Category: Brexit

The Clown and the Constitution

21st March 2021

Sometimes the usual superlatives do not seem enough – ‘brilliant’, ‘excellent’, ‘outstanding’ do not give justice to a thing.

So all I can aver is that the article ‘The clown king: how Boris Johnson made it by playing the fool’ by Edward Docx is perhaps best piece of contemporary political observation and analysis I have come across for a long time.

If you have not read it, go and read it now – else the rest of this post will make little sense.

And if you have read it, go and read it again.

This is because there is no way that a summary of that article by me will be adequate.

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Everything Docx says that touches on certain law and policy issues over the last few years is true.

Brexit is indeed ‘an act of symbolism at the expense of everything else.’

The lack of seriousness about law as an illustration of the the lack of seriousness generally:  ‘the teetering unicycle of Johnsonian buffoonery – A-levels, school meals, foreign health workers and more. A country of tumbling catastrophes. Trampolining absurdities. Go to work. Don’t go to work. A country proroguing parliament illegally here, trying to break international law there.’

The dislocation between the heady claims of political language and the mundane realities of political substance: ‘we became a country in which there was only the mock heroic – a “world beating” country that would “strain every sinew” and give “cast-iron guarantees” while bungling its plans and breaking its promises. A country “ready to take off its Clark Kent spectacles” and act “as the supercharged champion” of X, Y, Z. A country on stilts – pretending that we had a test and trace system that was head and shoulders above the rest of the world.’

The nature of the campaign for Brexit and the insincerity of Boris Johnson’s role: ‘the likes of Iain Duncan Smith, David Davis, Steve Baker, Nigel Farage, Mark Francois, John Redwood, Gisela Stuart, Kate Hoey et al – were never more than a dim congregation of rude mechanicals. And what they required to win was someone who instinctively understood how to conduct a form of protracted public masque.’ 

And so on.

Docx’s depiction of the character and approach of the current prime minister is unmatched.

Falstaff, the Fool, the Clown, has indeed taken over as king.

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At the end of Docx’s article, however, he posits that there are hard challenges that cannot (easily) be avoided by the clowning prime minister:

‘The difficulty for the clown is that once truth and seriousness have been merrily shattered, they cannot be put back together and served up anew. Or, to put it another way, the buffoon who has just entertained the audience by smashing all the plates cannot now say that he proposes to use them to serve up a banquet in honour of himself becoming a wise and honest king. Everyone can see: the plates are all in pieces on the floor.’

One of these challenges is more policy than law – the many serious failures of the government United Kingdom in respect of the Covid pandemic.

Here Docx points out that Johnson is now seeking to tell a story so as to lift him out of any culpability:

‘Are we supposed to forget this legacy and “move on”? That is what Johnson is now tacitly suggesting. Like all storytellers, he knows the public remember endings, less so beginnings and seldom the middle. He did all he can, he says. He knows it’s not true, but that is what he is selling.’

Here Docx appears to be doubtful of his own plate-smashing analogy.

People may elect not to see the damage: Johnson can – and may well will – distract us by more plate-smashing: world-beating plate-crashing, no doubt.

The other challenge, however, is squarely constitutional.

And that is the future of the union.

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Docx rightly observes that there is a pending constitutional crunch: ‘the realm really is still falling apart. Johnson’s predicament could not be more starkly illuminated than by the next existential challenge he faces: to do with the very nature of the union of England, Scotland, Wales and Northern Ireland.’ 

Johnson’s predicament here affirms the truth of the old Hebrew proverb about the difference between a clever person and a wise person: a clever person can get out of situations that a wise person would not get into.

The lack of wisdom here, however, is not that just of Johnson.

The folly of the in/out referendum was that of David Cameron, and the infliction of a ‘hard Brexit’ (with the United Kingdom outside the European Union customs union and single market) was by Theresa May.

Wiser heads – who realised the precariousness and fragility of constitutional arrangements – would not have risked the future of the United Kingdom, as Cameron did, on one turn of pitch-and-toss.

Nor would they have insisted on an extreme form of Brexit in the first few months after the referendum, as May did.

Johnson was not responsible for either of those two calamitous decisions, which in turn have created what Docx rightly calls the ‘existential challenge’ of keeping the union together.

The fool may have become prime minister – but only after the two previous prime ministers had made the most foolish of decisions.

And given those foolish decisions – and their necessary implications for the position of Northern Ireland – then there is not a great deal that Johnson can do.

The clown has not so much taken over the stage: it is more that supposedly wiser rulers have left the stage to the clown alone.

And, of course, Johnson will approach the problem with his strategic dishonesty and tactical buffoonery – but, frankly, what else has he got?

The constitutional logic of the Brexit that was in place before he became prime minister will continue to unfold.

Slapping sticks is perhaps all that is left.

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All this said: never underestimate the trickster.

A clever person may be the one who gets out of situations that a wise person would not have got into – but the clever person may still do so all the same.

And as Docx avers: ‘the clown is always in a deeper relationship with the audience than with his ostensible subject.’

The plates that may now smash will be as big as the union itself.

The United Kingdom of Great Britain and Northern Ireland may not last another few years in either form or substance.

But the clown-king may still be able to get away with it – and still be prime minister of whatever is left, with claps and cheers for more.

The audience may never see or care what damage is done in the meantime.

And this is not just because of the skills and talents of the clown-king but because of the stage we are now at in the story of Brexit and the United Kingdom – to use a phrase of Johnson’s earnest antonym as prime minister – there may be no real alternative.

