Over at the Financial Times I have done a video guided tour of the Northern Irish Protocol Bill, famed around the question of whether it is a breach of international law.
Let us start at the beginning, for it is a very good place to start.
And at the beginning of the Northern Irish Protocol Bill, just after the title, purposes, and preamble, is clause 1.
(A ‘clause’ is what becomes a ‘section’ by legal magic when a Bill becomes an Act.)
Clause 1 provides:
There will be time to look at the other provisions of this Bill, but let us take a moment to look at clause 1.
The content of the clause is not part of the title, purposes or preamble to the Bill.
No, we can check, and it has a clause number.
Clause 1 is intended to be part of statute, to have the force of primary legislation.
But.
It does not seem to be law.
I do not know what it is.
It is called ‘Introduction’ – as if it was part of some Penguin Classic.
But the the title, purposes and preamble are usually all the ‘introduction’ a statute needs.
For example. the purposes tell us that the Bill is to make “provision about the effect in domestic law of the Protocol on Ireland/ Northern Ireland in the EU withdrawal agreement, about other domestic law in subject areas dealt with by the Protocol and for connected purposes.”
That will tell a court what the Act will be for, if a court needs an introductory aid to construction or interpretation of any of the provisions.
The provisions of this clause 1 do not create obligations, or confer any discretions or rights.
What are they doing?
Are they capable of legal effect, in and of themselves?
Are they intended to have legal effect, in and of themselves?
Are they intended to be aids to construction or interpretation of any of other provisions, in the case of ambiguity or doubt?
If so, how?
What are they supposed to be?
They read more like a policy statement or explanatory note for the Bill – but these are separate documents that the government has also published.
If the rest of the Bill needs a provision like this so as to “make” things “clear” then the drafting of the other provisions needs to be done again.
Perhaps clause 1 is just to get “Union with Ireland Act 1800 and the Act of Union (Ireland) 1800” somehow onto the face of the Bill – indeed on to page one – so as to placate unionists?
And, applying the rule against surplusage – that courts give effect, if possible, to every clause and word of a statute so that no clause is rendered superfluous, void, or insignificant (definition taken from here) – what actual difference does clause 1 make to the rest of the Bill?
If clause 1 were – say – to be deleted, what difference would it make to the legal effect of the Bill once enacted?
The fear must be that the creeping use of legislation as a form of political propaganda – press releases by other means – has now infected the very statutory provisions themselves.
It is difficult to imagine what the parliamentary drafter intends by clause 1 as to its legal effect.
Perhaps this has happened with other Bills – and, if so, please leave comments and links below with examples.
Perhaps it a commonplace, and I have missed it in other legislation.
But it does not seem right.
And it perhaps suggests that the government does not sincerely intend to place this Bill on the statute book, and that the Bill as a whole – and not just clause 1 – is merely for political consumption.
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This Bill is so the government can breach (or “not perform”) its obligations under the Northern Irish Protocol.
The government has also published not the legal advice in support of the Bill, but their legal position.
But it is not even a legal position.
It is a lack of a legal position.
As a legal justification placed into the public domain this is even weaker than taking a lockdown journey to Barnard Castle to test one’s eyesight.
The government is legally even weaker than many legal commentators thought.
We were expecting some clever whizz-bang argument, desperate but perhaps just about plausible.
But we have got this instead.
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Let us look why this is so weak to the point of non-existent.
The government’s “position” is as follows.
Step one – the government sets out what it sees as “necessity”.
“The doctrine of necessity provides a clear basis in international law to justify the non-performance of international obligations under certain exceptional and limited conditions. It has been accepted by the International Court of Justice and is reflected in the International Law Commission’s 2001 Articles on State Responsibility, which successive UK governments have regarded as generally reflective of customary international law. By way of summary, the term ‘necessity’ is used in international law to lawfully justify situations where the only way a State can safeguard an essential interest is the non-performance of another international obligation.”
Step two – the government sets out that “necessity” means it has “no other way” than to put forward this legislation:
“… the strain that the arrangements under the Protocol are placing on institutions in Northern Ireland, and more generally on socio-political conditions, has reached the point where the Government has no other way of safeguarding the essential interests at stake than through the adoption of the legislative solution that is being proposed. There is, therefore, clear evidence of a state of necessity to which the Government must respond to.”
Step three – the government ties the two steps together to assert that “in light of the state of necessity” the “non-performance” (ie breaching) of its obligations under the Northern Irish Protocol would be justified under international law:
“The Government recognises that necessity can only exceptionally be invoked to lawfully justify non-performance of international obligations. This is a genuinely exceptional situation, and it is only in the challenging, complex and unique circumstances of Northern Ireland, that the Government has, reluctantly, decided to introduce legislative measures which, on entry into force, envisage the nonperformance of certain obligations. It is the Government’s position that in light of the state of necessity, any such non-performance of its obligations contained in the Withdrawal Agreement and/or the Protocol as a result of the planned legislative measures would be justified as a matter of international law. This justification lasts as long as the underlying reasons for the state of necessity are present. The current assessment is that this situation and its causes will persist into the medium to long term.”
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Ah, the bare legal doctrine of necessity.
The general issue with “necessity” at law is that any of us can at any time assert that it is “necessary” to breach an obligation.
This means that, in legal practice, “necessity” is made very difficult, if not impossible, to rely on as a defence for breaking any obligation.
In the domestic law of England and Wales, for example, every law student is introduced to the singular facts of the 1884 case of R v Dudley and Stephens to show how limited the defence of necessity is to a criminal charge.
And now, in 2022, “necessity” is being invoked in respect of a different type of shipwreck: the government’s post-Brexit policy.
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In international law, the principle of “necessity” is similarly limited in its scope.
