This The New European cover captures the current predicament of the current United Kingdom in respect of migration.
On one hand, the government is strident in its attempt to exclude migration.
Brexit-supporting politicians boasted about ending ‘freedom of movement’ as an end in and of itself.
(It always seemed odd to hear those boasts about ending freedoms – as if ending a freedom was something to be proud about.)
The current home secretary loudly wants, as a matter of policy, to deter cross-channel migration – a policy aimed at and appreciated by those who clap and cheer at such things.
And on the other hand, we not only have damaging self-inflicted labour shortages – we also now have a significant reversal of policy.
The United Kingdom government has realised – in perhaps the first of what will be a telling sequence of realisations about Brexit in reality – that ending freedom of movement causes serious problems as well as prompting claps and cheers.
*
One of the causes of this situation is that that those who wanted to suddenly and drastically end migration had no grasp of what would happen in practical, messy reality.
Brexit was (and remains) a political attempt at treating a complex problem as a simple problem.
And so we keep bouncing between the fantastic realm of slogans and the mundane world of reality.
Here the government’s reversal of some visas (the applications for which will be tied up in red tape) may not even work as a policy change.
If so, then such an abrupt reversal may not be enough to solve the problem this government has created for itself – and for us.
And if there is to be a sequence of realisations, where Brexit slogans – one can hardly call it an ideology – do not match Brexit reality, then the government will find that quick-fix reversals will not work either.
It is one thing to realise that reality does not match up with your slogans, but it is another to realise that no policy reversal will match up to the policy mistake you have made.
And so we may end up with a bunch of stressed, washed-out, desperate and directionless politicians – facing the question: can any of you drive a policy?
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In essence: triggering the article means a formal process will begin which may enable the United Kingdom and/or European Union to take ‘safeguard’ measures to protect the operation of the Northern Irish protocol.
On the face of it, Article 16 is not about ‘suspending’ the Northern Irish protocol but about repairing and thereby protecting the functioning of the protocol.
All because Article 16 can be ‘triggered’, that does not make it a gun.
But.
Law and politics are different things.
And sometimes legal processes can be commenced as a cover for (or as an accompaniment of) political manoeuvres.
This possibility was highlighted last week by the sagacious Steve Peers:
I wonder if the government plan might be to trigger Article 16 on the assumption that it won't really be used, ie there would be a deal during the consultation period.
Maybe the European Union too would welcome the triggering of Article 16 so that it can move to a position that it may not be to adopt without such political and legal cover.
Maybe.
But even taking this political possibility at its highest, there remains the fact that the Article 16 process in and of itself is not intended to be a route for suspending the protocol but for (as it says expressly) safeguarding it.
And it is against this background we come to yesterday’s infantile tweet from the United Kingdom minister David Frost:
The Protocol is clearly having a continued negative effect on everyday life & business in Northern Ireland.
The outstanding issues now need to be dealt with urgently. I and my team are in contact with the EU daily, but we need a full response to our July Command Paper soon.
As Frost was the United Kingdom politician who actually negotiated and endorsed the agreement containing the protocol, it is an especially pathetic plea.
And those in Northern Ireland who benefit from access to the single market, while the rest of the United Kingdom face all manners of shortages, may not agree that the protocol is having a negative effect.
(And also the ‘clearly’ is also a tell – politicians tend to use the word when a thing is not clear.)
But the first sentence of the tweet looks as if the government is seeking to frame the issue as meeting the seriousness criterion for triggering Article 16.
Maybe they will.
Maybe.
*
If the United Kingdom government triggers Article 16 – and the United Kingdom government has done dafter things regarding Brexit – there will no doubt be claps and cheers.
And – and this should not be discounted – the Article 16 process could result in a political deal.
But what is not intended to happen is that the process, by itself, leads to the suspension of the protocol.
And if that is what the United Kingdom government is banking on, then this will turn out to be another needless misadventure in the story of Brexit.
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Yesterday United States President Biden spoke about his concern about a possible change to what he called ‘the Irish Accords’.
From the context of the question and answer, Biden meant the Good Friday/Belfast Agreement – though the question was framed in terms of the Northern Irish Protocol of the Brexit withdrawal agreement.