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“Will it please you to see the epilogue, or to hear a Bergomask dance between two of our company?”

– Act V, Scene 1, A Midsummer Night’s Dream

 

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What now stands between a populist authoritarian government with a huge majority and a full scale assault on civil liberties and human rights?

 18th March 2021

Earlier this week the house of commons passed the government’s illiberal Police, Crime, Sentencing, and Courts Bill with a ninety-six majority.

So given this high majority the obvious question is what would actually stop or hinder a populist and authoritarian government from seeking to pass primary legislation that would remove or undermine basic legal protections and rights? 

This is not a trivial or academic question.

The usual ‘gatekeepers’ that would prevent a government from not even proposing such things are no longer in place.

For example, the offices of lord chancellor and attorney-general are occupied by politicians who happen to be lawyers but have no credentials in protecting either the rule of law or fundamental freedoms.

And we have a government heady with ‘will of the people’ rhetoric that has developed a taste for attacking or disregarding what checks and balances the constitution of the United Kingdom has to offer.

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In constitutional theory, the next check – once legislation is proposed – is the house of commons.

But with such a large majority – and the tendency for even supposedly ‘libertarian’ government backbenchers to vote in accordance with the whip and accept limp front-bench assurances – there is no realistic way that the house of commons is any check or balance on this government.

And if the opposition do oppose – which cannot be assumed, given the official opposition’s habit of not opposing things for tactical and strategic reasons – then such opposition can and will be weaponised by hyper-partisan ministers and their media supporters.

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Next there is the house of lords, where (fortunately) the government does not have an in-built majority.

And the house of lords can vote things down and pass amendments.

But.

When constitutional push comes to political shove, the house of lords will usually backdown once the house of commons has reaffirmed its support for a measure.

This is in part that the the house of lords has a, well, constitutional disability in respect of confronting the democratic house.

There will only be a few occasions where the house of lords will use its power to delay legislation under the parliament acts.

And that power is that: to delay.

A determined government, with the support of the house of commons, will get its legislative way in the end.

A government in these circumstances would not even need to resort to an ‘enabling act’ – as it would get through any desired illiberal legislation anyway.

There are a very few exceptions to this: such as a bill containing any provision to extend the maximum duration of a parliament beyond five years.

But otherwise: there is nothing that can ultimately stop an illiberal bill eventually becoming an act of parliament.

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And then we come to the courts.

Here we have another problem.

Because of the doctrine of parliamentary supremacy there is nothing that the courts would be able to do – as long as the government has ensured that the statutory drafting is precise and tight.

The human rights act, for example, provides no legal basis for an act of parliament to be disapplied.

The judgments of the European court of human rights are not binding.

The European communities act, which did enable a court to disapply an act of parliament on certain grounds, is no longer part of domestic law.

‘Common law rights’ capable of frustrating an act of parliament exist only in undergraduate law student essays.

Even with the powers the courts do have, the government is seeking to limit access to judicial review by all possible means: in substantive law, by procedural restrictions, and by denying legal aid.

(And the courts have taken an illiberal turn anyway: and we now have a president of the supreme court, in an unanimous judgment, telling the court of appeal off for not according ‘respect’ to a home secretary’s assessments.)

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Before the general election of December 2019 we had the unpleasant predicament of a government that was populist and authoritarian – but at least it did not have a parliamentary majority.

Now, by reason of that general election and its result, we have a government with the same illiberal instincts but with all the sheer legal force of parliamentary supremacy at their disposal.

That the opposition parties facilitated an early general election in December 2019 was a moment of political madness.

And now – until at least December 2024 – we have a government that is able with ease to get the house of commons to pass the most illiberal legislation – and there is ultimately nothing that either the house of lords or the courts can do – as long as the legislation is precise and tight.

Brace, brace.

***

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The European Commission launches legal proceedings against the United Kingdom – a guided tour

 16th March 2021

The European Commission announced yesterday that it had ‘launched legal proceedings’ against the United Kingdom.

What has happened is that a formal legal notice has been sent by the European Commission to the United Kingdom.

To say this is ‘launch[ing] legal proceedings’ is a little dramatic: no claim or action has been filed – yet – at any court or tribunal.

But it is a legally significant move,  and it is the first step of processes that, as we will see below, can end up before both a court and a tribunal.

This blogpost sets out the relevant information in the public domain about this legal move – a guided tour of the relevant law and procedure.

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Let us start with the ‘legal letter’ setting out the legal obligations that the European Commission aver the United Kingdom has breached and the particular evidence for those breaches.

This is an ‘infraction’ notice.

As the European Commission is making some very serious allegations – for example, that the United Kingdom is in breach of the Northern Ireland protocol – then it is important to see exactly what these averred breaches are.

This information would be set out precisely in the infraction letter – informing the ministers and officials of the United Kingdom government of the case that they had to meet in their response.

But.

We are not allowed to see this letter.

Even though the European Commission is making serious public allegations about the United Kingdom being in breach of the politically sensitive Northern Ireland Protocol, it will not tell us the particulars of the alleged breaches.

This is because, I am told, the European Commission does not publish such formal infraction notices.

There is, of course, no good reason for this lack of transparency – especially given what is at stake.

The European Commission should not be able to have the ‘cake’ of making serious infraction allegations without the ‘eating it’ of publishing them.

