Category: Communications and Media & Law and Policy

The last of the legal correspondents, and the true crisis in the public understanding of law

3rd January 2021

At the end of last year two legal correspondents retired.

Owen Bowcott at the Guardian:

And Clive Coleman at the BBC:

It is an end of an era.

Yes, there are still full-time legal correspondents in the United Kingdom: at the Times and at the Financial Times.

But in both those cases the journalism is behind a paywall – and that is not an accident, as funding full-time specialised correspondents in any area is an expensive business, and if you want good specialised journalism in this internet age you do have to pay for it.

With the retirements of Owen Bowcott and Clive Coleman there is now no longer (as far as I am aware, and I would be delighted to be corrected) any full-time specialised legal correspondent at any news provider whose reporting is available generally to the public.

The nearest we have is Joshua Rozenberg, who is not exclusively attached to any news organ, providing reportage and comment at a number of titles and now on his own blog.

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Does this matter?

This demise of the legal correspondents comes at the same time where an understanding of how law works is as – if not more – important than ever.

Without legal correspondents it will be left to generalist journalists to report on, say, high-profile legal cases and the legal aspects of government policy.

And this in turn will increase the influence of (so-called) litigation PR specialists (who effectively provide copy to the media favourable to their clients involved in legal cases) and ministerial special advisers leaking spin-ridden and distorted accounts of law-related policy.

This is not to say there are not good generalist journalists reporting on legal matters but to observe that there will be an imbalance between the time-poor reporter without a bank of expertise and the well-resourced or well-informed but highly motivated source.

Having a specialised legal correspondent at a news title who was not reliant on PR or governmental sources meant there was detachment and reliability in their reports from court and the frontline of legal activity.

And this has now gone.

Something has been lost, and it will not be regained.

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The demise of the legal correspondents, however, comes at a time where reliable legal information is more freely available than freely before.

In the United Kingdom, for example, legislation is set out at the legislation.gov site and jusdgments at the BAILII site.

The Supreme Court has an outstanding site that not only provides case reports but also summaries and other useful information, and the UK judiciary site provides not only newsworthy case reports but also the judges’ sentencing remarks in high-profile and controversial cases.

It has never been easier for the spirited citizen to gain information about the law and to understand its application in particular examples.

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But.

Few lay people will bother – as screens full of dry text are daunting and the law is (or at least looks) complicated.

A screen suddenly full of legal verbiage is as scary or bewildering to a lay person as a page suddenly full of source code.

Legal information may well be free to all – but unless you have relevant experience and know your way round legal instruments and other legal documents, such access is only of theoretical value.

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But what of legal bloggers and tweeters?

Surely they (we) can step in and fill the gap between the law and the public understanding of law?

Here there are two problems.

Many leading legal bloggers and tweeters are of two types.

First, there are the legal academics – and many are as brilliant in explaining substantive ‘black letter’ law to lay people as they are to their lucky students.

But the academic exposition of substantive law is only one aspect of the public understanding of law – few legal academics will report from the courtroom in trials where there is little of academic interest, nor will they be routinely invited to Whitehall press briefings, nor develop sources such as judges and practitioners just for providing news.

And, analysis and commentary – however outstanding – is not the same as reportage.

Much the same can be said of the second group of legal bloggers and tweeters – legal practitioners such as barristers (and a few solicitors).

The additional problem with this second group is that – even more than academics who often need to show ‘outreach’ – such legal communication is voluntary and often haphazard.

Blogging and tweeting barristers (and solicitors) are not paid for explaining the law to the public and – with controversial legal topics – not compensated for the hassle and abuse they will get.

There will be uneven coverage – a lawyer will tend to only write about matters as and when they feel they have something to say about something they know about – and so this can lead to some areas of law being over-represented and other areas of law being neglected.

Blogging and tweeting lawyers  – both academics and practitioners – are a boon to the public understanding of law – but they (we) are no substitute for specialised full-time legal correspondents dealing with law-related news stories as they emerge on any topic, with detachment and perspective.

For that you need, well, full-time specialised legal correspondents at news organisations – and they are coming to an end.

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But there is an even more disconcerting problem, at this time of hyper-partisanship, ‘post-truth fake news’, and populism.

In the United States there are still many specialised courts and legal correspondents – and they have been diligent in exposing and reporting on the various abuses of law and legal process by President Donald Trump and his allies.

Each presidential assault on constitutional and legal norms in the United States has been documented and explained.

And it has made very little difference.

Many people do not care.

As this blog averred on New Year’s Eve – there is no point in the observant Benjamin the Donkey in Animal Farm being more public-spirited, if the other farm animals would not have cared less.

And so, in the United kingdom, even if every news title had a squadron of legal correspondents detailing the many abuses and misuses of law from this supposedly ‘law and order’ government then – looking at the United States – there is no reason to believe it would make any difference.

This, therefore, is the crisis in the public understanding of law referred to in the title of this blogpost.

The crisis is not that we are at the end of specialised reporting of legal news.

The crisis in the public understanding of law is that most of the public do not want to understand law.