The question and answer are here and you should watch and listen for yourself:
You will see in the tweet above that the estimable Sonya Sceats, the chief executive of Freedom from Torture, avers that the exchange is a life line for the Human Rights Act 1998.
Is she right?
And what is the connection between that exchange and the Human Rights Act 1998?
In respect of the European Convention on Human Rights (ECHR), the agreement says the following:
‘There will be safeguards to ensure that all sections of the community can participate and work together successfully in the operation of these institutions and that all sections of the community are protected, including […] the European Convention on Human Rights (ECHR) and any Bill of Rights for Northern Ireland supplementing it, which neither the Assembly nor public bodies can infringe, together with a Human Rights Commission [and] arrangements to provide that key decisions and legislation are proofed to ensure that they do not infringe the ECHR and any Bill of Rights for Northern Ireland’
and
‘The British Government will complete incorporation into Northern Ireland law of the European Convention on Human Rights (ECHR), with direct access to the courts, and remedies for breach of the Convention, including power for the courts to overrule Assembly legislation on grounds of inconsistency’.
*
These passages are explicit: the ECHR is a ‘safeguard’ and the ECHR has to be enforceable in the courts of Northern Ireland.
The agreement does not expressly mention the Human Rights Act 1998 – not least because that legislation had not yet been passed at the time of the agreement.
But one of the things that the act does in respect of Northern Ireland – as well as for the rest of the United Kingdom – is to make the ECHR enforceable directly in the courts.
This is instead of requiring a party seeking to rely on the ECHR to petition the European Court of Human Rights in Strasbourg, as was the position before the act took effect.
Of course: you do not – strictly – need the Human Rights Act 1998 to be in place to fulfil the express requirements of the Good Friday/Belfast Agreement, as long as the ECHR remains enforceable locally in Northern Ireland.
But if the Act were to be repealed – which is a long-term goal of the new lord chancellor and justice secretary Dominic Raab – then there would need to be replacement legislation in place the very day the repeal took effect for ECHR rights to remain directly enforceable in the courts of Northern Ireland.
*
So does this mean the Human Rights Act 1998 is safe?
I am not so sure.
I averred on this blog when Raab was appointed (and I am sorry to quote myself):
‘And one would not be surprised that one stipulation made by Raab in accepting the position as lord chancellor is that he get another crack at repealing the human rights act.
‘If so, then the act will probably be repealed – though there will no doubt be a less strikingly (and provocatively) entitled ‘European Convention on Human Rights (Interpretation and Incorporation of Articles) and Related Purposes Act’ in its stead – not least because the Good Friday Agreement provides that the convention has to be enforceable in Northern Ireland.’
Having seen the exchange with Biden, I am now wondering if my (dismal) view is correct.
A wise government of the United Kingdom will be anxious not to give the slightest indication that anything related to the Good Friday/Belfast Agreement was up for any change – and continuing local enforcement of the ECHR is an express provision of that agreement.
A wise government, concerned about its relations with the United States, would thereby not touch the repeal of the Human Rights Act 1998 with a barge pole.
It would just take one credible complaint that the Good Friday/Belfast Agreement was at risk, and there would be an international problem.
Repealing the Human Rights Act 1998 would not be worth these risks – especially as it would have to be replaced immediately with legislation having the identical effect in respect of Northern Ireland.
But we do not have a wise government – we have a silly government.
And given the long-term obsession of the new lord chancellor with repealing the Human Rights Act 1998 – and that this may even be a reason for why he accepted his political demotion – one can see the repeal (and its immediate replacement) still going ahead in symbolic form – even if not in much substance.
*
But the politics of symbolism does not just have one direction.
Against Raab’s fixation with the symbolism of repealing the Human Rights Act 1998 is the transatlantic symbolism of doing anything that could remotely affect the Good Friday/Belfast Agreement.
So it may be that Sceats’ view is correct – and the Human Rights Act 1998 is safer than before.
But, on any view, repeal seems an unwise political path to take, given how much politically – and how little legally – is at stake.
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The Brexit minister David Frost has said that he is considering triggering article 16 in respect of the ongoing discussions between the United Kingdom and the European Union.