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And so to work out what the alleged breaches are, we have to look at other, less formal (and thereby less exact) sources.

Here the European Commission have published two things.

First, there is this press release.

Second there is this ‘political letter’ – as distinct from the non-disclosed ‘legal letter’.

What now follows in this blogpost is based primarily on a close reading of these two public documents.

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We start with the heady international law of the Vienna Convention on the law of treaties.

Article 26 of the Vienna Convention regards the delightful Latin phrase Pacta sunt servanda.

In other words: if you have signed it, you do it.

Agreements must be kept.

You will also see in Article 26 express mention of ‘good faith’.

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We now go to the withdrawal agreement between the United Kingdom and the European Union.

There at Article 5 you will see that the United Kingdom and the European Union expressly set out their obligation of good faith to each other in respect of this particular agreement:

So whatever ‘good faith’ may or not mean in a given fact situation, there is no doubt that under both Article 26 of the Vienna Convention generally and under Article 5 of the withdrawal agreement in particular that the United Kingdom and the European Union have a duty of good faith to each other in respect of their obligations under the withdrawal agreement.

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The European Commission not only allege that the United Kingdom is in breach of its obligation of good faith but also that the United Kingdom is in breach of specific obligations under the Northern Ireland protocol (which is part of the withdrawal agreement).

The press release says there are ‘breaches of substantive provisions of EU law concerning the movement of goods and pet travel made applicable by virtue of the Protocol on Ireland and Northern Ireland’.

The ‘political letter’ says:

So it would appear that the relevant provisions of the withdrawal agreement are Articles 5(3) and (4) of the Northern Ireland and Annex 2 to that protocol.

Here we go first to Annex 2.

This annex lists many provisions of European Union law that continue to have effect in Northern Ireland notwithstanding the departure of the United Kingdom.

Article 5(4) of the protocol incorporates the annex as follows:

‘The provisions of Union law listed in Annex 2 to this Protocol shall also apply, under the conditions set out in that Annex, to and in the United Kingdom in respect of Northern Ireland.’

As such a breach of Article 5(4) is a breach of the European Union laws set out in that annex.

Article 5(3) of the protocol is a more complicated provision and it is less clear (at least to me) what the European Commission is saying would be the breach:

My best guess is that the European Commission is here averring that the United Kingdom is in breach of the European Union customs code (which is contained in Regulation 952/2013.)

As regards the specific European Union laws set out in Annex 2 that the European Commission also says that the United Kingdom is in breach of, we do not know for certain because of the refusal of the commission to publish the formal infraction notice.

On the basis of information in the press release and the ‘political letter’ it would appear that the problems are set out in these three paragraphs:

Certain keyword searches of Annex 2 indicate which actual laws the European Commission is saying being breached, but in the absence of sight of the formal infraction notice, one could not know for certain.

The reason the detail of what laws are at stake matters is because each instrument of European Union law may have its own provisions in respect of applicability, enforceability and proportionality that could be relevant in the current circumstances.

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So: what next.

Two things – the European Commission is adopting a twin-track, home-and-away approach.

One process will deal with the substantive provisions of European Union law – and the other process will deal with the matter of good faith.

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In respect of the alleged substantive breaches of European Union law, the European Commission has commenced infraction proceedings – as it would do in respect of any member of the European Union.

As the ‘political letter’ pointedly reminds the United Kingdom:

The United Kingdom is still subject to the supervisory and enforcement powers of the European Union in respect of breaches of European Union law in Northern Ireland.

You thought Brexit meant Brexit?

No: the government of Boris Johnson agreed a withdrawal agreement that kept in place the supervisory and enforcement powers of the European Union – including infraction proceedings of the European Commission and determinations by the Court of Justice of the European Union.

And so in 2021 – five years after the Brexit referendum – the European Commission is launching infraction proceedings against the United Kingdom under Article 258 of the Treaty of Rome:

This means there could well be a hearing before the Court of Justice of the European Union.

One does not know whether this would be more wanted or not wanted by our current hyper-partisan post-Brexit government.

One even half-suspects that they wanted this all along.

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The other track – with the European Commission playing ‘away’ – is in respect of the general ‘good faith’ obligation – as opposed to the substantive European Union law obligations under Annex 2.

Here we are at an early stage.

In particular, we are are at the fluffy ‘cooperation’ stage of Article 167:

If this fails, then the next stage would be a notice under Article 169(1):

Article 169(1) provides that such a formal notice shall ‘commence consultations’.

And if these Article 169 consultations do not succeed, then we go to Article 170:

The arbitration panel – and not the European Commission nor the European Court of Justice – would then determine whether the United Kingdom is in breach of its general obligation of good faith.

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We could therefore end up with two sets of highly controversial proceedings.

The European Commission has intimated the processes for both to take place in due course.

From a legalistic perspective, the European Commission may have a point – depending on what the alleged breaches actually are.

A legal process is there for dealing with legal breaches – that is what a legal process is for.

But.

When something is legally possible, it does not also make it politically sensible.

A wise person chooses their battles.

And if the European Commission presses their cases clumsily, then the legitimacy and durability of the withdrawal framework may be put at risk.

Brace, brace.

***

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Post-Brexit policy does not need to be like this – no, it really does not – but there are no other post-Brexit policies in town

13th March 2021

The best blogger about Brexit is Chris Grey and his weekly blog is a valuable resource in understanding Brexit as it has gone along.

