Brexit – Page 4 – The Law and Policy Blog

Article 16, again – what, if anything, has changed?

26th August 2022

Article 16, again.

Here is this blog in February 2021:

In September 2021:

And in October 2021:

There are many more.

Like many commentators on Brexit, it feels like I have written sixteen articles on Article 16.

There was a time when every weekend had a Sunday newspaper briefed that Article 16 was about to be triggered.

And here we go again.

What new can be said?

In some ways, there is not a lot that is new to say.

Triggering Article 16 will not have the dramatic – cathartic – effect that some breathless political and media supporters of the government believe it will have.

A gun is not fired, just a talking shop established.

And the provision cannot be used to dismantle the Northern Irish Protocol.

If you want to read more along those lines. click on the links to the explainers above.

But.

Some things have changed.

And it may actually be wise for the government to trigger the provision.

This is because the United Kingdom is now in the absurd position of proposing primary legislation on the Northern Irish Protocol under the pretence that it is “necessary” for the United Kingdom government to not perform or comply with its obligations under the protocol.

The government raced to putting forward this draft legislation without going down the Article 16 route that was intended to deal with any problems with the protocol.

By actually setting up a formal talking shop on the protocol then there is the possibility of constructive engagement with the European Union, rather than this silly legislative exercise.

Article 16 should have been triggered ages ago – as it would enable structured talks.

The reason one suspects that the government has not triggered Article 16 is that ministers know – or should know – that it will not have the exhilarating effects set out in the government-supporting media.

But it could have beneficial effects – and any safeguard measures would have to proportionate and time-limited.

Article 16 may therefore offer a way of choreographing a resolution of the perceived issues over the Northern Ireland Protocol.

Of course: this assumes that our government under the incoming Prime Minister wants a solution and is operating in good faith.

Just typing those words makes one realise how unsound such an assumption is.

But.

Structured talks under the Article 16 regime can only be a good thing and the government’s scarce time and resources would be better used in doing this than in pursing the misconceived primary legislation to allow the government to break the law.

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Did Johnson lie to the Queen on the prorogation issue? – a summary

16th August 2022

Yesterday’s post caused a little bit of excitement elsewhere on the internet, and so I think it may be useful to set out the core of that longer post in one shorter post today.

The reasoning for my argument is as follows.

1. There was communication between the Prime Minister and the Queen.

This is not in dispute, and the evidence before the court was that a formal telephone call was to take place on 27 August 2019 between the Prime Minister and the Queen the day before she would be attended by Privy Councillors to make the relevant order.

The reason this was a telephone call was because the Queen was in Balmoral.

2. In this telephone call the Prime Minister would have given reasons for the prorogation order.

This should not be a controversial point, as that would have been the purpose of the call, and the Queen and her private office would have wanted to be confident that all was proper and constitutional.

That the Prime Minister would have given reasons is supported by the witness evidence for the prorogation case of the former Prime Minister John Major:

3. The reasons the Prime Minister would have given would have been those recorded in the contemporaneous documentation.

As the litigation revealed, there had been internal documentation created in August 2019 which purported to set out the reasons for the prorogation.

In essence, the purported reasons were as follows:

“The current session is the longest since records began, and all bills announced as part of the last Queen’s Speech have now received Royal Assent, or are paused awaiting carry over into the next session: this makes it increasingly difficult to fill parliamentary time with anything other than general debates. As a new Prime Minister, there is an expectation that you will set out a refreshed domestic programme and it would be natural to do so when the House returns in the autumn.”

The Prime Minister is unlikely to have admitted that the reasons for the prorogation was to stymie parliamentary accountability in the run-up to the then exit day of 31 October 2019.

4. The reasons he would have given were not the real reasons.

The Scottish appeals court – the Inner House of the Court of Session – found that the request for a prorogation had an “improper motive”.

The Supreme Court adopted a different approach, and held that the reasons given for the five-week prorogation did not add up (emphasis added):

“It is impossible for us to conclude, on the evidence which has been put before us, that there was any reason – let alone a good reason – to advise Her Majesty to prorogue Parliament for five weeks, from 9th or 12th September until 14th October. We cannot speculate, in the absence of further evidence, upon what such reasons might have been. It follows that the decision was unlawful.”

The reasons given were either improper or insufficient – but in either case the reasons were not accurate.

They were not the real reasons.

5. Those who put forward those reasons knew them not to be the real reasons.

This point is in part based on the Scottish appeal court’s finding of improper purpose, but it is mainly based on the absence of a signed witness statement from a minister or official setting out the reasons for the request.

This absence was conspicuous – and it was referred to in the litigation.

The government lawyers just put in as relevant evidence the contemporaneous documentation quoted above.

The Supreme Court expressly set out the consequence of the lack of witness evidence in the passage already quoted above (different emphasis added):

“It is impossible for us to conclude, on the evidence which has been put before us, that there was any reason – let alone a good reason – to advise Her Majesty to prorogue Parliament for five weeks, from 9th or 12th September until 14th October. We cannot speculate, in the absence of further evidence, upon what such reasons might have been. It follows that the decision was unlawful.”