Here is Lord Anderson QC, whose tweets should be read carefully:
The State must also establish, as the government accepts, that it has not substantially contributed to the situation of necessity. pic.twitter.com/mAelH3nv7M
These citations give an indication of the rare and extreme conditions that must apply before the defence of necessity can be accepted. pic.twitter.com/15sLUm3Luj
– the State’s act is to safeguard an essential interest against a peril;
– the peril shall be grave and imminent;
– the course of action followed shall be the only way available; and
– no other essential interest shall be seriously impaired as a result of the breach.
The digest also states that the excuse is unavailable where the State has (substantially) contributed to the situation of necessity.
These are high hurdles to meet.
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But there is more.
The parties to the Northern Irish Protocol – the United Kingdom and the European Union – have already expressly agreed a scheme for dealing with any problems under the protocol.
This mechanism is set out in Article 16:
And this annex to Article 16:
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The United Kingdom and the European Union contemplated the possibility of problems and agreed a way of dealing with them, which would enable parts of the protocol if – ahem – necessary to be temporarily disapplied.
It makes no sense – whatsoever – for the government to race to seeking to rely on the principle of “necessity” under international law for breaching the protocol without triggering the Article 16 process first.
As one tweeter said:
I am confused. The Protocol represents such a threat to the stability of the UK that it is legal to breach the international treaty which created it, yet the threat is not serious enough to trigger the clause within the treaty specifically to deal with such a threat, Article 16?
— Dr. Bendor Grosvenor 🇺🇦 (@arthistorynews) June 13, 2022
There is no answer to this point – and there can be no answer to this point:
There are no possible circumstances where the United Kingdom can resort to the the principle of “necessity” under international law without going through the Article 16 process first.
And the government – despite many threats – has not triggered the Article 16 process.
The “position” published today even admits the government believes that the Article 16 were met:
“In July 2021, however, the Government assessed in the Command Paper that, as a result of both diversion of trade and serious societal and economic difficulties occasioned by the Protocol, the conditions for the exercise of the rights provided for under Article 16 of the Protocol were already met.”
But the government then did nothing under Article 16 on that basis.
For the government to not trigger Article 16 instead of resorting to the the principle of “necessity” under international law is beyond rational comprehension.
Wookies coming from Endor makes more sense.
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And there is even more.
So “necessary” is this proposal that the legislation will take at least months, if not a year to pass into statute.
Such a leisurely timeline does not indicate urgency – and it does not show that the problem is “grave and imminent”.
It could be a long time before these unilateral changes to the protocol come into effect:
• Gov plans to do 2nd reading before six-week summer recess • Lords to sledgehammer it • Ministers won’t use powers until new systems (green/red lanes, dual-reg system) are ready to go
Putting what is said today together with this blog’s recent posts (here and here) on the strange way that the government is claiming to have legal cover for this proposal, it seems that the First Treasury Counsel was asked to accept as an assumption that it was “necessary” for the United Kingdom to break its international obligations.
The so-called Treasury Devil then questioned that assumption, and he was correct to do so.
This “legal position” does not provide any legal cover.
It makes no sense, even on its own terms.
It is a contrivance.
As my University of Birmingham colleague Dr Adrian Hunt avers:
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The reality is that the problems which the government mention were entirely foreseeable when they negotiated and signed the protocol, and were indeed foreseen.
The government then just wanted to “get Brexit done” – everything else was detail.
And the problems which have arisen are the main reason the protocol included Article 16.
So not only were the problems foreseen, a solution was also envisaged.
It is difficult to conceive of a weaker basis for the government of the United Kingdom to assert “necessity” as a breach of international obligations.
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It was not published until the evening, and it already has had over 20,000 hits.
And it has been promoted by a former Irish ambassador to the United Kingdom and the European Union, one of Ireland’s leading journalists, and a Conservative former Lord Chancellor – as well as by the reporters and member of parliament whose work I used for the post.
Thank you to all of you who read and shared the post, and a special thank you to those of you whose support means I can free up time to put together posts like that (which in that instance took three days).
Here is a follow-up to the post which has come out from the subsequent discussion.
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It would appear that one function of the Eadie ‘advice‘ is so ministers can try to convince unsure backbenchers.
This possibility has been put forward by the Conservative former Lord Chancellor I mentioned, David Gauke:
Very good piece from @davidallengreen on the Govt's curious approach to the advice of Sir James Eadie QC on the Northern Ireland Protocol legislation. One point to add is that the Govt has been telling MPs that Eadie had signed off the Bill (see https://t.co/EdAJXANdQN). https://t.co/Z9O7Kx7YAM
“The sidelining of Eadie is highly irregular, especially as some MPs had previously been reassured that Eadie had opined on the legislation (he has, but not on the international law aspects).”
This is significant in two ways.
First, the government is now reduced to lying to its own backbenchers.
And second, if this is correct then it also means that government backbenchers simply do not trust the Attorney General to be getting the law right, and want the comfort of a further opinion.
If so, this shows the further fall in the credibility of the Attorney General.
You will recall that during the Brexit debates, the then Attorney General Geoffrey Cox – a successful barrister – took a leading role in seeking to convince backbenchers about the legality of the then proposed deal:
We now know that this advice was not enough to convince enough backbenchers to support then Prime Minister Theresa May’s deal.
But the point is that members of parliament did not then question the credibility of the Attorney General in being the source of legal advice, just that they did not like the import of what he and May were saying.
The current Attorney General has had less of an opportunity to develop a career in private practice and so is a far more junior lawyer than Cox.
And although she is understood to have commissioned advice from public international lawyers (lawyers who specialise in treaties and other international agreements), the fact that she is advising that the proposals are legal carries little or no weight with government members of parliament.
So, if Gauke is correct, there has been a decline – perhaps a collapse – in how seriously the office of Attorney General is regarded politically.
And so members of parliament are having to be assured that the Treasury Devil is also on side:
Don't think they'd have shown the Eadie advice to backbenchers (which would've raised lots of questions). More "don't worry, Eadie's looked at it" (which is the truth but not the whole truth).
