (a) this is set for the “next decade” rather than an immediate policy and (b) the source(s) quoted is(/are) not said to be ministerial level.

Although “ministers” are said to be “confident” about the “thaw”, the “senior government sources” in favour of this Swiss-type arrangement would appear to not to be ministers.

Had it been ministers, the newspaper would presumably have said so.

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Many readers of this blog will also have Very Strong Opinions about a Swiss-type arrangement.

I have two initial responses.

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The first is that this was another example of British exceptionalism and unilateralism, with the assumption that just because the United Kingdom wants something, it will get it.

Perhaps we can click our fingers and speak loudly and slowly in English as we demand this arrangement.

There seems no realisation that any agreement requires all parties to agree, and there is no indication that the European Union would want a Swiss-type relationship with the United Kingdom.

The European Union does not even want a Swiss-type relationship with the Swiss.

A Swiss-type relationship requires a number of discrete agreements to be negotiated and implemented in respect of sectors and subjects.

The European Union would be unlikely to have the patience or the inclination to deal with the United Kingdom, with the latter’s still-raw post Brexit politics and continuing governing party psychodrama, in such a fiddly manner.

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But.

My second response was a mild cheer.

Regardless of the impracticality of the suggestion, it at least showed a glimmer of realism in Whitehall that the United Kingdom does need to re-think its relationship with the European Union internal market and for that relationship to be placed on a better footing.

And if we read carefully, this was not a demand for action tomorrow, but a proposal for the direction of travel over the next ten years.

The source is correct that “it is overwhelmingly in the businesses interests on both sides”.

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But, but.

Today’s political news has been about the government denying this report.

I suspect that this denial is true too, on its own terms.

This denial is not incompatible with the actual words of the source quoted above, given Sunak and his government are unlikely to still be in power in three years’ time, let alone in ten years.

The commercial and economic pressures for a closer and more sustainable relationship will continue.

The politics, of course, are toxic – but there are at least two general elections in the next ten years.

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The preference of this blog is, as many of you will know, for a close association between the United Kingdom and European Union, with shared institutions and agreed processes, which would allow us to participate in the internal market.

(“But that will mean we are ‘rule-takers!’ “ will comment Pavlov’s commenters, not caring that we are now very much rule-takers in our current predicament.)

And such an association is better done as a single agreement rather than many Swiss-type bilateral agreements.

The politics in the United Kingdom will need to settle down before this can happen.

But the commercial and economic case will continue to be there, getting stronger and more compelling with each economic quarter.

Piloting the United Kingdom to such a relationship, and convincing the European Union that it is sustainable to agree it with us, is the great challenge for United Kingdom statecraft over the next decade.

That, and the great challenge of even keeping the United Kingdom together in one union.

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Networks and hierarchies, continued

18th November 2022

One day at university, in about 1991, a religious friend said to me “you do realise we are still in the early history of the church?”

I am a non-militant atheist, but for some reason that statement has always stuck with me, as a perfect expression that things may seem very different from a longer perspective.

For us, things like the press and political parties were legacies of the nineteenth century.

In the United Kingdom, Fleet Street and party-based democracy came about at the same time, as often top-down means of communicating with and organising masses of people.

But they were only ever means to an end, and the notions of old print media and old-style political parties may not last that much longer than black-and-white films.

In the United States and France, Presidents have now been elected outside the regular party systems (though Trump was nominally a Republican); in the United Kingdom, the free-standing popular mandate of Brexit is destroying the governing party.

The conventional ways of organising people and information in a democracy may not last much longer.

What purpose is a political party, other than as a badge of convenience, when candidates can create and mobilise their own networks?

What purpose is a news outlet, other than as a hallowed name, when people can readily obtain the news and comment from other sources?

The laws of the land, which matched and regulated those old methods of doing thing will need to change fundamentally.

There is no point seeking to regulate media or political activity on the basis of what media and politics were like before the world wide web.

De-centralised networks undermine command-and-control certainties.

We are still in the early history of communication networks – and of their potentially subversive impact on established hierarchies.

And a lot of what we see – positive and negative – is about this most fundamental of shifts.

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Have a good weekend – and thank you for following this blog.

 

“Is it time to retire the .gb top level domain?”

17th November 2022

Here is (what may be) an amusing question – what should be done, if anything, with the .gb domain?

According to the United Kingdom government, there is no need for the .gb domain, given the pervasiveness of the .uk domain.

And so it seems it can be just got rid of.

But.

Getting rid of .gb may presume or preempt the outcome of possible constitutional changes in the next few years.

In the event there is Irish unification – which is possible in the next few years – then we would no longer be the United Kingdom of Great Britain and Northern Ireland.

And so we may then need .gb.

Though we could perhaps then be the United Kingdom of Great Britain, full stop.

And so still be .uk.

At least in our own minds.