In particular, the blog correctly emphasises that at each step there were choices made and not made – that things could have gone differently – and how (usually) the bad decisions ended up being made.

As the tricks of mind of hindsight and evasion begin to have their effects on the collective memory, Grey’s blog will be a crucial reminder of how things were at the time.

His post this week, however, is a detailed – and brutal and delightful – critique of a recent column by the new Brexit cabinet minister David Frost – and it is not only a critique but also a warning.

The warning is that the current government is – out of the various options available – choosing one which is especially damaging for the United Kingdom.

But the option being chosen is – in the minds of the Brexiter ministers – validated by the experience (so far) of ‘getting Brexit done’.

Of course, for the reasons that Grey sets out, the Brexiter ministers have drawn the wrong lessons from this formative experience.

Part of this is down to personalities – in particular the personalities of Frost and prime minister Boris Johnson.

And politics often does come down just to personalities. 

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But.

There is a risk that a preoccupation on personalities means that the lack of alternative policies being promoted is overlooked.

For although the Frost-Johnson approach is, as Grey avers, ‘a sorry mixture of blather, nonsense, disingenuity and dishonesty’ – it also has another quality.

It is the only post-Brexit policy in town.

The Labour opposition has no post-Brexit policy – and is (no doubt for strategic and tactical reasons) opting not to put forward an alternative policy.

Those who are former remainers and are seeking the United Kingdom to (re)join the European Union do not have a post-Brexit policy as such – unless simply not wanting to be outside the European Union can be a policy.

And the moderate and practical Conservatives who might have advocated a more constructive post-Brexit policy were largely purged from the house of commons at the last general election.

So there is a vacuum where an alternative, constructive post-Brexit policy should be.

In contrast to this void, Frost-Johnson not only have a policy but also maintain that the policy is validated by the experience so far of Brexit – and so it has a certain superficial plausibility.

And until and unless there is another post-Brexit policy in town – which accepts the brute political fact of Brexit but seeks to go in another direction – then the Frost-Johnson approach will face no challenge other than from reality.

Such an alternative, constructive policy is perfectly possible – as Grey’s blog and other commentary shows, there are choices available.

But unless the politics of this post-Brexit period change radically, the Frost-Johnson approach has the political town to itself – and it is very good at misdirection and evasion when things go wrong.

Although commentators can point this out in real-time that will make no difference unless opposition politicians also act in real-time to put forward other post-Brexit policies.

And – yes, the Frost-Johnson post-Brexit approach can and should be blamed for many things, but it cannot be blamed for a lack of policy and political alternatives.

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The issues of the Ireland/Northern Ireland Protocol are more fundamental than the political antics of David Frost and Boris Johnson

9th March 2021

Those who follow Brexit are likely to have strong opinions on the merits of Brexit, and those strong opinions will in turn to influence how each development is approached.

Supporters of Brexit will clap and cheer at certain things, and opponents of Brexit (or of this government’s approach to Brexit) will rage and jeer.

One side will tend to see the government as doing nothing wrong, and the other side will see the government as doing everything wrong.

And such partisanship means any problem is seen either as not existing or as entirely the fault of the government of the United Kingdom.

But not everything is the fault of a bunch of politicians in one place and at one time.

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In a recent post at the London School of Economics blog, Professor Katy Hayward of Queen’s University Belfast has done a short explainer on the Ireland/Northern Ireland Protocol – and it is perhaps one of the best short explainers on Brexit generally.

But the one phrase in that post which stood out for me was this:

‘It is true that – with the best will in the world (which is evident among most businesses in NI) – the new border regime is still far from ready for full implementation.’

So used are many of us at seeing as every failing of Brexit as being directly attributable to the expedient follies of the United Kingdom government that it can sometimes be forgotten that even if we were suddenly to have a sensible and practical government many Brexit problems would still be there.

For this is the very nature of fundamental problems: mere superficialities cannot and do not make any difference.

That is why the problems are, well, fundamental.

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Hayward’s post reminds us of how the Ireland/Northern Ireland protocol is exceptional: it affects an internal boundary of one of the parties; it applies different rules to goods moving in one direction than the other; the applicable rules in one direction are that of the European Union and not the United Kingdom; and that in respect of those applicable rules, it will be the United Kingdom that will be applying them, not the European Union.

As Hayward wisely observes: ‘This entails a great deal of trust on the EU side and a great deal of responsibility on the UK side.’

And these are just the structural problems.

There are then many practical problems, as with any trade agreement – which were, of course, exacerbated by the reckless, last-minute approach to the negotiation and implementation of the protocol.

And.

And to demonstrate the adage that there is nothing in political affairs that the current government of the United Kingdom cannot make worse, there are the clumsy and confrontational antics of the relevant minister David Frost.

In the words of Hayward: 

‘The EU is frustrated at the lack of readiness, compliance and, now, the trustworthiness of the UK.’

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But the value of Hayward’s post is not just in that pay-off line, but in it showing us that even if Frost was not playing to the gallery, the structural and practical problems would still be there – and just as pressing and urgent.

This means that the European Union – and the rest of us – should not get preoccupied with the current political problems – as distinct from the structural and practical problems.

Just as the claps and cheers of the political and media supporters of the government are not enough to get Brexit ‘done’ – a similar but opposite superficial response to such political idiocy is not sufficient as a remedy to the current problems.

Put bluntly: if prime minister Boris Johnson and various of his ministers all resigned this evening, the structural and practical problems identified by Hayward would still be there in the morning.