This may explain the possible compromise I mentioned yesterday, where Eadie was asked to give an advice based on assumptions that the advice commissioned by the Attorney General was correct.
The backbenchers would then presumably not be told about the assumptions.
The Devil’s name would be being taken in vain.
And so the leak of the actual advice, which showed Eadie’s doubts about the validity of the Attorney-General’s advice, undermined this underhanded ploy.
The cover was blown from the legal cover.
It would therefore appear that the government was seeking to mislead its very own backbenchers over the legality of the proposals for the Northern Irish Protocol.
That is an extraordinary situation for the government to be getting into, and it does not bode well for the legal robustness of what is being proposed.
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Of course, there are always odd and worrying things happening – increasingly in the area of law and policy.
But this is a rather odd and very worrying thing.
It is the curious incident of the government’s legal advice on its forthcoming proposal for the Northern Irish Protocol.
But to understand why what is happening is just so very odd and very worrying, we need to go back in time and also to understand how legal advice works in government.
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The current government of the United Kingdom does not like the Northern Irish Protocol of the Brexit withdrawal agreement.
This is itself odd, as it is the same government, with the very same Prime Minister, that changed the previous policy on this, negotiated and signed the agreement, sought and obtained a general election mandate for the agreement, and pushed it through into domestic legislation.
The current government, and our Prime Minister Boris Johnson, could not have done more to go from scratch in putting the Northern Irish Protocol in place.
But they have come now to regret this once “oven-ready” agreement.
And they would like it to change.
The problem, of course, is that it takes all parties to an agreement to change an agreement – and the counter-party here is the European Union, and it does not want to change the agreement.
So what is the United Kingdom government to do?
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The government tried – remarkably – to break the law,
It is astonishing to type this, and it should be astonishing for you to read this, but that is what the government sought to do, openly and expressly.
The breach was framed – you may remember – as breaking law “in a very specific and limited way”.
The Advocate General – a government law officer – resigned, as did the government’s own most senior legal official, the Treasury Solicitor.
They were right to do so – it was an extraordinary and preposterous thing for the government to do: an outrage, constitutionally and otherwise.
The government did not go ahead with this ploy.
The government learned its lesson.
The lesson was never to openly and expressly state that you were intending to break the law, either “in a very specific and limited way” or otherwise.
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Since that botched approach the government has been very careful to say that what it is proposing does not break the law.
What the government actually wants to do, in substance, has not changed.
But now it wants to have legal cover for what it wants to do: to be able to say that a thing is lawful and not unlawful.
And under that cover, you can see through the fabric ever more desperate contortions and distortions.
Within the government there will be those insisting that there has to be “sign off” on the legalities of what is being proposed.
It is similar in this way to the attempts within government to get legal cover for the Iraq invasion, which led to the resignation of the senior government lawyer Elizabeth Wilmshurst – her resignation letter is here.
You may recall how the legal advice within government was then being chopped and changed until the advice was what the then Prime Minister Tony Blair and Foreign Secretary Jack Straw were happy with and also satisfied service chiefs and senior civil servants who wanted legal sign-off.
What happened behind the scenes came out at the Iraq Inquiry:
The Chilcot Inquiry concluded that the “circumstances in which it was ultimately decided that there was a legal basis for UK participation were far from satisfactory”.
You will see from the BBC report above, the government was shopping around for the legal advice that it wanted – because it did not like the advice of the responsible government lawyer.
In the end the then Attorney-General Lord Goldsmith managed to provide (that is, concoct) the advice the government wanted, instead of the advice of the relevant government lawyer.
And although that was a Labour government, as opposed to the current Conservative government, there was an important lesson learned and committed to institutional memory.
The lesson learned was that it is better not to shop around for new, alternative advice if you can say that you have not had adverse advice in the first place.
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Now let me introduce you to the Devil.
That is, the “Treasury Devil” – the nickname for First Treasury Counsel.
In essence, the Treasury Devil is an external senior barrister who is activated when the government has a Really Serious Legal Problem.
Usually, this means going to court to represent the government in the most difficult and serious legal challenges.
Or it can mean advising in advance when a difficult and serious legal challenge is foreseeable.
The Treasury Devil is the legal cross between Winston Wolf and Mycroft Holmes.
He or she solves the government’s trickiest legal problems, or sits there and advises the government how best to deal with those problems in advance.
Some of the greatest judges were once Treasury Devils: Lord Slynn, Lord Woolf and Sir John Laws, as well as one member of the current Supreme Court, Lord Sales.
(I happen to be a former government lawyer, and I know of one instance where an impending legal problem was put before the Treasury Devil well before there was any litigation.)
Referring such a matter to the Treasury Devil is not routine – it is exceptional.
But it is a thing (despite what some other commentators asserted).
Indeed, when it is as plain as a pikestaff that something important will be challenged – perhaps all the way to the Supreme Court – then it is a very prudent thing.
That sometimes the Devil will be consulted on potential legislation has been affirmed by a well-regarded expert on legislation:
The current Treasury Devil is Sir James Eadie.
And you can see some of this Devil’s handiwork here.
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Now, back to the Northern Irish Protocol.
Recently, a post on this blog set out an interesting shift in rhetoric from the current Foreign Secretary:
The Foreign Secretary had said:
“That is why I am announcing our intention to introduce legislation in the coming weeks to make changes to the Protocol.
“Our preference remains a negotiated solution with the EU.
“In parallel with the legislation being introduced, we remain open to further talks if we can achieve the same outcome through negotiated settlement. […]
“The Government is clear that proceeding with the Bill is consistent with our obligations in international law – and in support of our prior obligations in the Belfast Good Friday Agreement.”
In other words, the government was now to ‘comply’ with international law.
Applying the first of the lessons set out above, the government was now going to be lawful, not unlawful.
They had found a way to call what they wanted to do lawful.