A significant portion of the public do not want to understand the law, or care about how the law is misused or abused.

And how do you promote the public understand of law when so few of the public care?

*****

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The four ways the government of the United Kingdom is abusing and misusing the law – and the reason the government is getting away with it

2nd January 2021

Those with political power tend to want more power, and those who want more power will tend to then abuse it.

This is not a new observation, and it is perhaps one which can be made of most if not all human societies.

The role of law and government is thereby not so often to enable such abuse of power, but to acknowledge the likelihood of abuse and to seek to limit or prevent it.

That is why those with power are often subject to conventions and rules, why there can be checks and balances, and why many political systems avoid giving absolute power to any one person.

That those with power want to use, misuse and abuse that power is not thereby a feature of the current government of the United Kingdom, but a universal (or near-universal) truth of all those who seek and have political power everywhere.

Those with political power will tend to try and get away with misusing or abusing it.

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The current government of the United Kingdom, however, is remarkable in just how open it is in its abuse and intended abuse of law, and in at least four ways.

And what is also striking is what has changed politically so as to enable them to be so open.

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First, the current government sought to give itself the power to break the law.

This was in respect of the Internal Markets bill, and the ability to break the law was stated as the intention by a cabinet minister in the house of commons.

This proposal led, in turn, to the resignations of the government’s most senior legal official and a law officer in the house of lords.

And then it was even supported by a majority of the house of commons.

The proposal has now been dropped – and some would say that it was only ever a negotiating tactic.

But even with this excuse, it was an abuse of legislation and legislation-making, requiring law-makers to become law-breakers, and signalling to the world that the government of the United Kingdom does not take its legal obligations seriously.

There was no good excuse for this exercise.

Yet the government sought to do it anyway.

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Second, the government of the United Kingdom is seeking to place itself, and its agents, beyond the reach of the law.

This can be seen in two bills before parliament: one effectively limiting the liability of service personnel for various criminal offences, including for torture and other war crimes, and the other expressly permitting secret service agents to break the law.

 

From one perspective, these two proposals simply give formal effect to the practical position.

It has always been difficult to prosecute members of the armed services for war crimes.

And domestic secret service agents have long relied on the ‘public interest’ test for criminal activity (for any criminal prosecution to take place there are two tests: whether there is sufficient evidence, and whether the prosecution is in the public interest, and guess who routinely gets the benefit of the latter).

And secret service agents abroad have long had legal immunity back in the United Kingdom, under the wonderfully numbered section 007 of the Intelligence Services Act 1994.

The primary significance of these two current proposals is that the de facto positions are being made de jure.

The government believes (rightly) that it can legislate to this effect and get away with it.

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The third way – when the government cannot legislate to break the law or to make it and its agents beyond the law – is for the government to legislate so as to give itself the widest possible legal powers.

Again, this is not new: governments of all parties have sought wide ‘Henry VIII clauses’ that enable them to bypass parliament – legislating, and amending and even repealing primary legislation by ministerial decree.

But what is new here is the scale of the use of such legislation – both the pandemic and Brexit have been used as pretexts of the government to use secondary legislation for wide ranging purposes – even to limit fundamental rights without any parliamentary sanction.

And as I have argued elsewhere, there is no absolute barrier under the constitution of the United Kingdom to an ‘enabling act’ allowing ministers to have complete freedom to legislate by decree.

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The fourth way is the flip-side of the government seeking more legal power.

The government is seeking ways to make it more difficult, if not impossible, for it to be challenged in the courts.

This can be done formally: by reducing the scope of judicial review or the reach of the laws of human rights and civil liberties, or by ‘ouster’ clauses, limiting the jurisdiction of the courts.

It can be done practically (and insidiously): by creating procedural impediments and by cutting or eliminating legal aid for such challenges.

It also can be achieved by the government either promoting or not challenging attacks on the judiciary and the role of courts in holding executive power to account.

If the government cannot break the law, or make itself immune to the law, or give itself wide legal powers – it certainly does not want citizens to be able to challenge it.

Of course, this impulse is also not new – and examples can be given of governments of all parties seeking to make it more difficult for legal challenges to be brought.

But again, what is different from before is the openness of these attempts.

There is no self-restraint.

The government is going to get away with as many of these barriers as it can.

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The big change is not that those with political power want to abuse it – and to stop those who can check and balance that abuse.

That is a problem no doubt as old as law and government itself.

What is remarkable is how the United Kingdom government is now so brazen about it.

The government just does not care about being seen doing this – and if there is any concern or even outcry – that is regarded as a political advantage.

The ‘libs’ are ‘owned’ and those with grins will clap and cheer.

In this current period of hyper-partisanship there is no legal or constitutional principle that is beyond being weaponised.

What perhaps restrained the United Kingdom government – and other governments – from being so candid in their abuses and misuses of power was once called ‘public opinion’.

People cared about such things – or at least those in government believed people cared.

But, as this blog averred on New Year’s Eve, what happens if a public-spirited donkey does tell the animals on the farm that power is being misused or abused – and the animals still do not care.

