Category: Brexit

The weird state we are in

10th December 2021

This is a daily law and policy blog – indeed, there has now been a post daily for well over a year.

And being a daily blog, it sometimes difficult to step back and appreciate just how weird our government and politics are at the moment.

For example, we have the situation where if the Prime Minister has lied to his advisor on standards, then it will be the advisor who is expected to resign.

We also have the government’s ‘crime week’ that started with the Prime Minister dressing up as a police officer, and ended with the governing party being fined by the Electoral Commission.

There has been a row about a Christmas party that has now dominated politics for two weeks.

And in the meantime the government is pushing forward legislation that will enable its officials to kill people without legal consequences, that will prohibit meaningful protest, and that will summarily remove citizenship from you because of where your family is from.

Strange days, dark days.

And it is difficult to keep up, let alone try and make sense of any of as a law and policy commentator.

The main (but not only) cause of this is Brexit.

Brexit, in effect, has thrown a great deal of what was settled in British politics up into the air, and it still has not landed.

And government departments – free from any leadership and real accountability – are taking the opportunity to get away with as much illiberal legislation as they can.

The only ‘civil liberties’ complaints from many politicians will be about wearing masks and encouraging vaccines.

The antics of the current Prime Minister, unfit on any political view to hold that office, are possible only because of Brexit and its aftermath.

Will things ever get settled again?

Will there ever be a return to ‘normal’ politics?

The current weirdness may now be a routine commonplace.

But it should never be considered as normal.

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No UK political leaders of any party seem to be taking Northern Ireland seriously

30th November 2021

Yesterday the opposition Labour party had a reshuffle of its shadow cabinet.

This would not usually be anything of note for this blog, as it is the stuff of politics rather than of policy and law.

But there was one change that caught the eye.

The shadow Northern Irish secretary Louise Haigh was switched to the transport brief.

This was, to say the least, a shame.

Haigh had developed expertise and insights into the post-Brexit problems for Northern Ireland and the border dividing the island of Ireland.

She made a particular point of visiting Northern Ireland and Ireland regularly, so as to listen and understand the issues surrounding the Northern Irish Agreement.

She also had not only read the Good Friday Agreement (unlike some ministers), but she also understood it.

There was no better opposition politician to be in place while during reckless, erratic antics of Brexit minister David Frost and his constant threats to trigger Article 16 for no good reason.

And now, all that is lost, and the opposition front bench has to start again.

Haigh, of course, will no doubt do well on transport policy – especially as a northern member of parliament affected by this government’s reversals on rail infrastructure.

But something has been lost, and the necessary impression is that the Labour leader Keir Starmer, like the government front bench, does not take the Northern Irish issue that seriously.

As Dr Laura McAtackney avers:

These are all the shadow Northern Irish secretaries since the Brexit referendum:

And these are all the Northern Irish secretaries:

The turnover of Northern Irish secretaries and shadow Northern Irish secretaries has not only been at a time of Brexit and post-Brexit uncertainty but also when for about half the period since the referendum there has been no devolved assembly in Northern Ireland.

Could the main two political parties show any less interest in Northern Ireland?

If and when there is a border poll, and if and when there is a majority in the poll for a united Ireland, British political leaders will only have themselves to blame.

And indeed by any such a poll in just a few years, at the current rate we probably will have had another three or four Northern Irish secretaries and shadow Northern Irish secretaries.

The consequences of Brexit on Northern Ireland and the issue of the Irish border should be taken with the utmost seriousness by the leaders of the main British political parties – and they, of course, will protest that they do.

But rapid turnover of both Northern Irish secretaries and shadow Northern Irish secretaries shows otherwise.

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The unforced error by Boris Johnson of publishing the letter to the French President

26th November 2021

Yesterday Nick Fletcher, a little-known member of parliament (with his own taste for time travel), tweeted a daft statement on headed paper about whether casting a female Doctor Who was the cause of a real-world crime surge.

And yet that was not the most stupid thing on headed paper tweeted yesterday by a politician.

The current prime minister surpassed even that missive.

What was stupid about this prime ministerial letter being tweeted was not so much the content – though the content was bombastic and demanding.

The letter had all the quality of an English person outside a Parisian café ordering in English slowly and loudly, with hand gestures.

The real stupidity of the letter was in its tweeting.

And so what then happened was almost inevitable.

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Le whoopsie (with *hand gestures*).

There are two observations to make about this latest pratfall.

The first is personal to the current prime minister: there is no policy predicament so bad that it cannot be made worse by his intervention.

This is yet another unforced error by perhaps the greatest political manufacturer of unforced errors.

The second is that it demonstrates a tension – if not a contradiction – at the heart of Brexit and post-Brexit politics and policy: the political need for the United Kingdom government to play to its domestic audience and the policy need for it to cooperate with European states.