The need for such a witness statement would have been obvious to the government lawyers and would have been reported to senior officials and ministers.

But still nobody seemed willing, under the peril of perjury, to put their name to the purported reasons.

Had the reasons given in the contemporaneous documentation been the correct reasons then there would have been no problem whatsoever in setting them out in a witness statement.

And so there can only be one plausible explanation for the lack of a witness statement.

Those in a position to know the real reasons knew the reasons stated in the documentation (and thereby the reasons which would have been given to the Queen) were not the true reasons.

Conclusion

Given the above points, the conclusion seems to me to be inescapable.

When the Prime Minister spoke to the Queen to give reasons for the prorogation, he knew those were not the correct reasons.

If anybody can show a fault with any of the five points above, or with my chain of reasoning, or with my conclusion, then I will be happy to adjust my view or recant it outright.

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The question of whether Boris Johnson, in effect, lied to the Queen

[ADD – I have now done a short summary of the argument advanced in this post here.]

15 August 2022

On Twitter a number of accounts have recently commented in respect of front page of the Daily Mirror from 12 September 2019:

The online version of the article is here.

The comments are critical of the headline and of the apparent source of the headline, which is me.

I am quoted in the article, on the front page, as follows:

“Legal expert David Allen Green said: “In effect, the court held that Boris Johnson lied to the Queen.””

This seemingly renders me the source of the “Boris lied to the Queen myth”.

Another tweeter has said of the use of the word “lie” here shows that we cannot have civil discourse until adults control how they use language and that, in our system, the law of defamation is supposed to police such silliness.

I also cannot be regarded as a credible legal commentator, I have been told, because of this statement.

(I have deliberately not named the critics here, as I have a bigger platform than they do, and do not want to cause a pile-on.)

Do these critics have a point?

One preliminary point I can make straight away is that I do not think the newspaper headline accurately conveys the argument I was making in the text quoted.

The “in effect” was not mere surplusage – I used the phrase for a reason.

Had I wanted to stated plainly that I knew that the Prime Minister had lied to the Queen, I would have said so.

But I did not say that, because I did not mean that.

I said what had happened showed that, in effect, the Queen had been misled, and that this had been deliberate.

And so I cannot defend the Mirror headline, and I do not do so.

It is not the headline I would have chosen for the piece that quoted me.

And there is another preliminary point.

The view I expressed was not (and was not intended to be) a précis of any judgment – I know what the judgments say just as much as anyone who can read the relevant judgments.

No court was asked to determine if the Queen had been lied to, and so there is no judgment which sets out whether the Queen was lied to or not.

The view I expressed was based on my own reasoning, as a commentator, based on what I had read in a particular judgment and my understanding of the relevant circumstances.

Any judgment is a text and my role as a commentator is to place that text in a context.

This is what I do with many judgments in my commentary, and so this was the view I formed about this particular case.

But.

That is not good enough.

Can I still defend the view that I actually did express: that, in effect, the Queen was lied to?

Let us see.

We now need to go back in time and remind ourselves of the relevant dates.

It was 2019, and the United Kingdom was still a member of the European Union.

The original departure date of 29 March 2019 had been missed, and the exit date was then rearranged a couple of times, with the departure date eventually being set for 31 October 2019.

Johnson became Prime Minister in July 2019.

On 28 August 2019, the Queen made the following order:

“It is this day ordered by Her Majesty in Council that the Parliament be prorogued on a day no earlier than Monday the 9th day of September and no later than Thursday the 12th day of September 2019 to Monday the 14th day of October 2019, to be then holden for the despatch of divers urgent and important affairs, and that the Right Honourable the Lord High Chancellor of Great Britain do cause a Commission to be prepared and issued in the usual manner for proroguing the Parliament accordingly.”

The prorogation of parliament was therefore to be for five weeks, which was unusual in and of itself.

But what made this prorogation politically controversial was that it would deprive parliament from sitting in the key period running up to the then exit date of 31 October 2019, meaning that there was a real prospect of the United Kingdom leaving the European Union without a withdrawal agreement.

As it happened, parliament quickly passed the so-called Benn Act on 9 September 2019, which required the Prime Minister to request an extension in the event that there was no withdrawal agreement in place (which is what Johnson then had to do).

But the legal question at the time was whether the prorogation was lawful.

And the political question was whether Johnson had sought the prorogation for cynical reasons of expediency.

The prorogation faced legal challenges, including one in Scotland.

The appeal judgment of the Scottish case dated 11 September 2019 set out the following events:-

15 August 2019 – a memorandum went to the Prime Minister recommending prorogation, with the reason stated as “The current session is the longest since records began, and all bills announced as part of the last Queen’s Speech have now received Royal Assent, or are paused awaiting carry over into the next session: this makes it increasingly difficult to fill parliamentary time with anything other than general debates. As a new Prime Minister, there is an expectation that you will set out a refreshed domestic programme and it would be natural to do so when the House returns in the autumn.”