‘The animals crowded round the van. “Good-bye, Boxer!” they chorused, “good-bye!”‘

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And this brings us back to the key problem for liberalism – and for the principles of transparency and accountability – in this age of Brexit and Trump.

It is not enough to point out the lies and misinformation – or to show the misuses and abuses of law – if a sufficient number of people do not care that they are being lied to or misinformed and that the law is being misused or abused.

And there is nothing the media or commentators can do about this (though we should still be public-spirited donkeys anyway).

This requires a shift – not in media and communications – but of politics and of political leadership.

Only if enough citizens care about the government abusing or misusing the law will the government stop doing it, at least so openly.

And until then the United Kingdom’s indifference towards the rule of law and other constitutional norms will just be a register of the public’s general indifference about the government getting away with it.

*****

This law and policy blog provides a daily post commenting on and contextualising topical law and policy matters – each post is published at about 9.30am UK time.

Each post takes time, effort, and opportunity cost.

If you value the free-to-read and independent legal and policy commentary both at this blog and at my Twitter account please do support through the Paypal box above.

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Benjamin the Donkey from Animal Farm, and the limits of political commentary

New Year’s Eve, 2020

Tomorrow Animal Farm and other works by George Orwell come out of copyright in the United Kingdom.

To mark this, and to do something different on this blog on New Year’s Eve, this is a tribute to – and critique – of Benjamin the donkey as a political commentator.

(And, just for the rest of today, the many quotations in this post are ‘fair dealing with a work for the purpose of criticism or review’ under the Copyright etc Act 1988.)

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Benjamin has qualities which would (or should) make him a great political commentator.

First – and this is key:

‘Benjamin could read as well as any pig…’

In Animal Farm, the two key textual reveals to the other other animals are because Benjamin can read as well as any pig:

‘”Fools! Fools!” shouted Benjamin, prancing round them and stamping the earth with his small hoofs. “Fools! Do you not see what is written on the side of that van?”‘

And:

‘[Benjamin] read out to her what was written on the wall. There was nothing there now except a single Commandment. It ran:

ALL ANIMALS ARE EQUAL
BUT SOME ANIMALS ARE MORE EQUAL THAN OTHERS’

Benjamin is capable of understanding, and explaining, anything done by those who have sought and obtained political power – it is not for him obscure or forbidden knowledge.

He is not of the political world, but can understand it as well as those who are powerful.

And so he can see and describe what is actually happening:

‘…Benjamin was watching the movements of the men intently. The two with the hammer and the crowbar were drilling a hole near the base of the windmill. Slowly, and with an air almost of amusement, Benjamin nodded his long muzzle.

‘”I thought so,” he said. “Do you not see what they are doing? In another moment they are going to pack blasting powder into that hole.”‘

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Second, Benjamin is impartial in a hyper-partisan world:

‘Old Benjamin, the donkey, seemed quite unchanged since the Rebellion. […] About the Rebellion and its results he would express no opinion. When asked whether he was not happier now that Jones was gone, he would say only “Donkeys live a long time. None of you has ever seen a dead donkey,” and the others had to be content with this cryptic answer.’

And:

‘The animals formed themselves into two factions under the slogan, “Vote for Snowball and the three-day week” and “Vote for Napoleon and the full manger.” Benjamin was the only animal who did not side with either faction. He refused to believe either that food would become more plentiful or that the windmill would save work. Windmill or no windmill, he said, life would go on as it had always gone on–that is, badly.’

And:

‘Only old Benjamin refused to grow enthusiastic about the windmill, though, as usual, he would utter nothing beyond the cryptic remark that donkeys live a long time.’

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Third, Benjamin has a stock of knowledge and historical perspective:

‘Only old Benjamin professed to remember every detail of his long life and to know that things never had been, nor ever could be much better or much worse–hunger, hardship, and disappointment being, so he said, the unalterable law of life.’

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And Benjamin is (for want of a better word) humane and (privately) kind:

‘Nevertheless, without openly admitting it, he was devoted to Boxer; the two of them usually spent their Sundays together in the small paddock beyond the orchard, grazing side by side and never speaking.’

And:

‘…Benjamin urged Boxer to work less hard’.

And:

‘…Benjamin warned [Boxer] to take care of his health’.

And:

‘…Benjamin [laid] down at Boxer’s side, and, without speaking, kept the flies off him with his long tail.’ 

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So: what more could you want in a political commentator?

Benjamin is worldly yet impartial, and he has historical perspective and a stock of knowledge, and he also is (at least privately) kindly.

But Benjamin fails as a commentator.

His impartiality has hardened into quietism, and he leaves everything too late.

Of course, Benjamin does not actively collaborate with those with political power:

‘He did his work in the same slow obstinate way as he had done it in Jones’s time, never shirking and never volunteering for extra work either.’

But he also does nothing when it would have made a difference to stop abuses of power.

For example, the constant re-wordings of the commandments which culminate in the addition of ‘BUT SOME ANIMALS ARE MORE EQUAL THAN OTHERS’ is left to others to read who do not have the donkey’s understanding.

