Category: Brexit

The only ultimate solution to the problem of the Northern Irish Protocol may be a united Ireland

20th May 2022

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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Compliance not confrontation: a possibly significant rhetorical shift in the Foreign Secretary’s statement today on the Northern Irish Protocol

17th May 2022

As any good regulatory lawyer will tell you, ‘compliance’ is better than contravention or challenge.

The question is what can constitute compliance.

From time to time a regulatory lawyer will get a new or inexperienced regulated client who want to challenge or contravene a regulatory rule or policy.

‘Let’s go to court’,’ the novice will say, or ‘let’s tell them that we will see them in court’.

The regulatory lawyer will shake their wise head and say: ‘well, if you do this instead, then you will be complying, and then all the bother will go away’.

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Compliance is usually a better overall legal strategy than confrontation.

And with that view in mind, let us now look at the statement by the Foreign Secretary today to the House of Commons about the Northern Irish Protocol.

Instead of the statement once (notoriously) made by a cabinet minister that the United Kingdom would only break international law “in a very specific and limited way”, the Foreign Secretary said that the government would comply with international law in its new legislation:

“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 is to ‘comply’ with international law – though no doubt in a very specific and limited way.

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So much for rhetoric – on information currently available, it seems the government is threatening what it has threatened before.

The significant difference is that the government is now to threaten this while maintaining it is complying with international law rather than candidly admitting that it is seeking to break it.

It seems that the basis for this intellectual exercise in gymnastics is that the Good Friday Agreement takes priority over the protocol.

That this is the tactic is supported by the references to the Good Friday Agreement at the beginning of the statement and from statements from government supporters:

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As one Northern Irish writer put the notion of such priority in a fantasy context, there can sometimes be “deeper magic”.

What the government appears to be developing is a contention that any unilateral amendment of the Norther Irish Protocol cannot really be a breach of international law if that amendment is by reason of the Good Friday Agreement.

Of course: this is all sophistry and illusion.

The policy substance has not changed, and the proposed breach has not changed, all that has changed is that the proposal will not now be described as breaking international law.

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Yet such a rhetorical shift is possibly significant.

For it may signify that although the United Kingdom government has no fresh ideas about how to resolve the issue with the Northern Ireland Protocol, ministers may now realise that the rhetoric of challenges and outlawry is not necessarily helpful.

And, if this is the case, this could become a useful habit – for the government may find other things that can be brought under the label of ‘compliance’ that may allow it to shift its position in substance.

Smudgery and fudgery, perhaps.

And somewhere in Whitehall, a foreign office lawyer nods their head wisely.

It is all about what ‘compliance’ means, you see.

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Four truths about the Northern Irish Protocol

16th May 2022

Here are, to begin with, a couple of truths about the Northern Irish Protocol – both of which will be familiar to those who are hostile to or critical of Brexit.

First, the protocol was negotiated, signed and implemented by the Boris Johnson government – who even had changed government policy from Theresa May’s previous backstop.

Indeed, Johnson even went to the electorate for a mandate for this ‘oven-ready’ deal.

He and his government owns the protocol.

Second, triggering Article 16 will not do what the more excited media and political supporters of the government say (and perhaps think) it will do.

As this blog has previously set out, triggering the provision only means there will be talks and possible remedial measures within a narrow compass.

All because a thing can be triggered, it doesn’t make it weapon.

But.

There are other truths which those hostile to or critical of Brexit may not so easily want to admit.

For a third truth is that there is an issue not of black-letter law, but of – for want of a better word – application of the protocol.

This point is deftly summarised in a recent thread from Hilary Benn, who is hardly a fire-breathing Brexiter:

Of course, the European Union – including Ireland – are right to be concerned about maintaining the integrity of the single market.

Yet, it is less clear that that goods going to Northern Ireland from across the Irish Sea put the single market at risk – or at least at sufficient risk so as to justify the current regime of checks.

And ‘proportionality’ and ‘subsidiarity’ are, after all, concepts drawn from European Union law and policy.

In other words – without breaking (or amending) the Northern Irish protocol, a great deal of the commercial – and political friction – could be allayed – by a less strict (or more realistic) approach to concepts such as ‘at risk’.

Just because there are rules, they do not need a maximalist interpretation.