16 August 2019 – the Prime Minister wrote the following response:

“1. The whole September session is a rigmarole introduced [REDACTED] to show the public that MPs were earning their crust

2. So I don’t see anything especially shocking about this proposition

3. As Nikki notes, it is OVER THE CONFERENCE SEASON so that the sitting days lost are actually very few”.

23 August 2019 – there is a further memorandum to the Prime Minister, which the court described as a handling plan, saying:

“It refers to the PM’s agreement to approach HM theQueen with a request to prorogue Parliament within the period Monday, 9 to Thursday, 12 September and for a Queen’s Speech on Monday, 14 October. A telephone call between the PM and the Queen was fixed for the evening of 27 August. The Order in Council was to be signed on 28 August. On that day, the Chief Whip and the Leaders of the Houses ofCommons and Lords were to go to Balmoral to form the necessary meeting of the PrivyCouncil. After the signing, the members of the Cabinet would be informed, followed by theParliamentary Party and the press. The planned announcement to the Cabinet was to focus on the extraordinary length of the current parliamentary session. A statement would be made that this could not continue and that the PM would bring forward a new legislative agenda which would take matters “through our exit from the EU and the months that follow”. At the heart of the agenda would be the Government’s “number one legislative priority” (Brexit). If a deal was forthcoming, a Withdrawal Agreement Bill could be introduced to “move at pace to secure its passage before 31 October”. The PM would confirm that he was committed to facilitating Parliament’s ongoing scrutiny of Brexit. He would deliver a statement and take questions on the “first sitting back” (presumably14 October). A draft letter to Conservative MPs was provided. This re-iterated the message to Cabinet Members. It stated that the NIEFA 2019 would be debated on Monday, 9 September and that thereafter the Government would “begin preparation to end theParliamentary session ahead of a Queen’s Speech”.”

The court then noted that on 28 August 2019 three Privy Counsellors attended at Balmoral where the Queen promulgated the Order (which I quote above).

So we now have a sequence of events, which included the Prime Minister telephoning the Queen on 27 August 2019 and for privy councillors to attend for the Order to be made the following day.

The Scottish court decided as follows:

“When regard is had to all the material now before the court, it is my opinion that the petitioners are entitled to be sceptical of the proposition that the reason for making the Order was simply in order to prepare a new legislative agenda for announcement in a Queen’s Speech at the beginning of the next session of the Parliament. Further, I consider that they are entitled to ask the court to infer, as I would infer, as submitted on behalf of the petitioners, that the principal reason for the advice to the Queen to make the Order for the prorogation of Parliament was to prevent or impede Parliament holding the Executive politically to account in the run up to Exit Day; to prevent or impede Parliament from legislating on the United Kingdom’s exit from the European Union; and to allow the Executive to pursue a policy of no deal Brexit without further Parliamentary interference.”

The Scottish court did not believe the reasons which had been given in those quoted documents were the true reasons.

They were false reasons.

The court stated that there had been an improper purpose.

Now we come to something which was missing from the case – and from the concurrent case in England.

The dog that did not bark in the night.

As a former government lawyer, it fascinated me that the court was being invited to look at the original documents for the reasons for the prorogation, and not a comprehensive witness statement of a minster or senior official setting out the reasons.

This lack of a witness statement was referred to in the judgment:

“[Advocate] was also critical of the absence of any affidavit, whether to explain the documents or otherwise to support the reasons for advising the Queen to make the Order. It was for the Prime Minister, submitted Mr O’Neill, to commit to a position on oath and render himself liable to cross-examination. I do not agree with Mr O’Neill on any of these points. In my opinion it is open to a court to look at any documentary production which is tendered to it and give it such weight as the court considers that it is worth.”

This absence, in my opinion, was and is highly significant.

Why would no minister or official commit themselves to a signed witness statement, which would put the minister or official under the peril of perjury?

If the reasons as set out in the quoted documents were the true reasons, then there would be no reason why a minister or official would not sign a witness statement.

The only plausible explanation, it seemed – and still seems – to me is that no minister or official was willing to commit themselves to those being the true reasons for the prorogation, under pain of perjury.

If so, this would mean that they knew those were not the true reasons. So not only were those reasons false, they were known to be false.

This is when I wrote the article which was quoted by the Daily Mirror.

My reasoning was as follows:

1. There had been contact with the Queen by telephone, as well as a formal advice.

2. The Queen would have been give reasons for the prorogation, consistent with the documents quoted above.

3. Those reasons were not the true reasons for the prorogation.

4. Those giving the reasons knew that that they were not the true reasons for prorogation.

Point (1) is from the judgment; point (2) I inferred from the circumstances [ADD – and can be taken from John Major’s witness evidence, quoted below in the POSTSCRIPT]; point (3) was based on what the Scottish court found; and point (4) I inferred from the lack of a signed witness statement.

Based on this reasoning, I stated that – in effect – the Queen had been lied to. She had been given reasons which were false and which those giving the reasons knew to be false.

The Scottish case, like the concurrent English case, then went to the Supreme Court.

This was after my statement which was quoted by the Daily Mirror.