“The attorney-general has approved the scrapping of large parts of the Northern Ireland Brexit deal amid mounting cabinet divisions over the plan, The Times has been told.
“Suella Braverman has advised that legislation to override the Northern Ireland protocol would be legal because the EU’s implementation of it is “disproportionate and unreasonable”.
“In evidence accompanying her findings, Braverman says that the EU is undermining the Good Friday agreement by creating a trade barrier in the Irish Sea and fuelling civil unrest.
“Her submission argues that the agreement has “primordial significance” and is more important than the protocol. “There’s mountains of evidence that there’s a trade barrier down the middle of our country,” said a government source. “Suella has argued that trade is being diverted.”
“Her submission also details “societal unrest” and cites hoax bomb attacks, including one targeting Simon Coveney, the Irish foreign minister. “There are increasing signs of violence in Northern Ireland,” the source said. “That can’t be allowed to carry on.”
Suella Braverman, the Lord Goldsmith of her generation, had found a way.
Some of the vocabulary in the Times report is not strictly accurate – what is being described is reasoning and advice, not evidence or submissions – but it would appear that the newspaper had sight of the advice.
Internal, legally privileged advice had been leaked.
The desired legal advice was now in place, and the government could now do what it wanted to do anyway with the Northern Irish Protocol.
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But.
There was one thing which could ruin this exercise in political and legal expediency.
Applying the second lesson set out above, the government needed this to be the only legal advice in town.
Whitehall was not going to be big enough for more than one advice, given the speed with which the government wanted to proceed.
A second opinion – usually helpful – would be most unhelpful to the government.
There would not be enough time to do what Goldsmith had once managed to do with the unwelcome foreign office advice.
Like the final scenes of a situation comedy, those in government would be desperate that somebody else was not asked certain questions.
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Now we come to this week’s news.
Again internal government legal correspondence and advice has somehow found itself into the public domain.
More internal, legally privileged advice had been leaked.
.@politicshome understands, as @SamCoatesSky reports, that First Treasury Counsel James Eadie was *not* consulted by government on the legality of the Protocol legislation
Eadie would be expected to be asked for his opinion on such a high-profile & consequential bill – v unusual
Payne (a fine political journalist but not a legal specialist) may not be entirely correct here – for as set out above, the Devil is not consulted routinely on legislation.
But if something big was afoot, it would not be unusual for somebody somewhere in senior government to suggest that this is a matter for First Treasury Counsel.
“Correspondence seen by PoliticsHome has cast doubt over the government’s argument that its plan to override parts of the post-Brexit treaty without an agreement with the European Union would not breach international law.
[…]
“The government insists that this would not break international law. Suella Braverman, the attorney general, approved the plan having concluded that it was legal, The Times reported last month. When unveiling the plan to parliament, Foreign Secretary Liz Truss said “we are very clear that this is legal in international law and we will be setting out our legal position in due course”.
“But in the leaked correspondence, a senior figure advising the government on legal matters says they hold the view that it cannot be “credibly” argued on legal grounds there is currently no alternative to unilaterally disapplying the treaty, and that it is “very difficult” for the ministers to make that case.
“They add they find that position “more convincing” than the view put forward by Braverman and others that the government was on solid legal footing in pursuing unilateral steps.”
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Sam Coates, another fine political journalist, reported at Sky:
“…Sky News is told that the First Treasury Counsel, the government’s independent barrister on nationally important legal issues, has not been consulted on the question of whether the plans to overhaul the Northern Ireland Protocol will break international law.
“He is nevertheless understood to have indicated he believes it will be very hard for the UK to argue it is not breaching international law if it goes ahead with some of the moves under consideration.”
“Last night Sky News reported that the First Treasury Counsel, the government’s independent barrister on nationally important legal issues, was not asked to give his opinion on whether imminent plans to overhaul the Northern Ireland Protocol would break international law.
“Sir James Eadie was consulted about the forthcoming legislation.
“However – in a highly unusual and possibly unprecedented move – he was asked not to give a specific legal opinion on whether the plan would breach international law.
“For the first time we can set out in detail what Sir James said.
“Eadie starts by confirming that the government has received advice from an array of other lawyers about the international legal issue raised by the planned protocol legislation.
“He goes on to say that he has been asked only to “assume” there is a respectable legal basis on which to support the arguments made by the other lawyers.
“He says he is happy to comply with this request – “I do so,” he writes – but then adds “I am not asked to opine on the merits of those views”.
“Sky News understands it is extremely rare for the First Treasury Counsel not to be consulted on an issue such as this, and be directed by government to rely on the opinion of others.
“However Eadie’s agreement to do as directed – and rely on the view of other lawyers – allows the government to say he was consulted more generally and is on board with the plan.
“Inconveniently, however, he is understood to have then volunteered a view in his submission: that he found the argument of one particular lawyer advising government “considerably easier to follow and more convincing”.
“The lawyer he cites says that it would be “very difficult” for the UK to argue it is not “breaching international law”.”
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What appears to have happened is as follows: the government got its convenient advice from the current Attorney General; somebody insisted that this still had to be referred to First Treasury Counsel; a clever compromise was reached where it would be referred to Eadie on the basis of certain assumptions, so as not to undermine the convenient legal advice; and the Devil, while accepting those assumptions, provided an unhelpful view on the merits of those assumptions.
This is hilarious.
And it is now a mess.
One significant issue here is not that the Devil was not formally consulted – it is rare for First Treasury Counsel to be involved in pending legislation.
It would not normally be a snub.
The significant point is that for Eadie’s name and position to be even mentioned in this leaked correspondence can only mean there is almighty row going on in government over the legality of these proposals.
Somebody senior internally is insisting that First Treasury Counsel be consulted, and that the Attorney General’s convenient advice cannot be accepted on the nod.