Often the United Kingdom government gets away with it, as those in Europe care little or nothing about the front pages of British newspapers.

But in this instance, the play for the domestic audience was at the direct expense of cooperation.

The café door has slammed shut.

And the loud English man is left outside gesturing to nobody in particular, while trying to assure himself that nothing has gone wrong.

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By ‘taking back control’ of your borders, you can lose control of your borders – the lesson of Brexit

25th November 2021

Brexit, we are often told by its supporters, was about taking back control – especially control of our borders.

But think about borders for the moment.

For every border there is – perhaps axiomatically – another side.

Else it would not be much of a border.

This means that if you take back control as an exercise in unilateralism then you may lose control – or influence – over what will be happening to your border from the other side.

And so you will not be taking back control – but losing control.

For an effective border usually requires there to be shared policies on both sides.

Therefore, without cooperation, you lose control or influence over what will be happening to your border.

This is obvious – if you think about it.

The issues with the borders in the island of Ireland and in the English channel both have a common basis in that Brexit-supporting politicians underestimated the importance of cross-border cooperation and shared policies in making borders work in practice.

Control of any border is rarely achieved – at least without lethal enforcement.

And even the borders of totalitarian regimes dissolve.

The policy of the current governing party of the United Kingdom used to be about bringing down walls and promoting shared policies – the Single Market owed much to Lady Thatcher and Lord Cockfield, and the expansions of both NATO and the European Union was promoted by successive Conservative governments.

Short of repression, the only way to take (or have) control of any border is by cross-border cooperation and shared policies.

And so, in this and many other ways, Brexit is an expensive and painful exercise in the United Kingdom government finding out just how interdependent things are in a complex world.

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Article 16 still has not been triggered – but a government capable of triggering Article 50 is capable of triggering Article 16

12th November 2021

Once upon a time I thought it would be unlikely that a government would actually trigger Article 50.

This doubt was for two reasons.

First: I did not think that any rational government – notwithstanding the 2016 referendum result – would be mad enough to start a formal departure process which was so structurally skewed in favour of the European Union.

And second: even if the United Kingdom did want to depart the European Union there was no absolute reason why it had to be done by Article 50.

(As I averred at time it would have been better if a general departure agreement had been negotiated instead of the somewhat artificial two-stage process we had instead.)

But.

The government of the United Kingdom triggered Article 50 anyway – and without any thought or planning.

What has followed since is generally because of this lack of thought and of planning.

So when the question of triggering Article 16 of the Northern Irish protocol came along, I was careful not to be so rash as to predict that the government would never be so mad to trigger Article 16 – at least as not as part of a re-negotiation exercise.

The government of the United Kingdom has shown it is perfectly capable of triggering articles of treaties without any idea what then follows.

A government capable of triggering Article 50 is capable of triggering Article 16.

It is almost as if triggering a treaty article is seen as some sort of political virility test – Article 50 one year, Article 16 another year.

And so we have been braced-braced for the triggering of Article 16 – even if the government of the United Kingdom has no idea what to do next.

But.

The government of the United Kingdom still has not triggered Article 16 – and, according to news reports, ministers are now seeking to de-escalate the situation.

Perhaps the government of the United Kingdom has come to its senses – and realised that there is a time and a place for Article 16 notifications, and this is not one of them.

Or perhaps the the government of the United Kingdom has realised that the reaction of the European Union – and the United States – would not be worth the trouble.

Who knows.

But one hopes that the government of the United Kingdom is becoming less gung-ho about triggering articles of international agreements.

Such acts are not signals of political virility, but of political thoughtlessness.

And we have had too much political thoughtlessness already.

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Looking at the lies and corruption as consequences rather than causes

6th November 2021

Here is a thought-experiment.

Imagine a policy position that a mainstream United Kingdom political party could adopt.

Imagine the prime minister supporting that speech in a public statement – in a speech, or a newspaper article, or a remark in an interview

And now imagine the prime minister saying just the opposite.

It is not only easy to imagine, but also to think of counter-examples of a mainstream policy position he would not take.

We have an infinitely flexible prime minister with no discernible consistency on any question of policy.

Of course, there is political – as opposed to policy – consistency: he will be motivated by advancing his own interests and those, where they coincide with his own, of his party.

But on any question of policy – as opposed to politics – there is no depth.

This is the politician who wrote two columns about Brexit.

This is also the politician who berated environmental policies before telling the United Nations that it was not easy being green.

(And anyone with the surname Green could have told him, that line often falls flat as a joke.)

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Perhaps these observations are, well, obvious – but that does not make it pointless to point them out.

And nor does familiarity with the prime minister’s lack of principle remove the need to work out the implications of this (lack of) approach.