And when Boxer is taken to the glue factory, Benjamin’s late realisation is futile.

His private kindness made no difference to this very public and brutal act of power.

Had Benjamin been engaged from the beginning of the rebellion, the pigs may have got away with less and Boxer would have enjoyed a retirement.

(That is, if Benjamin had not – ahem – disappeared.)

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T. S. Eliot famously turned-down Animal Farm for publication, writing to George Orwell that all the farm really needed were ‘more public-spirited pigs’.

That is, better conduct and more self-restraint by those who achieve and exercise political power – the essence of Toryism.

But left to themselves, those who achieve and exercise political power will tend to abuse that power – and that is why wiser people than Eliot also want checks and balances.

And one check and balance is an independent media.

A media which is worldly, impartial, and has historical perspective and a stock of knowledge, and which also – if not kindly – is certainly not cruel.

But as the example of Benjamin shows, even these wonderful qualities are not enough, if not constantly applied.

What was perhaps needed on the farm was not ‘more public-spirited pigs’ but a more public-spirited donkey.

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Yet – this is a question which Orwell does not really address – the animals would also need to have cared if the donkey had told them what was happening in time.

For the experience of Brexit and Trump indicates that even if Benjamin had been more vigilant about abuses of power, many of the animals may not have cared.

‘The animals crowded round the van. “Good-bye, Boxer!” they chorused, “good-bye!”‘

So commentary may not be enough: there is limited point to explaining about lies and abuses of power if people do not care that they are being lied to and power is being abused.

And that is the fundamental challenge of politics in the age of the promised windmills of Trump and Brexit.

But providing commentary is a public good in itself, even if it is not heeded.

And so this blog will carry on into the new year as the work of a public-spirited donkey.

Happy new year to all my readers and followers.

*****

This law and policy blog provides a daily post commenting on and contextualising topical law and policy matters – each post is published at about 9.30am UK time.

Each post takes time, effort, and opportunity cost.

If you value the free-to-read and independent legal and policy commentary both at this blog and at my Twitter account please do support through the Paypal box above.

Or become a Patreon subscriber.

You can also subscribe to this blog at the subscription box above (on an internet browser) or on a pulldown list (on mobile).

*****

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.

Comments will not be published if irksome.

 

The Bill implementing the Trade and Cooperation Agreement is an exercise in the Government taking power from Parliament

30th December 2020

Today Parliament will be expected to pass, in one single day, the legislation implementing the Trade and Cooperation Agreement into domestic law.

This situation is exceptional and unsatisfactory.

The bill is currently only available in draft form, on the government’s own website.

As you can see, this means that ‘DRAFT’ is inscribed on each page with large unfriendly letters.

And we are having to use this version, as (at the time of writing) the European Union (Future Relationship) Bill is not even available parliament’s  ‘Bills before Parliament’ site.

The draft bill is complex and deals with several specific technical issues, such as criminal records, security, non-food product safety, tax and haulage, as well as general implementation provisions.

Each of these specific technical issues would warrant a bill, taking months to go through the normal parliamentary process.

But instead they will be whizzed and banged through in a single day, with no real scrutiny, as the attention of parliamentarians will (understandably) be focused on the general implementation provisions, which are in Part 3 of the draft bill.

And part 3 needs this attention, as it contains some remarkable provisions.

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Clause 29 of the draft bill provides for a broad deeming provision.

(Note a ‘clause’ becomes a ‘section’ when a ‘Bill’ becomes enacted as an ‘Act’.)

The intended effect of this clause is that all the laws of the United Kingdom are to be read in accordance with, or modified to give effect to, the Trade and Cooperation Agreement.

And not just statutes – the definition of ‘domestic law’ covers all law – private law (for example, contracts and torts) as well as public law (for example, legislation on tax or criminal offences).

It is an ingenious provision – a wave of a legal wand to recast all domestic law in whatever form in accordance with the agreement.

But it also an extremely uncertain provision: its consequences on each and every provision of the laws of England and Wales, of Northern Ireland, of Scotland, and on those provisions that cover the whole of the United Kingdom, cannot be known.

And it takes all those legal consequences out of the hands of parliament.

This clause means that whatever is agreed directly between government ministers and Brussels modifies all domestic law automatically, without any parliamentary involvement. 

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And then we come to clause 31.

This provision will empower ministers (or the devolved authorities, where applicable) to make regulations with the same effect as if those regulations were themselves acts of parliament.

In other words: they can amend laws and repeal (or abolish) laws, with only nominal parliamentary involvement.

There are some exceptions (under clause 31(4)), but even with those exceptions, this is an extraordinarily wide power for the executive to legislate at will.

These clauses are called ‘Henry VIII’ clauses and they are as notorious among lawyers as that king is notorious in history.

Again, this means that parliament (and presumably the devolved assemblies, where applicable) will be bypassed, and what is agreed between Whitehall and Brussels will be imposed without any further parliamentary scrutiny.

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There is more.