And not only has somebody senior insisted on this – they are so senior (or important) that they have partially got their way, and what looks like compromise instructions were then given for the First Treasury Counsel for advice.
We now have the extraordinary situation that there is convenient legal advice and also very serious grounds for doubting that advice (though not formally competing advice, because of the assumptions).
This is the worst of both worlds – for at least in the Goldsmith/Wood situation above, there could be and was a decision to prioritise one advice over another.
Here there is only one advice, and it is dubious – with no less than the Treasury Devil saying so.
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And now, there has even been an urgent question in Parliament.
Also confirmed:
Urgent question from @amcarmichaelMP: "To ask the Minister for the Cabinet Office if he will make a statement on requests made to the First Treasury Counsel to assess government proposals to override the Northern Ireland Protocol."
— UK House of Commons (@HouseofCommons) June 9, 2022
The government is hiding behind a convention of legal privilege that it has already undermined by giving incomplete and inaccurate information to MPs in order to assert that its position is legal. The legal advice must be published, in full. https://t.co/E3Cs8lrbKI
— Alistair Carmichael MP (@amcarmichaelMP) June 9, 2022
The government minister said – with a straight face – that despite the several leaks in this matter, the government does not by convention usually disclose legal advice.
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What we have are leaks of the Attorney General’s advice and leaks of the seeming compromise advice from the Treasury Devil, which casts serious and significant doubt on the Attorney General’s advice.
The supposed legal cover has, well, had its cover blown.
The government has now placed itself in a difficult position – by its own shenanigans.
It must have seemed such a good idea to get legal cover in this way – but it has now created a situation where somebody is in a position to leak legally privileged advice indicating there is an utter mess internally.
This is where a misconceived, seemingly clever way of getting legal cover gets you.
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The true political problem here isn’t that First Treasury Counsel was not consulted in respect of the new proposals for the Northern Irish Protocol.
The problem is that the government tried to go out of its way not to consult First Treasury Counsel when somebody with sufficient clout insisted on it, and then the government only did so with “assumptions” so as to limit the scope of the advice.
And now it seems the government wants to suppress and disregard the First Treasury Counsel’s serious doubts as to legality.
This is an extraordinary situation.
When news broke about the Eadie advice, I tweeted that this was an extraordinary and potentially highly significant and worrying development.
Some wrongly took the development to which I referred to be that Eadie had not been consulted.
No.
The extraordinary and potentially highly significant and worrying development is that Eadie was involved at all, was being mentioned in internal emails as an alternative source of advice, and that we knew any of this about it.
That there are serious rows inside government, botched attempts to get legal cover, and frequent leaking of privileged advice is very worrying indeed.
Something odd is happening.
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Thank you for reading – posts like this take a lot of time (this took three days) and substantial opportunity cost, so please support this free-to-read independent source of commentary.
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Dominic Raab, the Lord High Chancellor and Deputy Prime Minister, was on the media this morning after yesterday’s calamitous confidence vote.
A vote which – politically – was the worst possible political outcome for the current Prime Minister, though the possible constitutional (as distinct from political) crisis of which I warned was averted.
Raab was asked about whether the party rules could be changed so as to allow a further such vote within the next year.
His reply, with a straight face, was:
On changing 1922 rules to allow another vote of confidence on the PM within a year @DominicRaab tells @BBCBreakfast "fiddling with the rules when you don't like the result is a bad look"
This lack of political self-awareness is priceless.
For changing – or seeking to change – the rules because of unwanted outcomes is what this government does again and again.
And again.
Indeed, looking from the outside, it is the nearest this government has got to an organising principle.
If there is such a thing as ‘Johnsonism’ it is a description of this ongoing push to remove the checks and balances, and to change or neuter the rules and processes, that stop this government from doing whatever it likes.
In Raab’s own department – the Ministry of Justice – there is a constant move towards changing judicial review rules and human rights law because of a (perceived) dislike of what judges are deciding.
Indeed, this is the very point of Raab’s rather pathetic proposal for a so-called “Bill of Rights”.
There are other examples from this government:
…and like rewriting the Commons rule book after Owen Paterson repeatedly broke lobbying rules
…and like watering down the rules so MPs like Johnson don’t lose their jobs when they breach Ministerial Code
The politics of the Northern Irish Protocol is, at bottom, about how the current government wishes to resile from the agreement that it had negotiated and signed.
The current prime minister Boris Johnson and his ministers do not want to be held to the rules that came from lengthy negotiation and compromises.
To echo Raab, they do not like the result.
And so they want to fiddle around with those rules – an Internal Market Bill here, a threat to trigger Article 16 there, an Attorney General’s advice in the middle.
Constant fiddling – and just because they do not like the result.
Once you realise that this is what this government does – not least because it cannot think of doing anything more substantial – you see this in almost every area of policy.
But there is one thing that the Lord High Chancellor is correct about.
It is not a good look.
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The first is that the United Kingdom has little manufacturing industry and few natural resources.
Many of the manufactured goods we buy are from abroad, as is much of the energy we consume.
The second is that non-tariff barriers impede any international trade in services.
This means that if there are, for example, shared standards and harmonised recognition schemes then selling services abroad will be easier than if there are not such non-tariff barriers.
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Bearing these propositions in mind, let us now look at a tweet from Tom Tugendhat, the chair of the House of Commons select committee and seen by many as the most sensible possible alternative Prime Minister in the current governing party.
Tugendhat is criticising a proposal from another Conservative politician, Tobias Ellwood:
Tobias is wrong. The Single Market puts the EU in charge: – EU rules – open borders – no new trade deals
We need a deal British people control not foreign laws with no say.
Let’s plan for the future and stop looking back. This decision is made. https://t.co/4mil6BXWNx
Tugendhat’s tweet is worth thinking about, for it is significant.
One obvious point is that his tweet confuses the Single Market with the Common Commercial Policy, that is the European Union’s common trade policy.