And so Hayward is right to aver that the European Union should seek to avoid getting too caught-up in our current government’s short-term silliness – the ‘moral hazard’ of which I set out in a recent post.

The problems addressed by – and caused by – the Ireland/Northern Ireland Protocol will be there as long as the United Kingdom is out of the European Union and Northern Ireland is part of the United Kingdom.

***

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The United Kingdom government says yet again it will break international law – and why this is daft, dangerous, and dishonest

7th March 2021

Another month, another move by the government by the United Kingdom that will break international law.

This time it is the announcement of a unilateral move in respect of a grace period for for temporary agrifood movements to Northern Ireland.

This, of course, from a United Kingdom government that repeatedly boasted of its readiness for a swift withdrawal from the European Union without any agreements in place.

Now the government of the United Kingdom wants grace periods – the latest in a succession of extensions and ‘implementation’ and ‘transition’ arrangements, all with the effect of the government of the United Kingdom pretending to itself and others that there has not been any actual departure from the European Union.

And this is not in respect of any old international obligation imposed by some outside body – but in respect of obligations that this United Kingdom recently negotiated, signed, obtained a mandate for at a general election, and rushed through parliament without scrutiny.

It is all rather daft.

One of the wonders of the age is that so many political and media supporters of the government still clap and cheer at these self-inflicted pratfalls.

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In turn, the European Union is unequivocal:

‘Following the UK government’s statement today, Vice-President Šefčovič has expressed the EU’s strong concerns over the UK’s unilateral action, as this amounts to a violation of the relevant substantive provisions of the Protocol on Ireland/Northern Ireland and the good faith obligation under the Withdrawal Agreement.

‘This is the second time that the UK government is set to breach international law.’

This response from the European Union indicates not only why the threatened unilateral breach is daft – but also why it is also dangerous.

The post-Brexit future of the United Kingdom now depends on being able to be taken seriously as an independent international trade partner.

But each signal that the government of the United Kingdom will casually breach obligations into which itself negotiated and entered is a signal that the United Kingdom is not to be trusted.

This bad faith will have two effects.

First, doors will silently close on the United Kingdom – as why would any trading nation strike a substantial deal with the United Kingdom when the United Kingdom shows itself willing to break such an agreement within weeks?

And second, those agreements that do go ahead will have built into them protections and allocations of risk to address the United Kingdom’s untrustworthiness.

No sensible country watching any of this will assume there will be good faith from the United Kingdom in any international agreement.

The trade negotiators of the United Kingdom may as well all turn up to any negotiation sessions wearing sandwich boards saying ‘kick us’.

This is the moral hazard that the United Kingdom has created for itself.

And it is the very last thing a country in the position of the United Kingdom should be doing, as it moves into its post-Brexit future.

Indeed, the government should be doing the opposite: making sure that every move and statement is geared towards building up international credibility.

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As the historian Robert Saunders avers, the ultimate problem here is honesty – with itself and its supporters, as well as others:

That this observation is, well, so obvious would make one think there could perhaps be a quick moment of realisation – that the government and its supporters will realise the folly of their bad faith.

But there is a real risk that the government of the United Kingdom will keep on with this daft, disastrous and dishonest approach – as the marginal political gains seem preferable to facing up to the structural and strategic damage.

The adverse consequences will just be factored into elsewhere in the international arrangements (and lack of arrangements ) of the United Kingdom.

There is no such thing as a free lunge to lawlessness and bad faith.

***

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Brexit is already structured as a negotiation without end – but what happens if Brexit continues to be a political row without end?

24th February 2021

One of the wisest and most perceptive of political commentators is Rafael Behr – and at the end of a recent wise and perceptive column is this wise and perceptive observation:

‘For the true believers, a good Brexit is one that keeps the grievance alive; that makes foreigners the scapegoat for bad government; that continues to indulge the twin national myths of victimhood and heroic defiance. Measured for that purpose, Johnson’s pointless Brexit is perfect.’

Another commentator Mujtaba Rahman makes similar points in this depressingly plausible thread:

Is there anything in these pessimistic takes?

Are things likely to now get worse – or at least not get any better?

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As I set out in this Financial Times video, the trade and cooperation agreement is structured deliberately as framework for ongoing negotiations between the European Union and the United Kingdom:

This requirement for ongoing engagement is a feature – and not a bug – of the departure arrangements.

There are institutions and processes in place for constant dialogue – and five-yearly cycles are expressly envisaged for more fundamental shifts in the relationship.

The formal relationship will be, and is intended to be dynamic, not static.

This was, of course, always likely to be the case with a Brexit which has been conducted at speed and with little or no planning or indeed thought.

Many things were left undone with the intention of dealing with them later.

But whatever the explanation, one thing that can be said with certainty is that the Brexit we have had is not a ‘once-and-for-all’ event where ‘with-one-bound-we-were-free’.

So regardless of the mood of politicians the law and policy process of Brexit has not gone away – and may well never do so, at least for a political generation or two (or three).

*

Law and policy is one thing – and politics is another.

One can perhaps envisage a future – even under the current arrangements – where the Brexit issue is de-intensified, and where everyone gets on in a post-Brexit context.

But.

If the observations of Behr and others are correct such an outlook is unduly optimistic.

Many Brexit arguments are instead now beginning – and will become all the more intense because now they have supposed facts of ‘EU v UK’ to feed off, as opposed to the definite fictions.