The Supreme Court approached the case differently from the Scottish appeal court – and in particular, the Supreme Court did not base its decision on improper motive.

It approached the case as follows (my emphasis added):

“For the purposes of the present case, therefore, the relevant limit upon the power to prorogue can be expressed in this way: that a decision to prorogue Parliament (or to advise the monarch to prorogue Parliament) will be unlawful if the prorogation has the effect of frustrating or preventing, without reasonable justification, the ability of Parliament to carry out its constitutional functions as a legislature and as the body responsible for the supervision of the executive. In such a situation, the court will intervene if the effect is sufficiently serious to justify such an exceptional course.”

The crucial element here is the requirement for a “reasonable justification”.

And again, that lack of a witness statement made all the difference (emphasis again added):

That dog was still not barking.

Had the Supreme Court had a witness statement from a minister or official setting out the reasons for a five-week prorogation then, in my opinion, I think the government would have won the case.

(I have since spoken with a number of people involved in the case, and they agree.)

The potential importance of the lack of such a witness statement would have been known to the government’s litigation team, and that would have been conveyed to ministers and officials.

But still no signed witness statement was forthcoming.

So: I do not defend the Daily Mirror headline, and nor did I pretend to be summarising the reasoning of the court.

But, for the reasons set out above, I think I can maintain that, in effect, the Queen was lied to.

And if this was not the case, then there needs to be a better explanation than the ones that I have reached for (a) the reasons that were given to the Queen when the Prime Minister telephoned her, and (b) the reason why there was no signed witness statement setting out the reasons for the prorogation.

If someone can come up with a better explanation than the above for (a) and (b) then I will change my view and recant.

But given the reasoning above, I am afraid I cannot escape the view that, in effect, the Queen was lied to.

POSTSCRIPT

I have been reminded that the former Prime Minister John Major, in his witness statement for the legal challenge in England, expressly stated that a Prime Minister would give reasons to the Queen:

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Telling the story of Brexit

11th August 2022

As I am working on a couple of longer posts posts for this blog – and they often take longer than I originally anticipate – this is a just a short post on my long-awaited Brexit book.

The book is still coming on, slowly – and I am grateful for the patience of those who are patient.

In its current form the book is both an account of how Brexit came about and an assessment of its significance.

The book starts with the referendum, and explains how we came to have a referendum and what it meant for this issue to be determined by such a device.

I have two models for the approach I am adopting.

(I am afraid these models come from someone who was taught and studied history in the late 1980s and 1990s – and I am conscious that these models will be sneered at by some, but they are – because of my academic experience – part of my mental architecture, and I have to work with what I have got.)

The first is, of all people and things, G. R. Elton’s book Reformation Europe, which starts with the theses being nailed on that door.

Elton then explains each thing as he then gets to it in his story, thereby balancing exposition and analysis with narrative.

As Elton explained in The Practice of History:

“[Reformation Europe] avoids the customary scene-setting at the start. Instead it goes straight in the story of Luther’s rebellion, which naturally calls for some description of the man; this introduces, as a matter of course, the points of theology over which he rebelled. Once the narrative is well under way, it demands some understanding of Luther’s success in the circumstances of time and place….”

And so on.

(I am aware of Elton’s many limitations, but his approach to narrative is thought-provoking.)

The other model is that of Conrad Russell, whose Ford Lectures on the causes of the English Civil War were an attempt to explain a sequence of seven “effects” – events and non-events – which led to the conflict:

“These, then, are our effects: the Bishops’ Wars, England’s defeat in the Bishops’ Wars, the failure to reach a settlement, the failure to dissolve or prorogue the Parliament, the choice of sides, the failure to negotiate, and the problem of the King’s diminished majesty. It is surely clear that nothing except Charles I can be likely to have been a cause of all seven of these […] The removal of any one of these seven things could have prevented the Civil War as we know it.”

What would be the comparable sequence of effects that would explain Brexit as we know it?

Would they be questions like: Why did the United Kingdom have a referendum on this question in 2016? What explains the result? What explains how May’s government interpreted the supposed mandate? What explains how the European Union prepared for the departure process?

The significance of Rishi Sunak’s Brexit Delivery Unit

8th August 2022

Here is a tweet and video to treasure:

A new Brexit delivery unit.

Reviewing every EU law on our statute book.

Starting in my first 100 days.

Let’s keep Brexit safe👇 #Ready4Rishi https://t.co/3cXn1rFhca pic.twitter.com/BjdRVJSvJz

— Rishi Sunak (@RishiSunak) August 8, 2022

But other than adding to the gaiety of the nation – or to its collective despair – this video and the proposal of a “Brexit Delivery Unit” are significant.

They signify a great deal about Brexit, and about what has not been done or understood by those in the governing party.

The United Kingdom joined what became the European Union in 1973 and it departed the European Union in 2020.

That is over 45 years of accumulated law and policy.

Brexit was never going to be “done” quickly – it may never be done at all, if Brexit is taken to mean that all that law and policy is to be disentangled and reconsidered.

And a great deal of that accumulated law and policy was shaped by the United Kingdom because it suited the United Kingdom.