They are distinct things – and it is possible to be part of the Single Market and still have an independent trade policy (and thereby ‘new trade deals’) – as the example of Norway demonstrates.
Another point about Tugendhat’s tweet is that it frames shared standards and harmonised recognition scheme as “EU laws” in respect of which the “British people” will have “no say”.
From a commercial – as opposed to a political – perspective those seeking to trade with our European Union neighbours still have to comply with Single Market rules over which they have “no say”.
It is just that such exporters now have added layers of bureaucracy – non-tariff barriers – to deal with so as to show that they comply with Single Market rules.
This is because the purpose of the Single Market was to remove such impediments and so, by now being outside of the Single Market, such impediments are restored.
The Single Market. of course, was driven through (in its current form) in the late 1980s by then Prime Minister Margaret Thatcher and the Conservative European Commissioner Lord Cockfield.
The Single Market may be the greatest achievement of Thatcher and her governments, at least in respect of what then became the European Union.
At a stroke, any trader in a member state could trade in another member state because of shared standards and harmonised recognition schemes.
Again, from a commercial perspective, the important thing about shared standards and harmonised recognition schemes is not their political origin, but that they exist.
And other European countries that are not members of the European Union are part of the Single Market.
There is no absolute reason why a post-Brexit United Kingdom could not also be part of the Single Market.
*
But.
There is the question of influence and control.
Yet what is often missing in discussions about the future relationship of the United Kingdom with the European Union, is that shared standards and harmonised recognition schemes are necessarily outside the unilateral, absolute control of one ‘side’.
It would be completely open to the European Union and a post-Brexit United Kingdom to agree processes and policies by which both parties can agree to put in place shared standards and harmonised recognition schemes.
And to accept common positions on, say, competition law, state aid and public procurement, and consumer protection.
But without such engagement, our services-dominated economy will be increasingly estranged from European markets from Iceland to Cyprus, and from Finland to Malta.
In other words, we need to have a serious post-Brexit conversation about how the United Kingdom can be part of the Single Market so as to remove the non-tariff barriers to our service-dominated economy.
*
To his credit, Tobias Ellwood wants that serious conversation.
Any wise supporter of the government should welcome such a contribution, as this conversation needs to take place.
Even if a government-supporter disagrees with what Ellwood actually says, a prudent government-supporter should respond positively to this attempt to move the conversation forward.
But, no.
The reaction from government-supporters shows we are still trapped in the toxic politics of Brexit.
As this Guardian article describes:
“A Tory MP and arch critic of Boris Johnson has sparked a backlash from Brexiters after suggesting Britain rejoin the EU’s single market to help ease the cost of living crisis.
“Tobias Ellwood’s comments were seized upon by allies of the prime minister as evidence that deposing Johnson would threaten the country’s more distant relationship with Brussels.”
It would appear that Brexit true-believers regard such thinking as somewhere between blasphemy and heresy, if not outright heathenism.
But, as the former army officer Ellwood expressly states:
“If an army general, mid-battle, is mature enough to finesse his strategy to secure mission success, then government should do the same. Let’s have the courage to dare to make operational amendments as we seek to leverage greater success.”
This is the sort of sane pragmatism that would make Ellwood the sort of captain you would want in the trenches in charge of those you care about.
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Now we come back to Tugendhat’s tweet and why it is significant.
Tugendhat could have not tweeted on this topic at all, or he could have tweeted that he welcomed this contribution to this important debate, or even that Ellwood made a good point that should be considered even if to be rejected.
But, no.
Tugendhat tweeted this instead:
Tobias is wrong. The Single Market puts the EU in charge: – EU rules – open borders – no new trade deals
We need a deal British people control not foreign laws with no say.
Let’s plan for the future and stop looking back. This decision is made. https://t.co/4mil6BXWNx
There is nothing in Tugendhat’s tweet that shows he had actually read Ellwood’s article before tweeting about it.
And, as noted above, the third bullet point of Tugendhat’s tweet – ‘no new trade deals’ – is irrelevant, as being part of the Single Market does not prevent an independent trade policy.
So why tweet?
As there is not evidence of Tugendhat having actually read Ellwood’s article, and as there is evidence that Tugendhat does not understand that being part of the Single Market does not stop new trade deals, there must be another reason.
And that reason, of course, is politics – and that is why the tweet is significant.
It signifies that politically we cannot yet move on from Brexit.
We cannot discuss our post-Brexit relationship with the Single Market as that would somehow negate Brexit itself.
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I responded to the tweet as follows:
To which Tugendhat, in turn, responded:
The single market without having a say doesn’t work. EU leaders have a responsibility to benefit their own industry and write the rules to achieve that.
With having a say is called rejoining the EU. That’s another revolution.
The fact that the United Kingdom should become part of the Single Market does not, of course, mean that we will ever do so – even if the economic and commercial advantages are stark.
And accommodation with the European Union over the Single Market certainly does not require re-joining the union.
But it does require leadership, realism and strategic negotiation, so as to build up joint structures and processes where the United Kingdom and European Union can develop their post-Brexit relationship.
In essence, the sort of leadership the United Kingdom will need from whoever succeeds the current Prime Minister.
But the problem is that we still have to pretend otherwise.
Just like we have to pretend it is a good idea to have a futile ‘war on drugs’, we have to pretend it is somehow not in our national interest to be part of a Single Market with almost every European country between Iceland and Cyprus, and between Finland and Malta.
The critical political question is how we manage to be part of the Single Market from the outside of the European Union.
(And I do not support the United Kingdom rejoining the European Union, and there is no reason to believe the European Union would have the United Kingdom back as a member state.)
It can be done, but it will be difficult – with (genuinely) tough decisions and a need for (genuine) leadership.
But the politics of Brexit and of our current Prime Minister means that even in 2022 we cannot yet have this adult discussion.
And that is the tragedy of our post-Brexit politics.