Buried in paragraph 14(2) of schedule 5 of the draft bill (the legislative equivalent of being positioned in the bottom of a locked filing cabinet stuck in a disused lavatory with a sign on the door saying ‘Beware of the Leopard’) is a provision that means that ministers do not even have to go through the motions of putting regulations through parliament first.

Parliament would then get to vote on the provisions afterwards.

This is similar to the regulations which the government has been routinely using during the pandemic where often there has actually been no genuine urgency, but the government has found it convenient to legislate by decree anyway.

Perhaps there is a case that with the 1st January 2021 deadline approaching for the end of the Brexit transition period, this urgent power to legislate by decree is necessary.

But before such a broad statutory power is granted to the government there should be anxious scrutiny of the legislature.

Not rushed through in a single parliamentary day.

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There are many more aspects of this draft bill which need careful examination before passing into law.

And, of course, this draft bill in turn implements a 1400-page agreement – and this is the only real chance that parliament will get to scrutinise that agreement before it takes effect.

You would not know from this draft bill that the supporters of Brexit campaigned on the basis of the United Kingdom parliament ‘taking back control’.

Nothing in this bill shows that the Westminster parliament has ‘taken back control’ from Brussels.

This draft bill instead shows that Whitehall – that is, ministers and their departments – has taken control of imposing on the United Kingdom what it agrees with Brussels.

And presumably that was not what Brexit was supposed to be about.

*****

This law and policy blog provides a daily post commenting on and contextualising topical law and policy matters – each post is published at about 9.30am UK time.

Each post takes time, effort, and opportunity cost.

If you value the free-to-read and independent legal and policy commentary both at this blog and at my Twitter account please do support through the Paypal box above.

Or become a Patreon subscriber.

You can also subscribe to this blog at the subscription box above (on an internet browser) or on a pulldown list (on mobile).

*****

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.

Comments will not be published if irksome.

The United Kingdom-European Union trade agreement – the early emerging picture

27th December 2020

The draft trade agreement between the European Union and the United Kingdom and related documents were published yesterday.

As this blog has previously averred, there is not sufficient time for this agreement and related documents to be properly analysed and scrutinised before the Brexit transition period ends automatically on 31st December 2020.

All one can really do in the time available is read through the documents, spot patterns and complications, and notice the more obvious deficiencies, discrepancies and omissions.

Proper analysis and scrutiny of such a large legal instrument is not and cannot be a linear, read-through exercise.

It is instead complex: comparing provisions within the agreement and related documents, then matching the provisions with external legal instruments, and – most importantly – practically stress-testing the proposed provisions against reality.

As this blog has previously said, legal codes are akin to computer coding – and so quick reviews before deployment will not spot the inevitable bugs.

All that said, there are already some emerging shapes and overall impressions.

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The best starting point is the European Union page, which has links to a number of relevant documents.

You will see there that there is not just one draft agreement, for trade – there are also a security of information agreement and a civil nuclear Agreement.

There is also a 26-page document of ‘declarations’.

Also worth looking at is this 2-page table of consequences of the United Kingdom’s departure and the benefits of the agreement.

The corresponding page of the United Kingdom government has fewer resources but there is this 34-page explainer which summarises at a high-level the ‘core’ provisions of the agreement.

(Though without the contents pages and judicious use of spacing, numbering and tabes, that explainer would have significantly fewer pages.)

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A number of commentators and experts have also shared their early views and impressions.

The excellent team at the Institute of Government have provided initial analyses of the provisions at their site – see the links on the left of that landing page for their looks at individual areas.

Professor Steve Peers – author of various leading texts on European Union law – spent Christmas Day and Boxing Day putting together an explanatory thread on Twitter.

The thread, like the rest of his social media output, is an astonishing work of immediate legal commentary and is a boon for the public understanding of law.

There was other outstanding commentary.

Trade expert Dr Anna Jerzewska: 

Services expert Nicole Sykes:

Former United Kingdom senior trade official David Henig did a post and a thread:

Another trade expert Sam Lowe observed that the trade side of the agreement was thin and – but for politics and choreography – could have been completed more quickly:

John Lichfield provided an informative thread on fisheries:

And extradition lawyer Edward Grange had a similarly informative ‘quick look’:

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In my own area of particular interest – institutions, governance and dispute resolution – my own very preliminary tweet got widely shared:

https://twitter.com/davidallengreen/status/1342749971142029312

And it was even picked up by the Daily Express, which – in an extraordinary and unexpected turn of events – described this blog as an ‘influential blog’.

Anton Spisak looked at this far more closely and he compiled this helpful diagram:

This elaborate scheme was correctly described by Professor Phil Syrpis as follows:

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All this is only ‘first glance’ stuff – a Boxing Day walk-through a long and complicated legal text.

But what is already plain is that what the United Kingdom government is boasting and spinning about the agreement may not be accurate.

Remember, however, that the old saying ‘the devil is in the detail’ is often the opposite of the truth.

Devils lurk and thrive in generalities, mismatched expectations, mutual misunderstandings, and grand sweeping statements.