Going through each regulation or other legal instrument derived from our membership of the European Union, and assessing whether divergence is both possible and beneficial, will take an extraordinary amount of time and effort.

And during a cost-of-living and energy price crisis, with increasing inflation and during a European war, you would think that the finite resources of the British state would have greater priorities than such a review.

There was also, of course, an actual government department dedicated to managing the exit and its implications:

https://twitter.com/LLocock/status/1556635543575752707

The department was abolished because Brexit had been “done”.

One gets the sense that those in favour of Brexit did not realise the legal and policy magnitude of the task ahead, just as they did not appreciate the economic and logistics consequences of departure.

That was all mere detail, it would seem.

For Brexit was not actually done to solve any law or policy problem or to address any economic or logistics concern.

To the extent there was a primary reason for Brexit it was to regain sovereignty – to “take back control”.

Well.

This is sovereignty, for what it is worth – there are over 45 years of accumulated law and policy from our membership of the European Union.

Two years after we have departed the European Union, the leading politicians in our governing party still do not know what to do with all that law and policy.

And so we have a leadership contender in 2022 announcing there will be a “delivery unit” for Brexit.

Which is an implicit admission that Brexit has not yet been done.

Indeed, Brexit has hardly begun.

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Boris Johnson did not “see off” Brenda Hale – so why did he say that he had?

On 25 July 2019 it was announced that Lady Hale would retire as President of the Supreme Court:

The retirement was to be on 10 January 2020.

This retirement was because of the operation of the mandatory retirement age for judges, which in the case of Lady Hale meant she had to retire by when she became 75 on 31 January 2020.

Lady Hale’s retirement by 31 January 2020 was thereby inevitable.

There was nothing she – or anyone else – could do about it.

This retirement announcement was made the day after a certain Boris Johnson, the now departing Prime Minister, took office.

Yesterday the now departing Prime Minister Boris Johnson said in the House of Commons:

“With iron determination we saw off Brenda Hale and we got Brexit done.”

But it was not Boris Johnson and his government that “saw off Brenda Hale” but the Judicial Pensions Act 1959 (as amended and unamended by subsequent legislation).

So what did he mean?

In terms of practical litigation, the statement also makes no sense.

The two key Brexit cases that reached the Supreme Court under the presidency of Brenda Hale – known as Miller 1 and Miller 2 – were cases which the government lost.

Indeed, Miller 2 – which held that Boris Johnson’s attempt to prorogue Parliament was unlawful – was when that unconstitutional antic was “seen off”.

So presumably he does not mean that, either.

What I suspect he means is that he got “Brexit done” despite the various litigation attempts to shape, delay or frustrate Brexit.

The two Miller cases were, strictly speaking, constitutional cases where the judiciary upheld the rights of the legislature against executive overreach.

But the more ardent supporters of Brexit did not – and still do not – see it that way.

And there were certainly other – less well conceived – legal cases which sought to stop Brexit, such as the “Article 50 challenge” cases.

If this suspicion is correct, then Brenda Hale is being used by Boris Johnson as a shorthand for all the legal challenges and obstructions which were made to Brexit, real or imagined.

Or, alternatively, Brenda Hale is being used as a shorthand for all those constitutional checks and balances that prevented Boris Johnson doing as he wished with the ship of state.

If so, these interpretations would accord with something else the Prime Minister said yesterday:

“The Leader of the Opposition and the deep state will prevail in their plot to haul us back into alignment with the EU as a prelude to our eventual return.”

Perhaps it should not be a surprise that Boris Johnson would use the phrase “deep state” at the despatch box – a term used by certain political conspiracy theorists.

Perhaps him using that terms is an indication of the deep state we are actually in.

If the above is correct, then the meaning of what Johnson said yesterday is that he saw off the “deep state” in its judicial manifestation and got Brexit done, though the “deep state” in its other manifestations are now seeking to reverse Brexit.

This is not a healthy frame of mind.

And if this thinking (or lack of thinking) becomes more widely shared, it does not bode well for a healthy polity.

Even if Boris Johnson was correct and that, in some meaningful way, he had “seen off” the President of the Supreme Court, then it would still be worrying that this was something any Prime Minister wanted to boast and gloat about.

The worst thing of all is Johnson’s apparent belief that it would be something to crow about if he had indeed been responsible for Lady Hale’s stepping down.

— Brendan Donnelly (@Brendandonn) July 18, 2022

Such gloating and boasting – well based or not – signifies a hyper-partisan approach to politics, the separation of powers and the rule of law.

As with other checks and balances in the constitution, Boris Johnson sees them as things to be defeated and for those defeats to be seen as personal triumphs.

Even though those who clap and cheer Boris Johnson in doing this would be the first to complain, from constitutional first principle, if an opposition politician such as Jeremy Corbyn or Keir Starmer did the same.

And imagine the sheer fury if any judge boasted and gloated that they had “seen off” Boris Johnson.

Boris Johnson’s conspiratorial hyper-partisanship is dangerous, and so it is a good thing that Boris Johnson is now going.