And fourth, and as this blog has averred before, Northern Irish politics do require there to be consent from both the unionist and nationalist communities.

Overall majorities are not enough.

Of course, the Democratic Unionist Party has only itself to blame for supporting Brexit – and the Johnson government – what else did they think would happen?

(And why the Democratic Unionist Party supported Brexit is a genuine mystery of the Brexit story.)

But the the practical political problem is that the protocol appears not to be supported by any elected unionist politicians.

You may think they should support the protocol – and you may be dismissive of them for not doing so – but the need for consent from both communities cannot be waved away.

So: there is a problem – of the Prime Minister’s own making and for which triggering Article 16 will not – by itself – solve.

But it is also a problem that needs to be considered flexibly and sensitively.

As this blog has said many times, not all problems have solutions.

Yet there is sometimes no alternative to seeing if there is a way forward – and such attempts should be given a chance.

It is just unlikely that a solution will come from the current government with its current bombastic silliness and confrontational gesturing.

The attitude of this government is a problem that can be solved – and as soon as possible.

 

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What Theresa May got right (but also very wrong) about Brexit – a look at her striking intervention in the Queen’s Speech debate

11th May 2022

Theresa May is a far better as a former Prime Minister than she ever was as a Prime Minister.

Other living former Prime Ministers have all stepped away from the House of Commons – and have also avoided appointment to the Lords.

Hers alone is the voice of a former Prime Minister in parliament at a time of this generally dire premiership.

Her premiership was not a good one – and from her early blundering over Brexit ‘red lines’ flowed almost all of the Brexit problems the United Kingdom has since had to deal with.

(And, of course, she was a worse Home Secretary, where she instigated the vile ‘hostile environment’.)

But.

May got one thing right.

And that was – given the respective positions of the United Kingdom and the European Union – there had to be either a ‘backstop’ or a trade border down the Irish Sea.

She chose the ‘backstop’ – which, in general effect, meant that if the United Kingdom and Ireland/European Union did not agree a trade agreement, certain measures would have to be implemented in Northern Ireland in respect of cross-border trade.

That proposal failed to pass the House of Commons – indeed, those versions of the  withdrawal Bill suffered one of the heaviest government defeats in parliamentary history.

The new Prime Minister Boris Johnson – in a cynical manoeuvre that must have seen very clever at the time – dropped the ‘backstop’.

As this blog has previously set out, this was very much his measure – he changed the United Kingdom policy, he negotiated and agreed a revised treaty, he got it through parliament, and he obtained a majority for it in a general election.

Johnson used every power of the Prime Minister to get this new Northern Irish Protocol through Parliament, and at speed.

Parliament was denied any real opportunity to scrutinise the measure.

And Brexit supporters clapped and cheered this splendid wheeze so as to ‘Get Brexit Done.’

They are not clapping and cheering now.

For the cost of the Brexit which got ‘done’ was the Northern Irish Protocol.

At the time, this seemed a price Brexit supporters were willing to pay.

But now they do not want to pay it.

They want it both ways – they want the United Kingdom outside of the European Union but they now want to reject the only means by which that was possible in late 2019/early 2020.

Cakes, eating, and so on.

And so it was not surprising that May took an opportunity to respond to an intervention from a Northern Irish unionist MP who opposed her ‘backstop’ in the following terms:

She said:

“I put a deal before the House that met the requirements of the Good Friday agreement and enabled us not to have a border down the Irish sea or between Northern Ireland and the Republic of Ireland. Sadly, the Democratic Unionist party and others across the House chose to reject that, but it was an opportunity to have what the right hon. Gentleman wanted.”

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Had May had her way, however, there would have been alternative problems.

This is because of her early ‘red lines’ blundering, the only two withdrawal agreements available by late 2019, were the ‘backstop’ and Johnson’s calamitous clever wheeze of a border in the Irish Sea.

And this is because of the fundamental problem – that has never been addressed – of how one maintains an open border on the island of Ireland with no customs or trade infrastructure, if Northern Ireland leaves the European Union customs union and single market.

Some problems do not have solutions.

And, as this blog has also previously averred, it is not enough for those critical of Brexit (and this government’s Brexit policy) to point and jeer at the government and remind ministers that they negotiated and signed the Northern Irish protocol.