It is these that bedevil us.

Details – that is precise language – flush out these devils.

And as we understand more about what has actually been agreed in this ‘deal’ – and what was not agreed – we will no doubt see many devils flush past.

*****

This law and policy blog provides a daily post commenting on and contextualising topical law and policy matters – each post is published at about 9.30am UK time.

Each post takes time, effort, and opportunity cost.

If you value the free-to-read and independent legal and policy commentary both at this blog and at my Twitter account please do support through the Paypal box above.

Or become a Patreon subscriber.

You can also subscribe to this blog at the subscription box above (on an internet browser) or on a pulldown list (on mobile).

*****

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.

Comments will not be published if irksome.

The EU-UK trade agreement – and the tale of two tables

Boxing Day, 2020

The post-Brexit agreement on trade and other matters is, it seems, in final draft form – although it has not yet been officially published.

What seems to be a copy of the final draft is here.

Proper analysis of the agreement will necessarily take time – though an initial glance showed about ten pages devoted to creating dozens and dozens of joint European Union and United Kingdom talking shops – committees, assemblies, talking shops, and so on.

This indicates that Brexit will in fact be a negotiation without end.

So while we digest this Christmas feast, let us look at a couple of Christmas cards.

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The first is a ‘scorecard’ made public on Christmas Eve.

This purports to show a sequence of heady United Kingdom ‘wins’.

It is too soon to tell whether this document accords with the actual draft agreement, but even on its own terms it is confused and unconvincing.

For example, if we look at public procurement, where the United Kingdom had no proposals, the outcome is dubbed a ‘mutual compromise’.

But on legal services, where the European Union in turn had no position, the outcome is dubbed a United Kingdom ‘win’.Some topics are artificially broken up, perhaps to claim more United Kingdom ‘wins’ (for example, Financial Services), and other ‘wins’ not substantiated by accompanying text (especially Law Enforcement).

Such inconsistencies and distortions mean that, even on the face of it, the ‘scorecard’ is not a reliable document to form a view on the draft agreement either for or against.

The table has been created by the United Kingdom government (or a supporter of government policy) as propaganda, not analysis.

*

The United Kingdom government, however, is not alone in presenting a table as a spinning exercise.

Again, it is too soon to tell whether this table is accurate in comparison with the actual agreement, though there are no obvious internal inconsistencies in the document.

And maybe significantly, this second table is not framed as ‘wins’ but is instead about losses – the scope and areas of coverage.

What is outside the agreement, as opposed to what was included.

Looking down the ticks and crosses indicate what the United Kingdom might be losing as opposed to ‘winning’.

*

Just as the number of talking shops to be created under the agreement show that Brexit will now become a negotiation without end, the existence of these two tables indicate that the merits of Brexit will also be an ongoing argument.

Brexit will be a contested subject for at least a generation.

This trade agreement may be bringing part of the Brexit story to a formal conclusion, but it certainly does not bring Brexit to an end.

***

POSTSCRIPT

The United Kingdom government has now published the final draft agreement and a 34 page summary – see here.

And the European Union has published its suite of documents here.

 

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Scenes from Brexit past – so as to keep the impending Deal ‘triumph’ in perspective

Christmas  Eve, 2020

Today political and media supporters are hailing as a triumph a Brexit agreement few of whom have read and many will probably one day disown.

It is now a familiar ritual.

And as Christmas Eve is a time for ghost stories, here are some scenes from Brexit past.

*

First let us go before even the referendum.

It is late 2015, and the then prime minister David Cameron and a team of negotiators are seeking a ‘deal’ – a supposed re-negotiation that would be the basis for victory in a referendum expected to take place in 2016.

But the re-negotiation was a failure – though that too hailed by some at the time – and was hardly mentioned in the referendum campaign.

And – as this blog has set out previously – the wrong lessons were drawn from that deal by Brexiters, who believed demanding more things loudly was a deft negotiation technique with the European Union.

*

We now go to the days after the referendum result, in the summer of 2016.

The governing Conservative party were in the midst of a leadership election – and the winning candidate asserted that ‘Brexit means Brexit’.

The European Union were, around the same time, putting in place negotiation priorities and strategies that would mean that they were ready to start negotiating by the end of that year.

The United Kingdom, in contrast, had no plans or even articulated idea of what it wanted out of Brexit when that new prime minister made the departure notification in March 2017.

*

We now move on to the middle of the following year, where Brexit secretary David Davis promised ‘the row of the summer’ over the sequencing of the Brexit negotiations.

The ‘row’ lasted only days, as a far better prepared European Union got its way completely on sequencing.

*

And now we go to December 2017 where the European Union accepts that there has been ‘sufficient progress’ in the talks and enters into a ‘joint declaration’ with the United Kingdom.

This joint declaration contains delicate but significant wording on the issue of the border in Ireland – wording which many political and media supporters of the government do not appreciate at the time or do not take seriously.

That joint declaration is hailed by those supporters anyway.

Brexit is getting done.