If this is the case, then there will be implications for the framework provided by the trade and cooperation agreement.

For that framework is intended implicitly as almost a technocratic device – a means by which two friendly entities merely and boringly manage a relationship, making adjustments as they go along.

Talking shops, not boxing rings.

Less clear is how the trade and cooperation agreement – and also the Ireland/Northern Ireland protocol of the prior withdrawal agreement – will take a never-ending storm of partisanship and hostility.

That is not what these agreements were designed for.

The clue is in the ‘cooperation’ part of the very name ‘trade and cooperation agreement’.

Cooperation it says, and not confrontation.

It is not a trade and confrontation agreement.

*

Yet.

Few things are inevitable in human affairs.

It is still only February – the month after the Brexit transition arrangements came to an end.

Nothing that has so far happened can demonstrate with certainty what the first few years of Brexit will be like.

Things may calm down, or things may get far worse, or something new may come along which changes everything.

All that said, however, this early volatility indicates that any easy and quick passage of the United Kingdom to full participation in the European Union single market and customs union is unlikely – and still less the prospect of rejoining.

Even if things do calm down, they are now unlikely to go back to how they were.

*

The key political question now is whether the government and its political and media supporters can themselves ‘move on’ from Brexit.

For if they cannot politically ‘move on’ then the Brexit withdrawal and cooperation arrangements (which this government itself negotiated, signed, won an electoral mandate for, and implemented into law) will be politicised and contested in the same way membership of the European Union was politicised and contested.

And it is not inevitable that the Brexit withdrawal and cooperation arrangements will be able to withstand such sustained political assaults.

The Brexit withdrawal and cooperation arrangements may have replaced full membership of the European Union, but that does not mean there is in turn an even-smaller Russian doll of a formal relationship available if those arrangements fail.

If the Brexit withdrawal and cooperation arrangements crash, there may be nothing to replace them.

Brace, brace.

*****

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The significance of the appointment of Lord Frost as a cabinet minister for Brexit

18th February 2021

Compare and contrast two government statements.

The first – which was released to the media though not (it seems) published on the government website – is from just before Christmas 2019.

The statement read:

“The Department for Exiting the European Union will be wound up once the UK leaves the EU on the 31 January.

“DExEU staff have been spoken to today. We are very grateful for all their work and we will help everyone to find new roles.”

The notion was that, now Brexit had been ‘delivered’ there was no need for a cabinet-level minister to be dedicated to Brexit.

But Brexit had not been delivered.

Brexit had hardly begun.

For as this blog as previously averred – and as I set out in this Financial Times video – Brexit will be a negotiation without end. 

This is because in part of the enormity of the issues that still need to be settled – but it also because of the deliberate structure of the withdrawal agreement and the trade and cooperation agreement.

Both of the Brexit agreements create institutions and frameworks for ongoing negotiations, and negotiations, and negotiations.

That the ‘delivery’ of Brexit will be an ongoing matter for substantial and intense engagement with the European Union is a feature of the withdrawal arrangements, not a bug.

The content and form of the exit agreements are not about once-and-for-all and one-bound-and-we-are-free.

*

And so we come to the second government announcement, from yesterday.

Regardless of the personalities involved – Frost is, in effect, taking over from Michael Gove as the cabinet minister responsible for Brexit, and Gove is a politician many have very strong opinions about – this is a sensible and welcome appointment for four reasons.

First, it shows the government has realised that the task and tasks ahead for Brexit are such that it needs a dedicated minister at cabinet level (even if not, strictly speaking, a secretary of state).

Indeed, the United Kingdom’s relationship with the European Union is likely to be a far more visible and prominent feature of public policy after Brexit than before.

And the cabinet office – and thereby Gove – has many other responsibilities. 

Second, it indicates that the government has realised the folly of creating a special pop-up department for the purpose of dealing with Brexit and is instead working with the grain of the planks of Whitehall than against them.

The cabinet office has many faults, but it at least has the departmental weight, and the expertise and (now) institutional memory on Brexit, that an entirely new department would lack.

Third, as Frost was the United Kingdom’s negotiator of the trade and cooperation agreement, there is a benefit for him also being in place for the negotiations that are to take place within the framework of the agreement.

The many delicate compromises of the agreement, and the agreed processes established to address hundreds (if not thousands) of technical issues (as well as various big ones) will not be – or should not be – news to him.

And fourth, the appointment regularises the position of Frost in the government – making him a formal minister so as to end his limbo state as a politicised adviser and ‘sherpa’.

As such he will be responsible to parliament directly.

*

Not all government decisions – even with Brexit – are calamitous.

Sometimes the government of the United Kingdom can surprise you and do something (eventually) that makes sense.

Of course: there should have been in place a dedicated cabinet minister for Brexit all along – and, if so, various problems over the last year may not have the effects that they did.

But the primary significance of the appointment is that it implies an official acknowledgement that the real work of Brexit is still to come.

If so, perhaps Brexit reality is finally seeping in.

*****

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An introduction to Article 16 of the Northern Irish Protocol

16th February 2021

Article 16 of the Protocol on Ireland/Northern Ireland seems to be fated to become one of those legal provisions known by their number alone, like Article 50 or Section 28.

The provision has already been the feature of a political controversy, when the European Commission made the horrible mistake of invoking Article 16 in respect of proposed regulations about the coronavirus regulations – a proposal that was promptly, and correctly, withdrawn.