But just as Trumpism has continued in the United States even after Donald Trump’s departure from the presidency, the worry is that this Johnsonian frame of mind, with its deep state conspiracy-thinking and contempt for checks and balances, will linger.

For, if anything, that is what needs to be “seen off”.

***

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The resignation of Boris Johnson – and why that is not enough for good government to return

7th July 2022

Well.

This morning I was writing a Twitter thread on what would happen if all government minsters resigned.

For such a surreal thing to be of any practical concern, rather than for academic speculation, indicates that it has been an odd few days in the politics of the United Kingdom.

And now the current Prime Minister has announced his resignation.

He is not going immediately – but the process for a finding a new Conservative party leader will now start and it seems to me that Johnson cannot now do anything to stop that process.

Once that process produces a new leader, that leader will be invited to form a government by the Queen, and Johnson – by automatic operation of the constitution – will instantly cease to be Prime Minister.

He may go even sooner, with a ‘caretaker’ Prime Minister put in place until a new Conservative leader emerges.

Johnson may remain in office, but his announcement today means he has lost ultimate control of his political fate.

His resignation shows the operation of another constitutional rule – perhaps the most fundamental constitutional rule of all.

That rule is that Hubris is usually followed by Nemesis.

Wise politicians know this – and so they run tight ships, knowing that the pull of the tides can result in capsizing or being wrecked.

Less wise politicians assume their moment of great power will last forever.

Johnson – a successful electoral politician – was brought down not by any great policy issue or national crisis.

From Partygate and the Owen Paterson affair, he and his circle made unforced error after unforced error.

He and his circle believed that they could casually defy rules and conventions.

And so the ship of state became a ship of fools.

Johnson in December 2019 had the greatest prizes that the constitution of the United Kingdom can bestow on a Prime Minister.

He had won an emphatic general election victory – and so he had the “mandate” that meant he could translate his programme into practice without delays in the House of Lords.

And he had a substantial majority – of eighty – which meant he could get through the House of Commons legislation and revenue provisions without opposition.

He even had, with Covid and then Ukraine, two huge unifying issues for him to pose as a Churchillian leader.

Yet, two-and-a-half years later, he is resigning.

And the mandate and the majority have been wasted.

The latest Queen’s Speech was an embarrassing sequence of proposals, showing that the government had no direction.

And the one thing that Johnson and his government did do – Brexit with a withdrawal agreement – he was seeking to break.

Power without responsibility, as another Prime Minister once said in a different context.

Brexit was begat by the Conservative and Unionist Party.

The 2016 referendum was an exercise in party management, and it was from that egg that Brexit first emerged.

After 2016 the Conservative and Unionist Party said Brexit should mean Brexit, and they campaigned on that basis.

And under Johnson, the Conservative and Unionist Party “got Brexit done”.

But Brexit, being ungrateful, is destroying the Conservatives and dismantling the Union.

The revolution is devouring its begetters.

It is a political morality tale.

And so good bye then Boris Johnson, if not now but soon.

The curious thing is that he may not even be the worst of the post-2010 Prime Ministers.

It was David Cameron who risked the future of the country on a single turn of pitch-and-toss – and with no preparation for a Leave vote.

It was Theresa May who insisted that Brexit had to be done, at speed, with its ‘red lines’ that kept the United Kingdom outside the Single Market.

These macro political mistakes were profound.

And we now have the greatest political mess in living memory, if not modern history.

It is time for the excitement to die down, and for a return to the dull work of taking government seriously.

The ejection of the repugnant Johnson from the body politic is a necessary step towards such political good health – but it is not a sufficient one.

Let us hope that we have not left it too late for there to be a recovery.

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Our new national pastime is pretending that Single Market membership is not a good idea

5th July 2022

We have a new national pastime in the United Kingdom, to complement complaining about the weather.

That pastime is pretending that the United Kingdom should not rejoin the Single Market of the European Union, even though it is obvious that we should rejoin.

The completion of the Single Market, of course, was in its execution something which owed greatly to the British Conservative politicians of the day, notably Lord Cockfield and Margaret Thatcher.

An array of practical proposals were promoted by the United Kingdom to make it easier to buy and sell goods and services throughout the (then) European Economic Community.

The contribution to the completion of the Single Market is something about which that the United Kingdom generally can rightly feel proud.

But we now have to pretend we do not want to be members of it.

You will recall a sensible outburst from a current government-supporting MP Tobias Ellwood and the response to it from the very chair of the Commons’ Foreign Affairs Committee Tom Tugendhat:

https://twitter.com/TomTugendhat/status/1532445501563469824

This blog covered that exchange here.

Tugendhat is an ambitious politician – and so one explanation for him to not openly admitting Ellwood was right is that it would frustrate his political ambitions.

But.

It is not just Tugendhat.

Here is another ambitious politician, Keir Starmer, the Leader of the Opposition:

Starmer contends:

“Under Labour, Britain will not go back into the EU. We will not be joining the single market. We will not be joining a customs union.”