Lord Frost with very punchy words on the NI Protocol in the Lords tonight:
EU would be “making a serious mistake” if they thought the UK wasn’t ready to trigger Article 16
There must be a “real negotiation,” not EU saying presenting their proposals as “take it or leave it”… pic.twitter.com/RbjyryrPLW
The blogpost below is based on an extract from an earlier longer explainer posted on this blog back in January 2021 (when the European Commission clumsily and perhaps inadvertently seemed to trigger article 16 and then promptly untriggered it).
*
Let’s begin with what is an ‘article’.
One of the blessings of Brexit is dealing with ‘articles’ of international legal instruments – most famously article 50 of the treaty on European Union.
The word ‘article’ is somehow grander than the more mundane ‘section’ and the everyday ‘clause’.
Indeed articles tend to be more self-contained as legal provisions – sometimes like micro legal instruments within macro legal instruments like treaties.
And article 16 – together with a dedicated annex – is such a micro legal instrument.
*
Article 16 is part of the Northern Irish protocol, which in turn is a protocol to the withdrawal agreement.
Instruments within instruments within instruments.
Article 16 provides in its entirety (and you should read every word, as they will matter): In essence: the ‘if [x] then [y]’ here is ‘if [there are certain difficulties in the application of the Northern Irish protocol] then [appropriate safeguard measures can be taken]’.
*
The article is entitled ‘Safeguards’ – but straight away you will see that the provision is itself subject to its own safeguards – and this is important because, as you can see, what is or can be a ‘safeguard measure’ is not defined.
First.
In paragraph 1, the trigger for the safeguards has to be a serious situation that is likely to persist.
Second.
It then provides that any safeguards will be ‘restricted’ to what is ‘strictly necessary’ for the purpose of remedying that particular serious situation.
Third.
And ‘priority’ shall be given to what measures that cause the least disturbance.
One, two, three.
So: triggering article 16 does not mean anything goes.
Anything Frost proposes will have to meet these three substantive tests.
*
And there is more.
In paragraph 2, any imbalances caused by the uses of the safeguards can be addressed with counter measures: so the article is not a unilateral tool.
If the United Kingdom takes measures under article 16 then the European Union can take countermeasures too.
Paragraph 3 then states that a prescribed process has also to be followed, as set out in an annex.
Strictly speaking: triggering article 16 does not trigger the right to take safeguard measures, but triggers a process that may in turn lead to such measures.
The annex supplements the substantive conditions on the use of Article 16 safeguards with procedural protections (and, again, this provision should be read in full): In essence: notification, talking shop, delay for a month, adoption of measures, further notification, regular consultations on measures, reviews of the measures.
Even in the event of ‘exceptional circumstances’ under point 3 of this annex, there is still a procedure to be followed.
Safeguards within safeguards within safeguards, and so on.
Article 16 ain’t no weapon – it is a remedial tool.
It really is not something to ‘threaten’.
*
In summary: invoking article 16 is not to be done casually or by mere oversight.
There are many substantive and procedural conditions to be fulfilled before it can be invoked.
And unless those conditions are met, then article 16 measures are not available.
Even when all the conditions are met, the scheme of the article and the annex is that there would be a collaborative review-and-consultation to the use of the measures.
All this is – or should be – obvious from the title of the article: ‘Safeguards’.
And not Reprisals.
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Like a bouncing ball we go from the high slogans to the low mundane – or grim – reality of Brexit.
Take, for example, this from businessman and former politician Archie Norman:
M&S chair Archie Norman has branded EU border rules "pointless". Tells @NickFerrariLBC food products to France and Ireland delayed by day. "This is a pointless bureaucratic exercise", "these rules serve no purpose at all – our food standards are higher than the EU 1/
– leaving the single market was and is ‘pointless’.
For what Norman here describes as “pointless” is the direct, natural and necessary consequence of both taking back control and leaving the single market.
What he describes is Brexit in its everyday reality.
This is what the slogans really meant when converted to actual practice.
*
Here is another example, for the great immigration law expert Colin Yeo:
The supposed “turn-around” policy for migrant boats is similar to previous reports of wave machines or floating fences. It sounds tough but will never be implemented, says @ColinYeo1. https://t.co/FXStug1Oy8
In essence: if the French don’t cooperate, then the home secretary’s’s ‘turn around’ migrant boat policy is not only vile and inhumane – it cannot actually work.