Indeed, the tragedy is that we do not yet have post-Brexit politics – we are still stuck in the politics of Brexit.
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The constitution of the United Kingdom is as much about absences as about content.
Other constitutions have gaps – for example the constitution of the United States does not mention judicial review, the key means by which the federal courts provide a check and a balance to the executive and the legislature.
But in the constitution of the United Kingdom, there are many more absences – things which are not there.
Take the office of Prime Minister – if you were only to look at the statute books, you would find little trace of the role and almost no express provisions conferring powers.
Indeed, until the early twentieth century you would find no legislative trace at all – even though the office had then existed for nearly two hundred years and been occupied by such powerful figures as Walpole, Pitt, Peel, Disraeli and Gladstone.
The power of the Prime Minister’s office comes from other elements of the constitution – by acting on behalf of the Crown (and thereby exercising the Royal Prerogative) and by having a majority in the democratic house of Parliament (which is important as Parliament is held to have legislative omnipotence with the doctrine of parliamentary supremacy).
The Prime Minister – or at least the governing party – can also often derive power from the electorate, with the notion of a ‘mandate’ if a party wins a majority of seats, and this mandate means that the non-democratic house of Parliament must yield when there is a conflict.
All this power – and for a position that, legally speaking, barely exists.
This means that the office can be pretty much what its occupant wants it to be.
For example, Boris Johnson when he became Prime Minister dynamically used the office in five ways to force through the Brexit withdrawal agreement and ‘get Brexit done’ :-
– he changed the policy from his predecessor;=
– he negotiated a revised agreement with the European Union;
– he then signed that agreement;
– he fought an early general election to get a mandate for his negotiated, oven-ready agreement; and
– he used his mandate and his overall majority to force the revised agreement through Parliament and into law.
Few Prime Ministers have used so many of the powers of the Prime Minister in so short a time.
But.
Since that agreement became law, the Prime Minister has become the proverbial dog that has caught up with the car.
It would appear Johnson does not now know what to do with the office – or with his majority.
And remember – a substantial Parliamentary majority is the greatest prize which the constitution of the United Kingdom can bestow on any Prime Minister – and it is not as common as you would think.
Indeed – after John Major lost his working majority not longer after the 1992 general election, it was not until 2015-17 and after 2019 that the Conservatives had an overall majority; and since 1977, Labour has only had an overall majority between 1997 and 2010.
What has the Prime Minister done with this overall majority, which has flowed from the Brexit referendum result for which he campaigned and the General Election at which he promised to get Brexit done?
Almost nothing – and, indeed, the ongoing politics of the Northern Irish Protocol show that he did not even get Brexit done.
Johnson has gone from using the office of Prime Minister to the full to doing almost nothing with it.
The last Queen’s Speech – like a football team defence not impressing Alan Hansen – was all over the place.
The nasty ‘anti-woke’ noises from various ministers do not indicate a programme, but a lack of one.
The government is at one a high-spending, large-state levelling-up government that also now, somehow, wants to substantially cut the civil service.
A government that thinks nothing of partying at Number 10 while imposing the most illiberal restrictions on the rest of us ever known in peace time.
The only theme is that the government will pick fights with and seek revenge on any entity of the state which offers any check or balance.
This is not ultimately about a government or a Prime Minister, but about the lack of a government – and a lack of a Prime Minister.
And so, match our constitution of absences, we now have a government of absences, and a Prime Minister who may be in office, but who is not really there.
Perhaps it is time for him to go away.
*
“Yesterday, upon the stair, I met a man who wasn’t there! He wasn’t there again today, Oh how I wish he’d go away!”
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The key legal case here was a set of appeals which were decided by the High Court in 2002, in a judgment now known as Thoburn.
The street-level appellants faced criminal sanctions and other legal impediments because they dealt their groceries and wares in imperial measures rather than metric measures.
Re-reading Thoburn some twenty years later – in the light of the United Kingdom’s departure from the European Union and this weekend’s ‘news’ about the government wanting to revive imperial measures – is an interesting exercise.
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The first striking thing about Thoburn is the complexity of the applicable law.
Few lawyers – if any – would find it easy to follow paragraphs 8 to 35 of the judgment, which sets out all the relevant legal provisions.
Even the judge who gave the decisions of the court found it a complicated mess, saying at paragraph 81:
“In the course of the hearing I made no secret of my dismay at the way in which the criminal offences relevant to the first three of these appeals had been created. It is a nightmare of a paper chase. I accept that there was no prejudice to these individual appellants, who knew well what the law was because they were concerned to campaign against it. But in principle, I regard it as lamentable that criminal offences should be created by such a maze of cross-references in subordinate legislation.”
(The judge was Sir John Laws – notable to non-lawyers for his name and for being the uncle of Dominic Cummings – and it would be great if commenters assume these two things do not always need to be stated in their comments below.)
This judicial observation has wider import.
It is the lot of regulatory law – especially that law that regulates commerce and retail – to be complicated.
And this in turn means the law – like the one regarding the shape of bananas – will not fare well against the urges of simplification and distortion.
On one hand, you had the accessible image of market traders pricing and weighing their goods in imperial measurements for walk-up customers in English towns.
And on the other hand, you have pages and pages of impenetrable legal-ese which sets out why doing such a thing is a criminal activity leading to criminal sanctions.
Few onlookers would side with the legal-ese.
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A second thing about the Thoburn case is just how hopeless the legal arguments were that were put on behalf of the traders.
Wide ‘constitutional’ submissions were made about ‘implied repeal’ and entrenchment of statutes – which were met by an equally wide-ranging ‘constitutional’ judgment.
This is why the Thoburn case is now – despite not being a Court of Appeal of House of Lords case – a staple of constitutional law teaching and essay writing.
The legal arguments were hopeless.
And this, in turn, was (in my view) a problem.
Many people at the time (and since) thought there was something not right about these prosecutions.