One implication – which may be painful for some readers – is that it shows the failure of liberal and progressive forces..

For if a charlatan could have come to power on the back of liberalism and progressive politics, then the charlatan would have done so.

In this way the prime minister is not a cause but a consequence of a failure of liberalism and progressive politics.

The politics of this country since 2015 have been dominated not by Brexit victories but by two decisive Remain defeats – in 2016 and 2019.

There is no good reason why Remain lost the 2016 referendum.

Remain was the status quo, with economic benefits, and the policy of every mainstream party, and with the weight of government funding behind it.

But many supporters of membership were complacent.

The case for the European Union was never properly made by any senior politician, because there was no political interest in them doing so.

Parties and politicians thereby competed with each other to be sceptical of the European Union, with opt-outs and renegotiations and what-not.

And the prime minister only won the overall majority in the 2019 general election because opposition parties gifted him a general election on the issue of ‘Get Brexit Done’.

Before that general election, had opposition parties worked together in that hung parliament, it was plausible that there could have been a further referendum.

The prime minister did not create this Remain complacency and confusion, but he took full advantage of it.

Had the forces of Remain, and of liberalism and progressive politics, been less weak the prime ministers opportunism would not have been so successful.

Indeed: the charlatan would have switched sides, and switched columns.

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The rise of the current prime minister is the index of the failure of liberalism and progressive politics: a mirror-image, a shadow.

The more we complain about the prime minister’s principle-free approach to policy, the more we are really complaining about our failure to get the electorate to take a principle-based approach seriously.

As this blog has averred previously, there is no practical point in exposing lies, if the electorate does not mind being lied to.

And the same can be said of corruption: there is no practical point in exposing corruption, if the electorate does not mind the corruption.

The real task therefore for those opposed to the politics of the current prime minister is not just to expose and condemn the lies and corruption – for that is the easy bit – but to get sufficient electors to care about the lies and corruption.

For if that engagement cannot be achieved then we have the prospect of fundamental disconnect between policy and politics – for it would not matter the policy (or lack of policy) of the governing party, charlatans will be politically successful anyway.

And the starting point for those politically opposed to the prime minister is not to see his manifest faults as telling things about him, but also about the failures of those who opposed to him.

Johnson is not really the cause but the consequence of the defeats of 2016 and 2019, but the explanations for those defeats are harder for his opponents to consider.

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From Article 50 to Article 16 – the numbers change, but the lack of thought by the United Kingdom does not

5th November 2021

The government of the United Kingdom looks set to trigger Article 16.

The European Union is currently considering its various options when this much-advertised and threatened action takes place.

And there is little evidence that the United Kingdom has put any thought into what comes next.

The triggering is the thing, you see.

Doesn’t this all seem familiar?

Almost exactly the same as the lack of thought that went into the Article 50 notification.

And the government of the United Kingdom – having had to reverse its madcap attempt to change the commons standards regime – is seeking to disapply yet another set of rules with which it does not want to comply.

None of the current enterprise even has the merit of originality.

The same lack of thought, the same lack of seriousness, the same sheer tomfoolery, and the same drive to not be bound by rules, that are features of so many of this government’s escapades.

We can wonder what the government expects when – eventually – this trigger is pulled.

Perhaps they hope for a frenzy of cathartic exhilaration.

Perhaps puffs of magic.

Who knows.

But unless there is something not obvious to us on the outside, it looks like the government of the United Kingdom may again be wrong-footed and then have to accept whatever the European Union offers to close down the dispute.

Brexit is defined as doing the same thing again and again and expecting a different result, as a famous thinker did not once say.

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We are on the other side of that Brexit line

2nd November 2021

At the time of the important parliamentary votes on Brexit, and during the endgames of the negotiations on the Brexit withdrawal agreement, there was a sense from Brexiters of ‘Get Brexit over the line’.

Everything else was mere detail, which could be dealt with later.

The important thing for many Brexiters was not to waste this one shot.

The longer the delay, and the more there were extension periods, the more there was a real risk that the Brexit project would get reversed.

“Yes,’ was the attitude, ‘just tell us where to sign’.

And now: we are on the other side of that ‘line’ which Brexit ‘got over’.

It is not a happy place, at least for many Brexiters.

This is not what they wanted, even if this is what they signed up for.

But this was the Brexit which was possible at the speed they wanted Brexit to ‘get done’.

Given this eventuality, there are two possible reactions for those ‘over the line’ Brexiters.

One is to admit that this is all the price that was to be paid for Brexit to happen at all.

The other is to deny that that this was what was agreed and to say that Brexit should be on another basis.

If I were a Brexiter I would be glad that departure actually happened – after the delays and extensions and the loud campaign for a further referendum.