Here Starmer avoids mentioning Peppa Pig, but we get the following imagery instead:

“The second step we would take is to tear down unnecessary barriers. Outside of the single market and a customs union, we will not be able to deliver complete frictionless trade with the EU. But there are things we can do to make trade easier.

“Labour would extend that new veterinary agreement to cover all the UK, seeking to build on agreements and mechanisms already in place between the EU and other countries – benefiting our exporters at a stroke.

“There was a story on the news the other day about a ‘wet wipe island’ that has formed in the Thames. Made of fat and oil and household rubbish one metre deep and the size of two tennis courts, it is blocking the flow of the river and changing the shape of the riverbed.

“You couldn’t imagine a better metaphor for the Tory Brexit deal. They have created a hulking ‘fatberg’ of red tape and bureaucracy. One that is hampering the flow of British business. We will break that barrier down, unclog the arteries of our economy and allow trade to flourish once more.”

Fine words.

Yet describing a “hulking ‘fatberg’ of red tape and bureaucracy” is one thing, actually unclogging it another.

Starmer – like Theresa May before him – seems to think that a pick-and-mix approach will somehow work – with the European Union happily agreeing to discrete things that will perfectly suit the United Kingdom.

Perhaps that will work, but it is unlikely to do so.

The political truth is that from Northern Ireland to professional qualifications and veterinary services, there is a glaring solution to the problems.

Membership of the Single Market.

Tugendaht’s excuse is about the United Kingdom not wanting to be a rule-taker.

But.

We are a rule-taker – and one with added bureaucracy, just for us.

Of course, the European Union may not quickly allow the United Kingdom to again be part of the Single Market.

Would you, if you were the European Union?

Why would you chance having to deal with more of the United Kingdom’s psychodrama and collective political breakdown since 2016?

So, yes – membership of the Single Market may be currently unrealistic and unlikely.

Yet that is not an excuse for this continued pretence that it would not be in our interests.

The 2016 referendum question was silent on membership of the Single Market – and there are several European countries that are part of the Single Market and not members of the European Union.

It was only because of Theresa May’s extreme interpretation of the referendum result that the United Kingdom left the European Union on the terms that it did.

And so we all now have to pretend that membership of the very Single Market that the United Kingdom shaped and crafted is somehow a Bad Thing.

It is a silly position to be in.

And as this blog has previously averred, we will only “move on” from Brexit when we can have a mature discussion about the merits of sharing a Single Market with the regulatory super-power with its hundreds of millions of customers next door.

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That Chinese embassy tweet – on international obligations and moral hazard

4th July 2022

Here is a tweet from the Chinese Embassy in Ireland:

"2 years ago we made a promise to the Northern Ireland Protocol.

We are determined to break it." pic.twitter.com/lw9GegBZ6r

— Chinese Embassy in Ireland (@ChinaEmbIreland) July 1, 2022

Well.

What did the government of the United Kingdom expect?

This is not to say there is equivalence between the two situations – and many may say that a false equivalence is being made.

And this is not to say that the government of China – with its often horrific record on human rights, including in respect of the Uyghurs – are somehow the ‘good guys’ for tweeting in this way.

Certainly not.

But.

Again: what did the government of the United Kingdom expect?

The government’s reckless determination to legislate so that it can unilaterally breach the Northern Irish protocol was always going to provoke responses like this.

A government that openly and expressly wants to breach international law – especially its own recently negotiated agreements – cannot credibly insist on other nations complying with their international agreements.

Similarly, the sustained attack on ‘European’ human rights law by this government also makes it difficult for the United Kingdom to insist on international human rights standards by others.

(This is a point I make today in more detail over at Al Jazeera – where I post regularly putting forward a liberal constitutionalist perspective.)

The United Kingdom now also appears to be considering breaking World Trade Organisation rules on steel subsidies.

The United Kingdom government is showing the same lack of respect to international rules-based regimes as it does to domestic rules.

But the more we denounce or deride or disregard international agreements and instruments, the more we are creating a needless moral hazard.

It is all so daft – and so dangerous.

In another universe, where the United Kingdom has also departed the European Union, a far more prudent government than the one we have currently would have spent the last few years building up its credibility as a party to international agreements and instruments.

After all, new international agreements are what the United Kingdom will need to rely on, now that it all alone on the world stage.

(Of course, such a prudent government may not have left the European Union in the first place.)

But instead of doing everything we can to build up our credibility as a potential partner to international agreements, we seem to have done everything we can to trash our international reputation as a serious party to international agreements.

And this was the worst possible time for us to convey such an insolent – almost infantile – attitude.

This is why we are now being trolled by the Chinese on social media.

And the United Kingdom government only has itself to blame.

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The need for evidence and the Northern Irish Protocol Bill – the background to a rather interesting parliamentary amendment

28th June 2022

One of the most fundamental distinctions in legal practice is that between law and evidence.

Anybody can assert “[X] is guilty of murder” or “[Y] had broken a contract” but mere assertion is not enough for a court.

A court will need to see and assess the evidence that [X] is guilty of murder or [Y] had broken a contract.

And it is only when the evidence is applied to the law, and the law applied to the evidence, that a court will hold (or not hold) [X] to be a murderer or [Y] to be in breach of contract.