It was one thing to have common rules for cross-border trade within the single market, but it was another to prosecute and seek to give criminal records to local greengrocers and stall traders selling to local customers.
It seemed – to use a European Union concept – disproportionate.
But the hopelessness of the arguments at appeal indicates that here was a grievance here without a remedy.
There appeared at the time to be no way of practically contesting the disproportionate criminalisation of the grocers and the traders.
Even if you are (as I was and am) a supporter of the single market – and thereby of cross-border commercial standardisation and harmonisation – something just did not seem right about these prosecutions, but there was nothing that could be done about it.
And I submit that this sense of impotence in the face of what was perceived to be the legal impositions of the European Union was a contributing factor to what later became Brexit.
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Weights and measures – like currencies – are both instruments and ornaments.
As means of exchange, such measures necessarily have to have a shared understanding – and anything which has a shared understanding will also tend to have cultural significance.
As this informative and fascinating thread by an author of a forthcoming book on weights and measures describes, one should not underestimate how important measures are to people:
Vanity or not, people care about measurement. And — though I would say this — I think the whole thing shows the significance of this topic in our lives. Units of measure aren’t just practical tools: they’re cultural and political objects and deserve to be better understood.
I happen to have been born in 1971 and so was educated with metrification – and I still habitually think in miles, yards and feet, in stones and pounds, and in pints.
And this is despite not being especially patriotic, and not being opposed to metrification in principle.
I suspect it is not an idiosyncratic trait; I suspect many of you tend to think in imperial measures too.
*
But.
The government’s latest proposals. of course, do not make any sense.
This is partly because – after the Metric Martyrs case – both the United Kingdom and the European Union pulled back from strict applications of unified standards.
Supplementary indications of measures were to be allowed indefinitely – imperial markings as well as metric markings
And, in any case, often the relevant laws were home-made and not from Brussels:
Hello, weights and measures inspector here. They were not taken away by 'foreign bureaucrats'. It was long standing UK policy to move to SI units. The legislation to remove imperial was a UK instrument amending a UK act of Parliament. It had nothing to do with the EU.
The United Kingdom’s move towards universal measurements predates membership of the European Union and its predecessor communities.
And over time, no doubt, these more ‘rational’ and internationally acceptable measures will take hold.
(Few now can reckon in pounds and shillings – which also went in 1971.)
Yet it is one of those areas where law and policy cannot easily outpace lore and culture.
Units of measurement are the means by which people understand the world about them and indeed understand the dimensions of their own bodies.
They will not easily shift – and perhaps some may never disappear altogether.
The current government is in deep political trouble – and so it is not surprising that it seeks to get the benefit of nostalgia and sentiment.
Such a government should be treated with disdain.
But changing the everyday practices and conventions of a people is a slow process – and with metrification it still has not ended.
Not by a country mile.
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Sensible conservative-unionists – and, no, that is not necessarily a contradiction-in-terms – used to abide by the maxim that politics was ‘the art of the possible’.
And one thing that the European Union did was make certain things possible, which otherwise were not possible.
With Gibraltar and Spain, for example, the border issue became less of an issue.
And with the island of Ireland, the border issue too became less of an issue.
Because both Ireland and the United Kingdom were both members of the European Union – and thereby both members of the internal market and customs union – a hard border, with infrastructure and bureaucracy, was unnecessary.
This created the conditions that made the Good Friday Agreement possible – though, of course, there were many other factors.
But now Brexit has come along, there is a problem.
There has to be a border somewhere where one entity is inside a pan-European internal market and customs union and the other entity is not.
Had Brexit not been so extreme – with the United Kingdom staying inside the internal market and/or the customs union (which is the position with some other non-EU states) – then the Irish border issue would be less of a problem.
But the Brexit which Theresa May insisted on, with the United Kingdom outside the internal market and customs union, meant there was going to be a problem.
May eventually realised this – and so she supported the ill-fated ‘backstop’ arrangement, which meant that – if there was no post-Brexit trade agreement – the cross-border arrangements of European Union membership would continue as a default.
But May’s proposal was rejected heavily by the House of Commons (including by ‘remain’ Members of Parliament).
That left one other option – the border in the Irish Sea, which was supported by the new Prime Minister Boris Johnson, and enshrined (ahem) in the Northern Irish Protocol.
And, as this blog has set out many times, Johnson here changed the policy, negotiated the Protocol, signed the withdrawal agreement containing the Protocol, fought a general election so as to get a mandate for the Protocol, and rushed the relevant legislation through parliament.
Johnson could have not done more, as Prime Minister, to have brought the Protocol into existence and to pass it into law.
But.
The Protocol is a solution to one problem but not to another.
It is a solution to the political problem of late 2019 where Brexit needed to be ‘done’ – and the Protocol was the only possible way to do so avoiding a hard border on the island of Ireland.
But it is not a solution to the deeper problem of how Brexit is compatible with the on-going existence of the union that is the United Kingdom of Great Britain and Northern Ireland.
Either one has Brexit (at least without continuing membership of the internal market and the customs union) or one has that union, but one cannot easily have both.
This is not to say that a united Ireland is likely – there are many solutions to political problems that never are adopted.
It may be that the problem continues, and continues, and is never resolved.
But a united Ireland is the only ultimate solution to there not being a border somewhere in respect of the north of Ireland.
Of course, special arrangements would need to be made for the non-nationalists in Northern Ireland – and one would hope that those protections serve that community better than the (lack of) protections for the nationalists in the north of Ireland after 1922.
Having watched Brexit from the beginning, I am still bewildered why supposed unionists did not see this problem coming – and indeed strongly campaigned for Brexit.
The European Union provided a means by which Northern Ireland could have continued in the United Kingdom, regardless of demographic changes and the gradual fall in unionist support.
But some forgot that politics was the art of the possible, and they pursued the politics of the impossible instead.
**
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