It may be satisfying, but it is not sufficient.

And any significant move in Northern Ireland does not need a mere majority, but actual consent from the nationalist and unionist communities.

This was pointed out yesterday by a unionist politician who had been opposed to Brexit:

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When May took office she insisted Brexit would mean Brexit.

She insisted that the United Kingdom would leave the European Union customs union and single market.

Yet a Brexit with the United Kingdom remaining within the single market was possible – and this is the basis on which other non-European nations trade with the European Union (as part of EFTA).

So she may have been right in her answer to the unionist politician yesterday.

But on a more fundamental level, she and other Brexit-supporting ministers got it very wrong.

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These free-to-read law and policy posts every week-day do take time and opportunity cost to put together, as do the comments to pre-moderate.

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What the next Queen’s Speech may tell us about this government

27th April 2022

Yesterday’s I newspaper had this interesting front page about the upcoming Queen’s Speech:

The article supporting the front page told us:

“At least a dozen Government bills which were promised at the Queen’s Speech a year ago will not become law in time for the next speech which takes place on 10 May. Downing Street is seeking to push through another 10 pieces of legislation in the next few days.”

What is especially interesting about this front page is its timing.

We are more-or-less at the midpoint of this parliament.

The last general election was on 12 December 2019, and the latest date for the next election, it would seem, is 24 January 2025.

The next Queen’s Speech – which has been set for 10 May 2022 – will mark the start of the last full parliamentary session where there would be adequate time for any significant reforms to be properly carried through after enactment.

In other words: if the government was to attempt major changes through legislation, this is the time.

But.

This government does not appear to have the appetite for major reforms.

Promised overhauls of, for example, our complex systems for planning or procurement will again not be put forward.

The (impartial) House of Commons Library provides the following list of Bills promised in the last Queen’s Speech that are yet to be introduced:

(‘Procurement Bill’ sounds like a bloke who works in supplier management in a less exciting sequel to Postman Pat.)

The library also lists the bills ‘foreshadowed’:

But as any decent scriptwriter will tell you, foreshadowing is not character (or story) development.

And it would seem that this government finds it easier to announce fundamental reforms than to actually take them forward and implement those reforms.

The ultimate reason for this is simple.

Reform is hard, policy is hard, law-making is hard.

Getting one’s thoughts together to the extent of actually having a Bill ready to introduce to parliament is hard.

The first reading in parliament of a Bill is not stage one of a process, but about stage seven or eight.

The hard work takes place on the departments and with parliamentary drafters.

Handing a Bill to ministers to pilot through parliament is not to be done lightly.

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The former Downing Street adviser Dominic Cummings had – regardless of his other merits and otherwise – ambitious plans to shake our planning and public procurement regimes.

No sensible person with knowledge of planning or public procurement would say the current arrangements are perfect.

An ambitious, reforming government would now be ready to grapple with fundamental reforms in planning, public procurement, and many other areas.

And this government would be in a strong position to do – on paper.

For this government has the greatest prize that the constitution of the United Kingdom can bestow: a large working majority in the House of Commons.

This means the government not only has all the advantages of extensive executive power (under the royal prerogative and otherwise), and access to the government legal service and the treasury panel of barristers for fighting cases in the courts.

It also means that the government can be confident of passing legislation through the House of Commons and, if necessary, forcing it through the House of Lords too.

Few Prime Minsters win this prize.

Clement Attlee had this prize, and used it to drive through welfare state legislation; Thatcher did with trade union and privatisation legislation; and even Tony Blair, in his first term, was able to get the Human Rights Act and other legislation on the statute book.

And our current government?

Here is a challenge: take a moment to name one flagship Act of Parliament passed since the general election.

Yes, there has been Brexit and Covid legislation – but this would have to have been passed whoever won the last general election.

Can you think of one?

I am a law and policy commentator – and I can can only think of a possible few – though various nasty laws on borders and protests are about to come enacted.

Of course: Brexit and Covid have taken a lot of government and parliamentary time, as have Afghanistan and Ukraine.

But.

At this mid-term moment, a government with a large working majority should be raring to go.

Yet it is not.

It a government that cannot even be confident to block or amend a reference to the privileges committee about the Prime Minister.