Again, this is the reality of taking back control.
*
Both the examples above are crash-courses in the value of multilateralism in a complex world – and of the banality of autarchy.
By taking back control the United Kingdom has lost the means of exercising control – whether it is the terms of trade, or its borders, and so on.
And this is not a surprise.
For taking back control exists on the plane of slogans and not on the messy plane of reality of the world in which we live.
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Once ‘euro-scepticism’ was a big thing in British politics.
Parties and politicians, as well as the media, competed with each other to be disdainful of the European Union project, but without calling for outright departure.
Anyone with an absolute view on the merits of the United Kingdom’s membership of the European Union were regarded as marginal if not eccentric – whether ‘pro’ or ‘anti’.
The conservative party, for example, had a steady stream of defections to the liberal democrats of ‘pro-EU’ politicians, and the referendum party came and went.
But about ten years ago ‘euro-scepticism’ disappeared, to be replaced by those seeking outright departure.
Why did this happen?
Well, one possibility is – paradoxically – the European Union stopped pushing for more powers and competencies.
To an extent ‘euro-scepticism’ was reactive: a response to treaty after treaty of expansion: Maastricht, Amsterdam, Lisbon.
And once the treaties stopped, then ‘euro-scepticism’ stopped – for it did not serve the purpose of a brake.
There still has not been a major European Union treaty since Lisbon, signed in 2007.
In respect of major treaties, the European Union has been in a steady state since Lisbon.
And when the movement to ever close union ended – at least at treaty level – then British ‘euro-scepticism’ flipped into Brexiteering.
There were, of course, many other factors around ten years ago that contributed to Brexiteering.
But one cause must have been the collapse in ‘euro-scepticism’.
Few in 2016 wanted to ‘be in Europe but not run by Europe’ – as the old slogan said.
And ‘euro-scepticism’ was never a positive message such would win a binary referendum.
Not many would vote Remain because it offered only mild opposition to the European Union as opposed to Leave’s explicit hostility.
Polarisation on the European Union question did not suit the tradition of ‘euro-scepticism’.
But.
It can also be averred that ‘euro-scepticism’ had been successful – that is, if success is taken to mean a sequence of secured outcomes.
The United Kingdom had secured the benefit of opt-outs – from the Euro and freedom of movement to justice and home affairs.
On this basis, it is hard to say ‘euro-scepticism’ was a failure.
But opt-outs can only take you so far without touching upon the ultimate questions of membership.
By 2015 there was little left to opt out from.
The ‘re-negotiation’ was a flop.
So perhaps ‘euro-scepticism’died in part because there was no longer anything left that it could achieve.
And also perhaps because that before 2015 it had been too successful.
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I was once a central government lawyer for two-and-a-half years, dealing with public procurement, freedom of information and general commercial matters.
And one of the tasks I had was to support the United Kingdom (and thereby European Union) negotiators on the revision to the WTO agreement on public procurement.
This was exciting: international trade law!
How wrong I was.
In the two-and-a-half years I assisted on the the revision to the WTO agreement on public procurement, I do not think the negotiation moved forward substantially one jot.
“Not long after the implementation of the GPA 1994, the GPA parties initiated the renegotiation of the Agreement according to Article XXIV:9 of the 1994 Agreement. The negotiation was concluded in December 2011 and the outcome of the negotiations was formally adopted in March 2012.”
So: 1994 to 2012.
Eighteen years – to revise an agreement already in existence and the revision of which most parties to the agreement broadly were in agreement with.
Eighteen years.
My two-and-a-half years was in the middle of that period, and that period were not much more than a splash in a river.
Negotiators came and went for all parties, and one suspects there was not anyone engaged with the end of the agreement who had been concerned with it from the beginning.
The one thing I learned was that international trade and commercial agreements can be slow: very slow.
*
But international trade and commercial agreements can also be quick: very quick.
One way that can be quick is if they are rollover agreements, a copy-and-paste of what was in place before and which all the parties are happy with.
Another way is to just accept what is on offer and to drop any demand which will not be met.
Such capitulations can be done very quickly indeed.
And so here is today’s news:
Sky News can reveal that ministers have agreed to drop binding commitments to the Paris climate change agreement from the UK-Australian post-Brexit trade deal
Of course: a trade agreement with Australia sounds very glamorous.