It was not so long ago that the 2019 general election was in the future and a hung parliament had control and, but for the failure of opposition leaders to agree, there would have been a further referendum.

The attempts now by Lord Frost and others are to re-argue positions that failed to get into the withdrawal agreement.

Positions that, had they been adhered to at the time of the Brexit negotiations may have meant no departure at all – as parliament had decided against a no-deal departure.

Trade-offs had to be made to get Brexit across that line.

And now that line is behind us.

This was the price they paid to get Brexit.

And it was not inevitable, given the politics of the 2017-19 parliament, that they would have got Brexit done at all.

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All because Article 16 is a thing you can trigger, that does not make it a gun (continued)

30th October 2021

Article 16 of the Northern Irish protocol is the news, again.

There are breathless news reports that it is about to be ‘triggered’.

The use of ‘to trigger’ as a verb – like, say, ‘to activate’ – makes it sound rather dramatic.

And certain political and media types are indeed building up a sense of occasion.

The triggering of article 16 is becoming a political virility test.

One can imagine a minor character in a science fiction or superhero comic with ‘Article 16 has been triggered’ as their one line of dialogue, with the next frame of the story the horrified or bewildered faces of the major characters.

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And perhaps Article 16 will be triggered – and that the government really, really means it this time.

Perhaps the triggering of the article will precede some political deal between the United Kingdom and the European Union.

But the one thing that will not directly happen is anything that formally warrants this giddy excitement.

For, as this blog has averred (here, here and here), triggering Article 16 means that the United Kingdom and the European Union enter into discussions in respect of ‘safeguarding’ measures for the Northern Irish protocol.

And any safeguarding measures have to meet strict and objective requirements and cannot have any wider or longer effect than necessary.

Article 16 is a useful feature of the protocol – but it really does not, on its actual terms, live up to this star billing.

Well, as far one can see when as looking at this as a lawyer.

Of course, the usual proviso of any law and policy commentary is that law and politics are not the same thing.

And parties can say they have met with triumph and disaster unconnected to any actual process, and those in politics and media will chap or jeer accordingly.

But.

Looking at Article 16 calmly it is difficult to discern how it corresponds with the current political hyperventilation.

Someone, somewhere is missing something.

 

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Why the United Kingdom needs a new post-Brexit negotiator – but also needs a new post-Brexit politics

26th October 2021

If the United Kingdom government is to get anywhere with its post-Brexit policy – ‘to make progress’ is a loaded phrase – then it needs to consider appointing a new head negotiator.

This proposition seems to be true on any sensible view – for the current situation is not good even for those who want Brexit to work in practice.

When the current negotiator – David Frost – was appointed as a minister this blog was supportive.

There was merit – it seemed to me – in the person responsible for the conduct of Brexit negotiations being formally responsible to parliament, even if it is to the house of lords.

There also seemed to be merit in the person being appointed having detailed knowledge of the two Brexit agreements, the withdrawal agreement and the trade and co-operation agreement.

And Frost’s background as a diplomat in the European Union meant he should have an understanding of the various tactical and strategic means of securing the United Kingdom’s objectives.

But.

That positive view was misconceived.

The core – inescapable – problem is that Frost is now reduced to dumping on the negotiated text he himself was responsible for negotiating.

It may be (conceivably) in the United Kingdom’s interests to vary or otherwise address what was agreed – for circumstances can change, and what was agreed may not have been fully understood.

But when that is the situation, the reversal cannot credibly be handled by the very person who not only negotiated but also commended what was agreed.

And the lack of credibility goes further: as there will be the suspicion that what is being loudly said now is not in the United Kingdom’s interest, but in the interest of the negotiator covering his back for having negotiated something that they now regret.

Put simply: if the United Kingdom’s current position has any merit then it needs a fresh negotiator, who has no political capital sunk in the previously agreed texts.

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And this freshness is needed more generally.

It may be that the United Kingdom will not achieve a great deal in post-Brexit negotiations until and unless we not only have a new post-Brexit negotiator but we also have a new generation of politicians in positions of power (and of opposition).

For, like the political equivalent of a historical reenactment society, we seem destined to keep on fighting the battles of 2016.

There needs to be a wider move away from justifying (and criticising) Brexit in principle, from the politics of defence (and attack), to dealing with Brexit as it is and is likely to remain for at least five-to-ten years, if not longer.

For this to happen will mean that both Brexiters and Remainers/Rejoiners have to move on from the rigid, absolutist partisanship of the last five years.

This seems unlikely to happen.

But just as we need a new post-Brexit negotiator, we need a new way of approaching post-Brexit more generally.

Else we will keep getting the post-Brexit negotiators that our political culture perhaps deserves.

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