As Norman Lamont once said of then Prime Minister John Major, we have a government in office but not in power.

And that was when Major government had a very small majority, not the working majority of nearly eighty of Boris Johnson.

So this could be a significant Queen’s Speech – but its true significance may be about what it does not contain, rather than what it does.

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The Northern Irish protocol is both legal and constitutional – the significance of today’s appeal decision

14th March 2022

One of the features of having an ‘unwritten’ (that is, uncodified) constitution is that there is not often ‘constitutional’ litigation.

Even cases of the highest political significance are decided on technical points of law, with judges affecting to not be concerned about any wider implications.

But sometimes there is a case where the court is conscious of the constitutional significance of the matter before it, and today one such case was decided at the Court of Appeal in Northern Ireland.

We do not yet have the full judgment, though we have this detailed summary.

The case was about the legality of the Northern Irish Protocol.

At first instance the appellants – a group of pro-Union politicians – lost their challenge to the protocol’s legality, and so they appealed.

One ground was that the protocol was contrary to the Act of Union 1800.

Here part of the court’s summary reads as follows:

“The court said that Parliament was clearly sighted on the Protocol which was the end result of a “protracted, transparent, debated, informed and fully democratic process which decided arrangements for Northern Ireland post Brexit”.

“It said the terms were settled and made law after a long parliamentary process and it could not be suggested that Parliament was unaware of the changes that may be wrought.”

This is important.

Of course, there is a certain artificiality in saying MPs knew what they were voting for in detail – or even cared.

But – almost as a legal, or constitutional, fiction – parliament must have been aware of what it was doing.

And as such it would be wrong for a court to gainsay parliament.

In particular parliament had expressly legislated that previous legislation – including, by implication, the Act of Union – should be read so that they would be subject to the withdrawal agreement legislation.

And if they were subject to the withdrawal agreement legislation there was no conflict – parliament had already stated which provision would have the the priority.

The significance of this judgment is that the protocol is not only legal but also constitutional – which is not always quite the same thing.

The court has set out how the protocol fits within – and does not disrupt – the settled constitutional arrangements of the United Kingdom.

And it has done so not in a judgment cloaked by technicalities and affectations, but with an open acceptance that parliament should prevail.

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Why the road to Brexit began at Maastricht

7th February 2022

Today is the anniversary of the Maastricht treaty:

And so I tweeted the following:

https://twitter.com/davidallengreen/status/1490611449621884932

Being Twitter, the consequence of such a tweet was, of course, that I was told that the proposition was wrong – and that something else was the start of the road to Brexit.

(Click on that tweet to see those alternative views.)

But this post sets out, in brief, why I think that the proposition is sound.

Why the road to Brexit began at Maastricht.

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Let us go back to “1992”.

No, not the actual year.

But the once-pervasive campaign to get people ready for the completion of the single market.

It was to the date by which the integration put forward by the Single European Act was to be finally in pace.

As far as I can recall there was little political opposition to “1992” in the years leading up to that date.

Indeed the single market was a thing proudly promoted by Margaret Thatcher and practically implemented by another Conservative politician, the European Community commissioner Arthur Cockfield.

But.

Before we ever got to either “1992” or, indeed, 1992, there was already another determined push towards European integration.

This push was what resulted in the European Union – which replaced the European Community – at the treaty of Maastricht.

This movement has a quality different to “1992”.

In the United Kingdom – and elsewhere – this push was contested.

There was little of the general consensus with which “1992” was accepted and promoted.

Indeed, the passage of the legislation in the United Kingdom under John Major was politically controversial.

There is a direct line between the Maastricht rebels of the early 1990s and the post-2015 Brexit movement.

(I know this, as I was research assistant to one Maastricht rebel MP who also was a MP who voted in favour of Brexit.)

Maastricht created an organised reaction that – in my recollection and view, as someone there at the time – had simply not been there before with “1992”.

And the reaction, in turn, of those in favour of integration was, in my view, also polarising.

There was a range of ‘pro-European’ clichés – about not missing trains or not being at top tables, and so on – that did nothing to make a substantive or positive case for integration.

The Maastricht treaty also (purportedly) expanded the ‘competencies’ of the European institutions into areas such as justice and home affairs, and foreign and defence matters, which has not immediately obvious connection with the single market.