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But if there is Scottish independence, then presumably we will no longer even be Great Britain – and thereby not .gb.

Maybe, without Scotland or Northern Ireland, England and Wales will try to persist in calling themselves either the United Kingdom or Great Britain.

You know, just like those pop bands from the 1970s and 1980s that tour the nostalgia circuit but with only one or two of their original members.

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Perhaps, if Scotland and Northern Ireland do leave the union, England and Wales could adopt the domain .ew ?

 

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Or perhaps not.

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Given it seems that it would not cost anything to get rid of it, and that it appears nobody else could take it, there may be no practical risk in letting .gb go.

But this will be one of many questions about our self-identity if and when Northern Ireland and Scotland (and less probably Wales) leave the union.

And just as the history of these islands to 1922 can be told as a move from separate nations to one union with ever grander names, the history of these islands from now may be told as a sequences of less expansive domains for the London-based government:

.uk > .gb > .ew > .eng > .lon ?

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Gordon Gekko, “Bloatware”, and Retained EU law

16th November 2022

There is a scene in the film Wall Street which almost gets you nodding-along with, if not cheering on, Gordon Gekko.

The scene is very carefully done.

It is a company’s annual stockholders’ meeting, and Gekko is about to speak from the floor.

You will know what he says.

But what you see is a stage full of non-plussed people in suits:

“Teldar Paper has thirty-three different vice presidents each earning over 200 thousand dollars a year. Now, I have spent the last two months analysing what all these guys do, and I still can’t figure it out.

“One thing I do know is that our paper company lost 110 million dollars last year, and I’ll bet that half of that was spent in all the paperwork going back and forth between all these vice presidents.”

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The point is – or seems – inarguable.

And having got his audience – and us – onside Gekko then subverts us with his “greed is good” exhortation.

(Though even then he has to slip in “for lack of any better word” to make the sentiment expressed palatable.)

And if you find yourself thinking “but actually…”, just think of those thirty-three vice presidents all on that stage.

You cannot help but think he may have a point – doesn’t he?

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Of course: that scene is a combination of clever writing and clever visual rhetoric.

And it is easy to depict things as, in effect, bloated – and to get claps and cheers.

But sometimes what appears bloated has a less obvious purpose.

Take, for example, the new owner of Twitter.

This is a tweet from him:

And this is what then happened:

Whoopsie.

Many who logged out of Twitter could not log back in, and so if you wanted to retain access you could not log out.

Or as Rorschach once put it:

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The word “bloat” in this context is pejorative – a term used instead of thinking.

Just seeing a lot of something you don’t understand and do not like, and characterising (indeed, caricaturing) that something as “bloatware” is not enough.

There may be all sorts of hidden and semi-hidden things which are important, if not critical.

That is why a slow, methodical case-by-case approach is needed.

Else you can inadvertently turn-off something that matters, like Musk’s new Twitter did with phone-based authentication.

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And now we come to our old friend, the Retained EU Law (Revocation and Reform) Bill.

The premise of this Bill is that the mass of European Union law that still has effect in the United Kingdom is bloatware.

One can imagine a certain kind of government minister gleefully tweeting:

“Part of today will be turning off the EU retained law bloatware. Less than 20% is actually needed for the United Kingdom to work!”

Or another minister posing in front of thirty-three shelves of regulations, instead of thirty-three corporate vice presidents.

Some would be tempted to nod – perhaps even you.

But.

As this blog has averred before, a lot of retained European Union law is important and beneficial, and we negotiated and implemented it ourselves.

A great deal serves a function – even if it will take time and effort to ascertain what that function is.

Perhaps some of it is statutory bloatware and can be safely discarded.

Yet the moral of Musk and authentication is that gusto is not enough.

Caution – for lack of a better word – is good.

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Getting any quick international trade deal is easy, if you give in to the other side

15th November 2022

There is one way to get a “quick win” international trade deal.

That way is to just give in to what the other side want, but without gaining anything of equal value in return.

It really is quite easy.

All you have to do is turn up to the negotiation, ask what the other side’s negotiators want, give it to them, and – Hey Peston! – the United Kingdom has a trade agreement.

It is as easy as falling off a eucalyptus tree.

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This week in the House of Commons there was a debate on the Australian trade deal.

In that debate the former minister George Eustice said (and this should be read carefully):

“…the Australia trade deal is not actually a very good deal for the UK, which was not for lack of trying on my part.

“Indeed, as my right hon. Friend pointed out, there were things that we achieved, such as a special agricultural safeguard for years 10 to 15, staged liberalisation across the first decade and the protection of British sovereignty in sanitary and phytosanitary issues.

“It is no surprise that many of these areas were negotiated either exclusively or predominantly by the Department for Environment, Food and Rural Affairs on behalf of the UK team, but it has to be said that, overall, the truth of the matter is that the UK gave away far too much for far too little in return.”