The sort of news that would make certain people gladdened just because of the anglophone, commonwealth connotation.
But a new trade agreement entered into at speed, other than a rollover, will tend to be to the disadvantage of one party and not the other.
Any trade deal that is worthwhile for both or all sides will not be done at speed.
We were once told that ‘no deal’ was better than a ‘bad deal’ by those who now clap and cheer at any deal.
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‘The difficulties come from the way the Protocol is constructed, not just the way it is being implemented.’
This sentence is not only key, it is crucial.
Of course, it is not enough for those who are sceptical of (or hostile to) the government’s Brexit policy to jeer that ‘you signed it’.
The onus is on anyone interested in the matter to be as constructive as possible – even if that is to resolve the mistakes of others.
But.
But but.
But but but.
It has to be said that this protocol was not only signed by this government, it was negotiated by this government.
The protocol is within an agreement for which this government campaigned for and obtained a mandate.
The protocol flows even from a change of policy made by this government against the ‘backstop’ policy of the previous prime minister.
And the person for the United Kingdom who was primarily responsible for negotiating and thereby the content of the protocol?
David Frost.
The problem we have now as a nation is that International agreements – like other legal agreements – cannot be set aside just because of a ‘bad bargain’.
Let the buyer beware, says the maxim.
Else there will be buyer’s remorse.
If a party to a negotiated agreement does not want to comply with a certain provision, then that party should not sign that contract.
For once it is executed, it is binding, for that is the intention of legal agreements.
We all know the rushed circumstances of how the United Kingdom signed the agreement.
And that time pressure was entirely self-inflicted – by the United Kingdom government.
It was as preposterous a situation then as it seems now.
But supporters of Brexit clapped and cheered at the time, and hailed ‘Brexit getting done’.
And now the government is stuck with what it signed.
Yes: one should be constructive if one can be as a critic of the government’s predicament.
But ultimately the government has to brace itself that it will have to comply with what it freely agreed to.
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Some would say that the story of the departure of the United Kingdom begins with the founding of the European Economic Community itself, or even of the European Coal and Steel Community.
For even then the supranational approach that the United Kingdom was to find so repugnant was obvious (see here).
Others can point to the accession of the United Kingdom to the European communities in 1973 or (a view with which I have sympathy) the treaty of Maastricht of 1992.
More recent start dates would be the referendum of 2016 or the timing and circumstances of the Article 50 notification in 2017.
It depends on the nature of the story you want to tell.
*
This post looks at another starting-point.
The ‘Bloomberg speech’ of then prime minister David Cameron in January 2013.
Cameron, of course, is now little more than a pantomime villain in the story of Brexit, reduced to texting ministers and officials for commercial favours while the audience groans and hisses.
And the prospect of reading – still less sitting through – an old Cameron speech may not be a welcome one.
But.
This 2013 speech, when taken together with the ‘renegotiation’ of 2015-16, shows fault lines that later shaped how Brexit evolved in practice, and it is worth looking back at.
To the extent the speech is remembered now – if it is is remembered at all – it is because it contained the promise by the head of the then coalition government of an ‘in/out’ referendum, in the event that the conservatives won outright the next general election.
And that announcement is of significance as, unlike many political promises, it was carried out.
But also of significance is the framing of the announcement – what the speech did and did not say.
*
One premise of the speech is that the referendum would be tied to a ‘renegotiation’ which, in turn, envisaged treaty changes for the benefit of all member states.
It would be this new ‘settlement’ that would then be promoted as part of the referendum campaign.
To the extent that there is a fundamental critique of the European Union it is in terms of ‘sovereignty’ and the ‘gap between the EU and its citizens’.
And to the extent that there is a detailed practical critique it is about the ‘unfair’ relationship between Eurozone members and member states such as the United Kingdom that were not part of the Eurozone.
The speech has structure and coherence – and, after the experience of Theresa May and then Boris Johnson, it is a strange feeling to read a prime ministerial speech that has structure and coherence.
*
But.
There is a lot missing.
There is not a single mention of immigration – even though by the ‘renegotiation’ of 2015-16 this had become a perceived political priority.