The prime minister of the United Kingdom Boris Johnson has also been reported as saying that he would be minded to trigger Article 16 in certain circumstances.

In these circumstances, a working knowledge of what Article 16 says, and does not say, may be useful for those who follow public affairs.

This post provides a basic introduction to the provision, and it complements a video that I recently narrated for the Financial Times.

*

As a preliminary point, just as one does not simply walk into Mordor, one should never go straight to a clause or other provision within a wider legal instrument without an understanding of the purpose of that wider legal instrument.

By analogy: one can perhaps make sense of a line of computer code, but one also needs to understand how that line of code fits in the wider program to elicit its full meaning.

Similarly, an undue focus on the wording and contents of a single provision in any legal instrument can be misleading.

Every article, clause, section – or whatever word used for a discrete portion of legal text – has a context.

And so with Article 16 we have to understand something about the purpose of the Protocol on Ireland/Northern Ireland.

*

The protocol, in turn, does not exist in isolation.

The protocol is attached to the Brexit withdrawal agreement – one of the two vast and complex international agreements between the European Union and the United Kingdom that provide the legal framework for Brexit.

The recitals to the withdrawal agreement – which (literally) recite the background and shared understandings of the parties to that agreement – describe the purpose of the the protocol:

Not just specific, but ‘very specific’.

You will also note the word ‘durable’ – and this indicates that it was the shared understanding of the European Union and the United Kingdom that the protocol would not be a temporary arrangements.

Article 125 of the withdrawal agreement then provides for how and when the protocol takes effect:

You will see Article 16 is not included in the provisions that had immediate effect on the departure of the United Kingdom from the European Union – and so Article 16 has only had legal force since 1 January 2021.

The other main mention of the protocol in the main withdrawal agreement is that there shall be a specialised committee dealing with the protocol as part of the ‘Joint Committee’ that oversees the agreement:

*

Now we can turn to the protocol itself.

Confusingly – and welcome to European Union legal instruments! – the protocol itself has its own recitals and articles.

And the protocol has a lot of recitals – twenty-three recitals (as opposed to nineteen operative articles).

Each one of these recitals sets out expressly a shared understanding of the European Union and the United Kingdom.

In particular, the government of the United Kingdom has put its name to each one of the recitals as a statement of its own understanding.

The recitals are not agreements in themselves, and they are not legally enforceable by themselves, but they do set out the common understandings of the European Union and the United Kingdom that are relevant to the articles that follow.

And these recitals, in particular, are significant:

And:

Note the word ‘guarantee’.

And:

And:

A common response from those unhappy with the protocol is to insist something about what the Good Friday Agreement does and does not provide in respect of a ‘hard’ border.

These recitals, however, do explicitly set in firm and emphatic language the shared understandings of the European Union (including Ireland) and the United Kingdom in respect of there not being a hard border.

And this is in the very ‘oven-ready’ withdrawal agreement for which Johnson and the Conservative Party won a mandate at the December 2019 general election and that was then endorsed by the Westminster parliament.

*

Now the articles – the substantive operative provisions that are entitled to have legal effect as between the parties.

You will see that the articles provide for substantive obligations in respect of the free movement of persons and goods (and Article 5 in turn incorporates an annex listing hundreds of European Union regulations and directives).

There are also provisions for State aid and VAT.

The protocol is, in effect, the legal mechanics for Northern Ireland remaining, in effect, part of the European Union single market and customs arrangements whilst still being part of the United Kingdom single market.

It is a complex and – regardless of one’s political views – remarkable piece of legal drafting, especially given the rush of the exit negotiations.

But as with any legal instrument – especially ones devised at speed and in respect of sensitive issues – there will be problems and disputes and unintended effects.

And this brings us to Article 16.

*

Article 16 comprises just three paragraphs:

The article is entitled ‘Safeguards’ – and not, for example, ‘Sanctions’ or ‘Retaliatory measures’.

The first paragraph then provides the triggers for the safeguards.

There are two triggers.

First: ‘if the application of this Protocol leads to serious economic, societal or environmental difficulties that are liable to persist’.

Here note the requirements that the difficulties need to be ‘serious’ and ‘liable to persist’ – that it, not trivial or temporary.

Second: ‘if the application of this Protocol leads to…diversion of trade’.

Again, ‘diversion’ indicates something significant and lasting.

*

If either of these triggers are met then either the European Union or the United Kingdom ‘may unilaterally take appropriate safeguard measures’.

Note the requirement that the measures be ‘appropriate’ – and also (deftly) the measures have to be ‘safeguard’ measures, and not any old measures.

Paragraph 1 of the article then also adds further requirements in respect of the scope and duration of the safeguard measures, and subjects the measures to a test of strict necessity.

And – and! – priority should be given to ‘such measures as will least disturb the functioning’ of the protocol.

Paragraph 2 of the article then provides for similar tests for any ‘balancing’ measures of the other party.

These are all onerous substantive tests – and each one must be met for a safeguard measure to be adopted.

And these are just the substantive tests – for Annex 7 to the protocol also provides for the procedure that also has to be followed.

*

Annex 7 contains six ‘points’:

You will see point 1 provides a duty of notification at the stage the safeguard measure is being considered.

Point 2 then provides that the next stage is consultations.

Point 3 then imposes a general one month delay, unless the consultations have ended quickly or there are ‘exceptional circumstances’ and the measures are ‘strictly necessary’.