*

We finally move on to December last year, where the Conservative party win a general election on the basis of an ‘oven ready’ withdrawal deal negotiated by the current prime minister.

That deal was, of course, hailed by political and media supporters of the government.

But months later, the United Kingdom government resorts to proposing legislation that would empower ministers to break that same ‘oven ready’ deal.

That legislation was hailed by political and media supporters of the government.

*

There are many more such scenes from Brexit – you may now be thinking of others.

Some of these ghostly memories may be forgotten by the cheerleaders of the government.

But they have certainly not been forgotten by the European Union.

That is why the deal is likely to have strict provisions on governance, as the United Kingdom has consistently spooked the European Union in the conduct of these negotiations.

So when the deal is finally unwrapped its contents may horrify the political and media supporters of the government who are currently hailing it more than any ghost story.

And that may be a scene of Brexit yet to come.

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Why a two thousand page EU-UK relationship agreement cannot be properly scrutinised between now and 31 December 2020

23rd December 2020

A week tomorrow, on 31st December 2020, the Brexit transition period comes to an end.

This transition period has artificially kept in place most of the substance of membership of the European Union for the United Kingdom (other than representation on various institutions) even though as a matter of law the United Kingdom departed the European Union on 31st January 2020.

There is still no agreement in place for the future relationship.

There is still, it seems, not even an agreed draft text in final form.

And there certainly has not been ratification by the European Parliament.

(In the United Kingdom, parliament does not need to ratify an international agreement though parliament may need to legislate so as to implement what has been agreed.)

According to one well-connected and reliable commentator the current version of the agreement is two thousand pages long.

This is not a surprise, given the scope of what needs to be addressed in the agreement – the new ongoing relationship of the United Kingdom and the European Union on trade and other matters.

There are also news reports that the negotiators have missed the deadline for any agreement to be voted on by the European Parliament before the end of the year.

But even if somehow the European Parliament can reconvene before end of the year, there is not enough time for anyone other than those directly connected with the negotiation (and so will be familiar with the text) to scrutinise the agreement.

Today is a Wednesday – Christmas Eve and Christmas Day block out tomorrow and Friday, and then it’s the the weekend, and then it is the Boxing Day holiday on Monday.

That leaves only three full days to do everything.

The situation is ludicrous.

*

A legal instrument is a complex thing.

Legal texts are not linear documents – you do not start reading on page one and go through to the end, and then stop.

A legal text is more akin to a computer program – law codes and computer coding are remarkably similar things.

Each provision – indeed, each word – in a legal instrument has a purpose.

Each provision has to, in turn, cohere with all the other provisions elsewhere in the text – so Article 45, for example, needs to fit with Article 54, and so on.

In an international agreement such as this relationship treaty, each provision also has to cohere with hundreds – perhaps thousands – of other provisions in other legal instruments.

(This is especially true of an agreement entered into by the European Union, which is a creature of law.)

Each provision also has to be capable of working in practice – and so needs to be assessed from a practical as well as a legal(istic) perspective.

And – perhaps most importantly – any significant legal instrument needs to be examined and approved by political representatives.

This last requirement is particularly important when the agreement will have huge consequences for people and for businesses.

*

And there is something else.

The United Kingdom government has now twice – in a rush – signed up to something so as to ‘get Brexit done’ and then regretted it.

The first was the ‘joint declaration’ in withdrawal agreement negotiations, and the second was the withdrawal agreement itself – which the United Kingdom government sought to legislate so that it could break the law.

This means that nobody can have any real confidence that government ministers have any proper understanding of what they are signing up to.

If any agreement needs proper scrutiny, this one does.

*

Charles Dickens in A Christmas Carol makes it so that all three visitations are packed into a single evening.

But not even an imagination as vivid as that of Dickens could make it plausible that a two thousand page agreement of such immense importance could be properly examined as a matter of law and for practicality, and to receive proper political scrutiny, in the few days available before the end of the year.

Brace, brace.

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How a government capable of ‘cancelling Christmas’ did not extend the Brexit transition period – or why populism keeps prevailing over prudence

Winter Solstice, 2020

How did it come to pass that a government capable of ‘cancelling Christmas’ did not extend the Brexit transition period,?

Why is the United Kingdom having to deal simultaneously with the effects of both a pandemic and the departure from the European Union?

*

The Brexit withdrawal agreement provided for a transition period, where the United Kingdom remained part of the European Union in substance if not in legal from (though not part of the law and policy making institutions).

Article 126 of that exit agreement provided that this extension period would end on 31 December 2020.

*

The exit agreement also provided that the transition period could be extended – either by one or even two years.

This was a prudent provision –  just in case something happened which meant the brisk ‘let’s get Brexit done’ timetable was not possible because of some significant development – well, like a worldwide pandemic.

Yet 1st July 2020 came and went with no extension to the transition period.

https://twitter.com/davidallengreen/status/1278101059119075332

*

This deadline for putting in place an extension was not a mere omission – the sort of thing a busy government may not have noticed in the rush of events.

The  failure to put in place the extension was a deliberate decision of the United Kingdom.