And in respect of these competencies, the United Kingdom government (and some other member states) then got into the habit of picking a choosing what areas to opt in or out of.

This half-hearted approach also can be seen in the opt-out from the Eurozone – membership of which many insisted was essential for participating in the single market.

(Though, even now in 2022, not all the countries in the single market are part of the Eurozone.)

So not only did Maastricht create the modern European Union it also enabled the semi-detached policy approach of the United Kingdom and the organised political opposition to further integration – both of which were significant after 2015 for Brexit.

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My recollection is that at the time I thought United Kingdom membership of the European Union was not sustainable.

I did not think the United Kingdom would ever go full-heartedly into accepting European Union competencies outside the single market, or that the United Kingdom would accept the single currency as being essential for being part of the single market.

I also did not think the approach of ‘pro-Europeans’ would ever win over those who developed their criticisms of the European Union in the Maastricht debates.

My view was (and is) that it would be better – and far more sustainable – for the United Kingdom to have an association agreement with the European Union.

After the early 1990s my views mellowed – and it seemed by 2015 that any departure would not be worth the time and energy.

That a cost-benefit analysis of Brexit would show more costs than benefits.

Others did not – and they kept pushing and pushing until they got a referendum and a departure.

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Had things stayed with a “1992” single market in a steady state,  Brexit would have been more unlikely.

Of course, there was never going to be such a steady state – the belief in an ‘ever closer union’ was still then a thing.

It is not now really a thing, ironically, as there has not been a major European Union treaty since Lisbon in 2009 – and it looks like there will never be another one.

Indeed, the United Kingdom departed the European Union just as the belief in an ‘ever closer union’ ceased to have any actual political force.

All this said, there was no inevitability that there would one day be Brexit – just as there is no inevitability about the destination of any path.

Had things gone differently in 2015-16, it is conceivable that the United Kingdom would still be a member of the European Union – though the populism of Farage and others would still be pushing for an effect.

But if the path to Brexit can be said to have started anywhere, I think it was Maastricht.

So that is my view, as someone who followed both Maastricht and Brexit closely.

What do you think?

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Another Sunday, another threat to trigger Article 16 – a weekend tradition

9 January 2022

Just a brief post today (Sunday) to mark what is now perhaps a weekend tradition.

It is a tradition that started some months ago – some say a year ago – and its performance is passed on from Brexit minister to Brexit minister.

The tradition is, of course, the threat to trigger Article 16.

Few may remember or care what this threat means.

Perhaps, with the passage of time, any real meaning has been lost.

The threat, as before, has been made for domestic consumption, to a government-supporting newspaper whose website is behind a paywall.

One should not doubt that this government is capable one day of triggering Article 16 – after all, it once triggered Article 50 without any clear idea of the practical consequences.

Nobody should be complacent about Article 16 never being triggered, even if the government would not know what then to do.

But.

It is telling that the threats are made domestically, by a politician appealing to their own supporters, at the weekend and behind a paywall.

It is almost as if the purpose of the threat was nothing to do with Brexit at all, and it is instead about the upcoming leadership contest of the governing party.

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Brexit policy is, after five years, with the Foreign Office – and this is good

Winter Solstice, 2021

One of the daft things about Brexit – and there have been many – is that the Foreign Office was not made responsible for Brexit policy after the referendum.

This was because, in part, the Foreign Office was distrusted by Brexiters.

Instead we had, first, a pop-up department with no centre of gravity in Whitehall – DExEU, if you remember it – and then we had David Frost as a floating minister-negotiator without much civil service support.

All this was misconceived.

It meant that, for example, the network of diplomats in member states were at least one step way from those conducting negotiations, and the United Kingdom negotiators often seemed unaware of what was behind the European Union negotiation mandate.

It also meant that – with trade or with Northern Ireland – there was little regard for the international context of the negotiations.

And it meant the talent and experience pool for the negotiators was far more shallow than it needed to be.

Regardless of one’s views as to the merits and party political political significance of Foreign Secretary Elizabeth Truss now being responsible for the negotiations, it is a Good Thing that the Foreign Office is now responsible for post-Brexit policy.

It is, in a way, an administrative counterpart to the Liberal Democrat victory in North Shropshire, where voters in a heavily Leave constituency were not deterred from voting for a pro-EU party – another example that the spell of Brexit hyper-partisanship is beginning to fade.