Point 5 then provides that, in addition to the requirement that the safeguard measures not endure longer than necessary, there is a three month review period.

*

All of these substantive and procedural provisions are consistent with the measures being of the nature as described on the tin: ‘safeguard measures’.

The measures are to be protective – and what is to be protected is the operation of the protocol and the shared understandings on which the protocol rests.

This means any attempt to use the safeguard measures to, say, alter the operation of the protocol, or to disturb the shared understandings on which the protocol rests, is outside the purpose of the safeguard measures.

In simple terms: that is not what the safeguard measures are safeguarding.

*

Of course, politicians being politicians, there will be a temptation to use the Article 16 safeguard measures for other purposes – as leverage in trade discussions, or as retaliatory weapons, or as an attempt to re-write or even discard the protocol.

But even if the intention is to misuse the safeguard measures, the measures are – at least in theory – subject always to the substantive requirements of Article 16 and the procedural requirements of Annex 7.

Of course: all legal instruments are only ever as powerful as the human will to enforce their terms.

For Quis custodiet ipsos custodes? – the eternal question of who watches the watchmen – applies here, as elsewhere.

What – or who – shall safeguard the safeguards?

*****

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Why political conservatives should embrace free historical inquiry – rather than imposing and promoting an official version of the history of the United Kingdom

15th February 2021

Another weekend, another Sunday newspaper splash from the government and its media supporters hoping to have a culture war to which their opponents will come.

From yesterday’s Sunday Telegraph:

Now, having digested (or otherwise) this ‘torpedo’, let us go back thirty-or-so years to a time when political conservatism in the United Kingdom was in a far more intellectually confident state.

The late 1970s and 1980s was when a range of conservative (big ‘C’ as well as little ‘c’) academics and public intellectuals were challenging (perceived) orthodoxies in many intellectual disciplines: economics, sociology, and so on.

In the historiography of the United Kingdom, in particular, many received versions were being questioned.

Jonathan Clark and others were subverting the ‘whig’ or ‘Enlightenment’ view of the ‘long eighteenth century’ of 1660-1832 and were urging instead that religion generally and Anglicanism in particular be taken seriously as an explanatory means of understanding political and social change – and lack of change.

For the nineteenth century, John Vincent and Maurice Cowling were disputing that the widening of the franchise in the 1860s was to do with any sense of democratic progress, and were contending instead that it was far more about the cynical political opportunism of the politicians involved.

In respect of the twentieth century, Correlli Barnett was confronting the comforting origins of the post-war welfare state consensus with an equally discomforting counter-narrative in his Pride and Fall sequence.

A brilliant young historian named Andrew Roberts took on head-first the most cherished of recent British myths in a book entitled Eminent Churchillians – the poundering revisionism of which would make even the most devoted admirer of Netflix’s The Crown blush.

(Eminent Churchillians remains Roberts’ best book by a country mile – and its demolition of Arthur Bryant’s patriotic history a delight.)

There were many others.

It was a fascinating – exciting – moment to be a student of history (as I was).

And all this at a time when communism (in its post-war form) was about to come to an abrupt end, notwithstanding the claims from a few (if not the many) that such a system was historically inevitable.

*

Thirty years later, no doubt little of this intellectual energy has perhaps left a lasting historiographical mark.

The weaknesses and faults of these historians and their histories have, in turn, been exposed.

Historiography has moved on.

But at the time it signalled an unafraid seriousness to take on and replace versions of history on which liberal and progressive pieties often rested complacently.

And it was not an accident that these academic challenges were concurrent with the politics of Thatcherism that also sought to take on the certainties of left wing and centrist positions.

So it seems telling that the conservatives of today do not share the intellectual confidence of their counterparts of thirty-or-so years ago.

Instead of taking on histories that show the precariousness of the ‘Union’ of the United Kingdom, or how much British economic development depended on the ownership of slaves and the system of slavery, or how the British empire was as just as exploitative and brutal as any other empire – these discomforting challenges to the conservative worldview are to be ‘torpedoed’ by bureaucratic directions instead. 

*

Many ideologies have, as a component, a theory of history.

Certainly many ideologues do.

And this is true for internationalists as well as nationalists, liberals and progressives as well as conservatives, Remainers as much as Brexiters, and so on.

One test of the soundness – indeed robustness – of that ideology is how it copes with fundamental challenge.

Are the ancient tools of ‘heresy’ and ‘blasphemy’ re-fashioned with modern guises so as to do the work of closing down unwelcome subversions?

Or are the foundations of the ideology more robust than that?

(And there is always the question of whether a thing is an ‘ideology’ just because you say it is.)

*

A great deal of modern political conservatism – now hardening into the worship of plaster and plastic heroes – was based on the questioning of received historical conventional wisdoms in the 1970s and 1980s.

And now conservatives want to pull their intellectual shutters down, pull up the historical drawbridge, and fill the moat with torpedoes.

Those who support the current government of the United Kingdom – and the view of the British past that it promotes – should relish taking on the historiographical challenges presented by a more-rounded understanding of the history of these islands and of their economic and imperial history.

For if that ‘Brexit’ understanding of British history was valid then current Brexit positions will be validated.

And if those understandings are invalid, then it will show that the Brexit endeavour may itself be misguided.

*****

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This law and policy blog provides a daily post commenting on and contextualising topical law and policy matters – each post is usually published at about 9.30am UK time – though some special posts are published later.

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