This is because although the Eurozone crisis had begun, the perceived migration crisis (and the rapidly increasing domestic political support for UKIP) was in the future and as yet unknown.
Some now contend that Brexit was always about immigration and migration and ‘taking control’ of our borders – yet the issue is not mentioned once in the major speech that initiated the political process that led to the referendum.
There is also not a mention of ‘freedom of movement’ or indeed any of the ‘four freedoms’ that the European Union aver are integral to the single market.
For Cameron and the United Kingdom, the single market could be discussed and extolled without any reference to the foundational principles of that market.
It was almost as if the same single market was different things to the United Kingdom and to the rest of the European Union, described in different ways, and with each side talking past the other.
Ireland gets one brief mention – and is bracketed with the United Kingdom for having border controls against the rest of the European Union.
But there is nothing at all about how the single market and shared membership of the single market and the customs union meant there was no need for a regulatory or customs border on the island of Ireland.
There is also nothing about how shared European Union membership provided a solution to the hard political problems of the Irish border (and similarly there is no mention of Gibraltar either).
*
And there is a complacency about treaty changes – an assumption that the fundamental reforms to the European Union that could only come about by amending the treaty texts would be an easy task in a tight time frame.
The referendum was to be in the ‘first half’ of the next parliament – in effect the entire process of renegotiation and referendum would need to take place between 2015 and 2017.
Looking back from 2021, we now know that there has been no new European Union treaty at all – the last general treaty is still that of Lisbon in 2007 – and there is no appetite for a new treaty and the politics it would entail.
But without treaty changes there was a severe limit to what could be achieved in a negotiation, especially against a strict deadline.
And so – unsurprisingly – the ‘renegotiation’ was damp and squibby.
*
The Bloomberg speech revealed a lack of realism about what could be achieved from the beginning of the ‘renegotiation’ process, with expectations raised that could not be fulfilled.
And this had a significant political consequence.
For, from the very beginning of the referendum process, the government made no positive case for the United Kingdom to be part of the European Union as a matter of principle.
The government’s case was instead to be for the United Kingdom to remain part of the European Union on renegotiated terms and as part of a new overall settlement.
But when those renegotiated terms fell flat, and the new overall settlement failed to come into existence, then the government had nothing positive to argue and campaign for.
Indeed, given the lacklustre government campaign – directionless after the failure of the ‘renegotiation’ – it is remarkable that the referendum was as close as it was.
The government’s own run-up to the referendum, from the announcement of the referendum onwards, had been misconceived.
And you can see why this was by reading what was in – and what was not in – the Bloomberg speech of January 2013.
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The strongest argument for Brexit, if not the only one, was that it would enable the United Kingdom to have laws and policies regardless of our obligations under the treaties of the European Union.
Many – including you – will probably not think of that as much of an argument – and, indeed, it is not much of an argument.
But at least it is an argument which is internally coherent: as a member of the European Union the United Kingdom was subject to its European Union treaty obligations, and as a non-member, we are not.
To get from [x] to [y] could only be done by the means of Brexit.
The other arguments do not even make sense as a matter of internal logic.
For example, the argument from sovereignty did not make sense: the United Kingdom had sovereignty all along, else it would not have been able to make an Article 50 notification and repeal the European Communities Act.
And the argument of practicality also does not make sense, for even though we are no longer subject to its European Union treaty obligations, it appears that there is not any advantage to having this new freedom.
And, as this blog recently averred, there is no good reason for the United Kingdom to diverge from the European Union data protection regimes – and many good reasons for us not to do so.
So the United Kingdom did not need to do Brexit to regain sovereignty (as we already had it and never lost it) nor did United Kingdom need to do Brexit to make any substantial policy changes, as we do not seem to need to change policies.
As is often said, the post-Brexit United Kingdom really is the dog that caught the bus.
Yes: the United Kingdom can now have laws and policies regardless of obligations under the treaties of the European Union.
But there does not seem much point.
What a pointless thing to have done.
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In essence: the ‘if [x] then [y]’ here is ‘if [there are certain difficulties in the application of the Northern Irish protocol] then [appropriate safeguard measures can be taken]’.
In essence: notification, talking shop, delay for a month, adoption of measures, further notification, regular consultations on measures, reviews of the measures.