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It gets worse:

“…we should not set arbitrary timescales for concluding negotiations.

“The UK went into this negotiation holding the strongest hand—holding all the best cards—but at some point in early summer 2021 the then Trade Secretary my right hon. Friend the Member for South West Norfolk (Elizabeth Truss) took a decision to set an arbitrary target to conclude heads of terms by the time of the G7 summit, and from that moment the UK was repeatedly on the back foot.

“In fact, at one point the then Trade Secretary asked her Australian opposite number what he would need in order to be able to conclude an agreement by the time of the G7.

“Of course, the Australian negotiator kindly set out the Australian terms, which eventually shaped the deal.”

Ooof.

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As regular readers of this blog will note, this idiotic approach to negotiations was pretty much also that adopted by the government of the United Kingdom with the withdrawal and relationship agreements with the European Union.

Instead of taking negotiations seriously, there were artificial deadlines imposed for domestic and media political consumption, regardless of the quality of the agreement.

In essence: the government of the United Kingdom did not and does not take international agreements seriously.

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Part of this lack of seriousness is down to faux-nostalgia.

The notion that because nearly two hundred years ago the United Kingdom could go around the world agreeing trade deals on its own terms.

The idea that, like some latter-day Richard Cobdens, we can pop across the channel and agree a free trade deal, and still be back for tea.

Indeed, the very phrase “international trade deals” is invoked and bandied about by supporters with Brexit with misty-eyed sentimentality.

Being able to enter into such agreements was, it was claimed, one of the advantages of Brexit.

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But.

International trade agreements are not creatures of sentiment.

International trade negotiations are perhaps the most hard-headed, unsentimental things one can imagine in the commercial world.

Indeed, international trade law is commercial law for grown-ups.

Any real benefits gained from such a deal are hard-negotiated and will come at a cost elsewhere.

And a benefit, in any case, may only have an overall marginal economic effect.

For forty-five years, the United Kingdom benefitted from the experience and expertise of the European Commission in negotiating trade deals, with the commission being able to deploy the clout of the single market and twenty-eight member states.

In this way, the commission were able to negotiate deals with mattered and were worth having.

That has now been thrown away, with the United Kingdom leaving the European Union’s common commercial policy and internal market.

What we have now have instead are bravado and bluster, and Elizabeth Truss asking what the other side want so that we simply can give it to them.

And we also have the moral hazard of Boris Johnson and David Frost agreeing to the Northern Irish Protocol and then saying we will renege on it.

We could not be in a less impressive place on the world stage.

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Yes, perhaps, Eustice should have resigned rather than go-along with what he knew to be a bad trade agreement with Australia.

Perhaps.

But it is a Good Thing that he has set out the real position now on the floor of the House of Commons.

The United Kingdom, in a post-Brexit world, is going to learn slowly and painfully that the superficial approach of Johnson and Truss to international agreements is disadvantageous.

Well, at least the limitations of this approach are becoming apparent.

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What does it mean to “take (back) control” of a border?

14th November 2022

Brexit, we are told, was about “taking back control” – of our borders, our money, and our laws.

Yet, if you read the news, it would seem the United Kingdom is less in control of its borders than it was before we departed the European Union.

It would seem that simply declaring that we were “taking back control” was not enough for us to, well, take control.

A less-than-a-moment’s thought should explain why.

It is difficult, if not almost impossible, to have absolute control of a border from one side alone, if a significant amount of people want to cross that border.

In extreme situations, of course, resorting to coercion and lethal force can give the impression of control, at least in the immediate term.

But for there to be effective and sustainable control of a border usually requires those on both sides to cooperate.

As such, the simplistic unilateralism of “taking back control” will not work in practice.

And it is thereby not surprising that the current home secretary has had to agree with France a form of cooperation about the channel crossings.

Though, as Zoe Gardner points out on Twitter, this is not the first time such a thing has been announced:

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Another misconception is that deterring those crossing the channel will work.

That one can remove the “demand”.

That by threatening people with flights to Rwanda or keeping people in horrible conditions the United Kingdom will somehow reduce the number of those seeking asylum here.

The demand seems, to further use economics jargon, “inelastic”.

All that appears to be happening is that, by using various hostile, inhumane and illiberal measures, is that the same number of people are still coming – but we are treating them less well.

The “push factor” does not seem to care about our unpleasant ways.

And there is little that the United Kingdom can do to directly address the “push factor”.

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So what we have are high significant numbers of asylum seekers.

[Word ‘high’ replaced, as some commenters complained it was misleading.]

What should be done?

Well, as Gardner further says, the dealing with the actual claims themselves should be the priority:

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What we can take control of is not our border – but our internal processes, and how well those processes are resourced.

That is what is within our control.

Anything else either requires sincere international cooperation or is outside of our or any other receiving country’s direct control.

And that is control we cannot take – either “back” or otherwise.

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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.

The comments policy is here.