On 12 June 2020, the cabinet minister responsible for negotiations with the European Union announced proudly:

‘We have informed the EU today that we will not extend the Transition Period. The moment for extension has now passed.’

Had he perhaps not realised there was a pandemic on at the time?

Remarkably, the following sentence of the minister’s statement expressly stated that the decision not to extend was in view of the pandemic:

‘At the end of this year we will control our own laws and borders which is why we are able to take the sovereign decision to introduce arrangements in a way that gives businesses impacted by coronavirus time to adjust.’

The United Kingdom government promoted the decision not to extend as a news story.

The deadline was even the topic of direct discussion between the prime minister and the presidents of the European Council and the European Commission on 15 June 2020:

‘The Parties noted the UK’s decision not to request any extension to the transition period. The transition period will therefore end on 31 December 2020, in line with the provisions of the Withdrawal Agreement.’

The United Kingdom government knew the extension deadline was about to pass, and the government decided deliberately to not have an extension with full awareness (and explicit mention) of the ongoing pandemic.

‘Getting Brexit done’ was more important.

Populism prevailed over prudence.

*

This option to extend the transition period was the only way to do so that was written into the exit agreement.

This means that, on the face of it, there is no way there can be an agreement now to extend the transition period.

The opportunity to extend the agreement would appear to have come and gone.

That said, there may be other ways of an extension – as set out by Georgina Wright and others in this report by the estimable Institute for Government.

And few legal feats are beyond the wits of clever European Union and United Kingdom government lawyers in a crisis.

But such an alternative approach to extension would not be easy nor  can it be instant – it would be an elaborate patch and workaround.

For such an extension to put in place now – ten days before the end of the transition period, with the Christmas holidays and a weekend in the middle – would require extraordinary political goodwill and legal ingenuity.

And all to have the same effect as the opportunity squandered by the government in June 2020.

*

The decision to ‘cancel Christmas’ was, as this blog set out yesterday, not one any government would have wanted to make.

The fundamental mistake of this government was not to prepare people for the possibility – indeed probability – of this decision.

Days before the decision was made, the prime minister was loudly deriding the leader of the opposition on this very point.

Just click  below and watch and listen.

(Alongside this banality, the Secretary  of State for Education was also threatening a London council with a high court mandatory injunction so as to keep schools open.)

*

Had the prime minister and others been acting responsibly, and in the public interest, and given it appears that the government had known about the new coronavirus variant for some time, there should not have been derision of the opposition for the possibility of ‘cancelling Christmas’.

A prime minister and government acting responsibly, and in the public interest, would have been explaining that the public and businesses had to brace themselves for the possibility – indeed probability – of such restrictions and to prepare accordingly.

But the prime minister went for easy claps and cheers instead.

Again, populism prevailed over prudence.

*

Yesterday, this story was published by the government-supporting media.

The ugly truth, however, is that every single significant error in Brexit and with coronavirus has been because of the UK government ‘playing to its domestic audience’.

Every single one.

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‘Cancelling Christmas’ days after deriding the possibility shows how the prime minister is caught in the trap of populism

20th December 2020

Just days ago, at the last Prime Minister’s Questions (PMQs), this exchange took place.

Click and watch it.

At this point, the prime minister knew that there was a real risk that, to use the phrase, ‘Christmas would have to be cancelled’ – at least for London and the south east.

A responsible prime minister would have used the moment of PMQs – where there is a platform both before elected representatives and before the media and public – to prepare people for this sad possibility.

(Indeed, it may be that on Wednesday he knew that it was far more than a possibility.)

But what did this prime minister do instead?

He derided the leader of the opposition and he dismissed the risk.

We once had a prime minister – who was not without other faults – who candidly warned the public of sweat and tears.

We now have a prime minister who goes for claps and cheers.

Indeed, ‘populism’ can be illustrated, if not defined, by this prime minister sneering that others want to ‘cancel Christmas’ for claps and cheers – days before then having to cancel Christmas.

The constant putting-off of difficult decisions, and the promotion of easy answers.

(On this, this column by Rafael Behr is magnificent.)

Now some government-supporting politicians are spinning that this is a prime minister unafraid of difficult decisions.

This is untrue.

The difficult decision was not the one forced yesterday – there was by then no real choice – but at PMQs, where there was a choice to be made.

Does the prime minister tell members of parliament and the watching media and and public to brace themselves that something bad may happen – and to thereby give everyone time to plan accordingly – or does he go for the glib jibe?

Watch the footage again, and see what he decides to do.

It is difficult – genuinely – to imagine a more incompetent prime minister.

Yes, other government-supporting politicians – from the home secretary to the leader of the house of commons – would be just as dreadful.

But they would only be as bad in different ways.

For as, scientists tell us, one cannot go below absolute zero, one cannot go beneath a level of absolute incompetence.

No prime minister would have relished facing up to ‘cancelling Christmas’ for millions of people.

But our prime minister is caught in the trap of populism.

And politicians that can only play to the crowd invariably end up letting the crowd down.

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