A Leave constituency can now be safe with a pro–EU party, and post-Brexit policy can now be safe with the Foreign Office.

That said, there is still the gap as set out in a previous post on this blog: the absence of an actual post-Brexit policy.

But we are more likely to get one with the Foreign Office being responsible for post-Brexit policy than we would do with a flimsy (and virtual) government department or a shouty minister-negotiator with no department.

At some point, there will be a realisation that a close and sustainable association agreement, with joint institutions, needs to be put in place between the United Kingdom and the European Union.

Our current post-Brexit policy should be thinking and working backwards from this objective, ensuring that when we get to that (more) stable state the United Kingdom is in the best possible position.

Brexiters need to stop being defensive: they have got their Brexit, and the United Kingdom is not a member state of the European Union – no rearguard is necessary.

Remainers and rejoiners, in turn, need to accept that the United Kingdom will not be joining the European Union for at least a generation.

We should not continue with the heightened politics of 2016 – with Brexiters, remainers and rejoiners all re-fighting referendum issues like a historical battle re-enactment society.

Maybe Truss is not (yet) the right politician to move Brexit policy to the next stage.

But the Foreign Office is the right department.

And so it is a welcome move.

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What follows the resignation of David Frost?

19th December 2021

Today is a Sunday, and on many previous Sundays this blog has covered claims in the weekend press about what Brexit minister David Frost intended to do with Article 16 of the Northern Irish Protocol.

But this Sunday is about what the Northern Irish Protocol has done to David Frost.

And in essence – the Protocol is still there, and David Frost is not.

So what happens now?

Some are discussing who Frost’s replacement would be.

But this does not really matter.

For until and unless the United Kingdom thinks through what it wants from its post-Brexit policy, the problems associated with the Frost tenure will still be there.

And the question of who should succeed Frost is less important than the question of whether there even needs to be a Brexit ministerial job.

By which I mean that the (apparent) job of Frost was to force the European Union into renegotiating the Protocol, and that attempt has failed – and it will keep on failing.

Instead, we need to have a period focused on implementation and ongoing review of the Protocol, rather than weekly confrontational drama.

This is a task that could be done by a senior diplomat or official, reporting to the Cabinet – rather than a mid-ranking non-cabinet minister.

But whoever is appointed (if anybody), there still needs to be something that the United Kingdom wants to achieve that is realistic: a post-Brexit policy.

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At the moment we do not have any post-Brexit policy.

We instead have slogans and impossible demands.

We have no balanced and considered approach, reconciling the conflicting political and economic elements of Brexit.

We have no achievable vision of what the United Kingdom wants in the years (and decades) to come following Brexit.

And without a vision and without a policy, any Brexit minister will be without a clue what to do.

We will not have a worthwhile post-Brexit policy while Boris Johnson stays as Prime Minister.

He may go soon, or he may hang on.

But we will have to wait until he is no longer prime Minister before we can develop a serious strategy for our relationship with the European Union.

Until then we will just have the soundbitten, flimsy understanding of the easily bored.

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And so, like a succession of Russian dolls, each problem fits inside another.

The successor to Frost does not matter because of the larger problem of what is the point of a Brexit minister – and that problem is within the larger problem of there not being a post-Brexit policy.

One day, after the current Prime Minister is no longer in office, there will be politicians who will have the vision and drive to put in place a sustainable association agreement with the European Union.

And that day will come – as the present chaos and incompetence cannot (or should not) continue forever.

The only worry is how long it will take for us to get there.

******

Please help this daily law and policy blog survive.

It needs your help to continue for another year – for the benefit of you and other readers.

Each free-to-read post takes time and opportunity cost.

This law and policy blog provides a daily post commenting on and contextualising topical law and policy matters.

If you value this free-to-read and independent legal and policy commentary – both for the you and for the benefit of others – please do support through the Paypal box above, or become a Patreon subscriber.

*****

You can also have each post sent by email by filling in the subscription box above (on an internet browser) or on a pulldown list (on mobile).

******

Comments Policy

This blog enjoys a high standard of comments, many of which are better and more interesting than the posts.

Comments are welcome, but they are pre-moderated.