Mere assertion is not enough.

Yesterday in the House of Commons the Foreign Secretary asserted that that the proposed Northern Irish Protocol Bill was ‘necessary’.

The asserted ‘necessity’ justified, the minister claimed, the legislation being brought forward.

Legislation that on the face of it is a breach of international law – and can only only be saved from being such a breach by the doctrine of ‘necessity’.

But.

It is one thing to assert that a thing is the case, and another to show that it is the case.

And so it is with the use of “necessity” by this government to justify bringing forward this otherwise law-breaking bill.

It is not enough for the government to tell us it is “necessary” – they need to show it.

As any competent screenwriter would tell you: show, don’t tell.

One government backbencher, Sir Bob Neill, asked about the evidence which supported the government’s position:

“To return to the legal point, she will know that the application of the doctrine of necessity requires both the legal tests to be met and the evidential base to be there, because it is largely fact-specific to show whether those tests have been met. I know that the Government have been working hard to assemble that evidential base, but can she tell us when it will be available to the House so that we can form a judgment as to whether those legal tests are met and, therefore, proportionality and necessity are met? It would be helpful to have that before we come to a conclusion on the Bill.”

NB the number of times that @SuellaBraverman’s hapless “legal position” relies on claims that the current government has “assessed” without once explaining what that “assessment” is based on.

— George Peretz KC 🇺🇦 (@GeorgePeretzKC) June 27, 2022

The Foreign Secretary’s response indicated she had missed the point:

“I thank my hon. Friend for that point. There are clearly very severe issues in Northern Ireland, including the fact that its institutions are not up and running, which mean that the UK has to act and cannot allow the situation to drift. I do not think that we have heard what the Opposition’s alternative would be, apart from simply hoping that the EU might suddenly negotiate or come up with a new outcome.”

It is not enough to ask the opposition about what they will do – it is for the government to make out the necessity.

And it is not enough for her to assert that there are “clearly very severe issues” – and as this blog has said before many times, anything described by a politician as “clear” tends not to be.

Neill also asked this question of a former Lord Chancellor, Robert Buckland:

“He refers to the doctrine of necessity and the tests that must be met. I think he will agree that, whether it be imminent or emerging, there has to be evidence that the high threshold is met. Does he think that, in common with the approach adopted in the United Kingdom Internal Market Bill, if there is evidence so pressing as to justify a departure from an international agreement, with the risks that that involves, it should be brought back to this place for the House to decide in a vote? As was then suggested in that Bill, on the evidence available, there should be a parliamentary lock on the use of that important step.”

The former Lord Chancellor also did not have a clue:

“My point is simply that this is not a matter of law or a question of legality. There is a respectable argument that can be deployed by the British Government to assert necessity, but this is not about the law; it is about the evidence that the Government will need to marshal to demonstrate that point. The Government’s responsibility is to be a good steward of the Good Friday/Belfast agreement.”

And the former Lord Chancellor also said:

“…a lot has been said about necessity, as if it requires imminent peril or an immediate threat facing us just outside the door. Nobody is saying that we face that, but necessity in this context does not require that degree of imminence; it requires a degree of real threat, and growing evidence of a real threat to our essential interests.

“I would argue that there is such growing evidence. Clearly north-south is entirely unaffected—the respect we are showing for the single market is clear—but there is a growing problem when it comes to east-west.”

Buckland asserts there is “growing evidence” but – other than broad generalisations – he cannot point to any.

This is not impressive.

Neill’s comment that there are those in government putting together an evidence base for saying that the bill is “necessary” may be well-informed or it may be, well, charitable.

But it can only be right that the evidence for necessity be made available to Members of Parliament before this bill is passed.

Neill has now put down an amendment for the next stage of the bill’s passage which will require there to be a dedicated vote in the House of Commons before the powers in the bill can be used.

This would mean that a minister would have to come to he House of Commons to make a positive and specific case of necessity before the powers in the bill could be replied upon on the basis of “necessity”.

It would be a wise provision – and there cannot be a good argument against it in the circumstances (though there will be plenty of bad ones).

Strangely, the strongest criticism of the bill in yesterday’s debate came from Theresa May, in a speech that nobody following this blog could have put better – read it in full here.
Of course, this is the same Theresa May whose fateful decisions after the referendum to rule out membership of the single market and customs union led directly to the current botched Brexit.

(And, yes, it it tempting to keep re-fighting the battles of 2016, like a military re-enactment society.)

But here May is spot-on.

It is disappointing, of course, that Neill, May and other government backbenchers did not vote against the principle of the bill at the reading yesterday.

This, however, may owe to the logistics of the exercise of amending the bill at the next stage – they are keeping their various powders dry.

What is obvious, however, is that the government cannot – as of yet – make out the evidence base for “necessity”.

If the Neill amendment is adopted, ministers may be required to put forward their evidence base, if they have one.

And if they cannot put forward the evidence base, then ministers may not be able to rely on necessity.

Their bluff would be called.

And sometimes it is, well, necessary to call the bluff of ministers.

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