Oh Canada

Spiteful governments and simple contract law, a weak threatening letter, and a warning of a regulatory battle ahead

13th January 2025

Some things from last week you may have missed.

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The weekly constitutional

Last week I expected my blogging to centre around a post I was preparing for Prospect, where my regular contribution is to branded as ‘weekly constitutional’.

This pleasing badge implies a weekly meander – but it will be one based on a recent (or non-recent) published case report. The aim is to use that judgment or other decision to show how law and action work – and do not work – in practice.

The first ‘weekly constitutional was about a significant United Kingdom Supreme Court decision that was handed down in November but which got almost no press attention (the main honourable exception was in the estimable Byline Times).

In the unanimous decision the Supreme Court justices undid a grossly spiteful attack by the then coalition government on public sector trades unions not by resorting to elaborate employment law provisions, but by applying a contract law rule so simple it is the stuff of the first weeks of any law degree.

I liked doing that post – please read it here – and I hope you will follow the ‘weekly constitutional’ post. I will post here and alert you to them, perhaps expanding on certain points.

But that post got rather drowned by the attention received by two other things that I wrote last week.

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‘Lettuce before Action’

I so wish I had thought of the above line, but it was coined by the peerless Paul Magrath, whose weekly law email is a must-read – you can subscribe here.

This is about, of course, the antics of a former Prime Minister – and indeed a former Lord High Chancellor – in sending a legal letter to the current Prime Minister.

A letter so weak it may well be the weakest threatening letter ever sent by a United Kingdom law firm.

The ‘close reading’ post I did – here – was done very quickly and promptly, and indeed so promptly that I even had to set out why as a matter of copyright and confidentiality I was entitled to publish the letter so as to comment on it.

Since the publication, the former Prime Minister has been widely ridiculed for this misfired missive – but I think there may be something more worth saying about the letter – and so I may do a post with further reflections.

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Back in the salmon pink

Last week I was also invited to write something about about social media regulation for the Financial Times.

It is always lovely to write for what – in my biased but honest opinion – is the best newspaper, though it is always terrifyingly daunting to be published alongside proper commentators.

(Lucy Kellaway is my all-time favourite columnist in any newspaper anywhere.)

So I wrote one thing, about the inherent difficulties about regulating social media – some of which will be familiar to long-term readers here.

And is often the case, new ideas come out once you actually start something, and so I wrote a second thing about what I say as the rational drivers behind what Meta announced last week. This was based on actually listening carefully to what Mark Zuckerberg has said in his broadcast – and then reading that prepared statement even more carefully (which led to the all-important satisfying “Aha!” moment).

The two pieces were then banged into one longer piece with an overall, hopefully coherent structure.

And the resulting ‘essay’ was published in the print edition and online on Saturday.

For reasons of topicality, more than the quality of the writing, the piece became very popular.

The Bluesky stats for the article matched my Brexit posts on Twitter at the height of Brexit when I had five times as many followers.

The piece was even briefly one of the top five read FT.com pieces globally.

The sensation of this happening is not altogether pleasant.

But perhaps the one merit of the piece was that it offered an explanation for something which seemed otherwise hard to explain in rational terms.

Essentially the argument offered by the piece was:

(a) Meta has an interest in switching to a more confrontational approach with irksome foreign regulators, especially in the European Union,

(b) Meta now has an opportunity to do this because of the reelection of Donald Trump to the United States presidency,

but (c) this does not show strength but weakness, for in those foreign jurisdictions, the platforms know the respective state has the ultimate power of legal recognition.

And so this is why Meta now needs a strategic ally in the US government – and everything else follows from that.

This seemed obvious from Zuckerberg’s statement – but because it was slipped in a point number six after five rather attention-grabbing other points, but did not get the attention it should have had.

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Litigation and regulatory strategies are fascinating – in particular, where the surface theatrics of impulsiveness, hypocrisy and recklessness misdirect onlookers into thinking the underlying commercial (or political) objectives are similarly irrational.

Even Liz Truss’s letter makes sense – but solely from a political-media perspective, and not any legal perspective.

Perhaps I should write that further piece on that letter, if only to use that ‘Lettuce before Action’ line as a title.

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This week’s skirmish between the European Commission and X

And from time to time you will have visible contests between those with different types of power. The job of law and politics is then to regulate such contests so as to ensure that tensions do not harden into the contradictions that undermine the health of a polity.

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These contests of power, when they happen, are fascinating.

Over at Prospect I have written a post about one such contest: the European Commission v X.

The latter has considerable media power: so much so that the content of its platform can often have a considerable real-world impact.

But the former also has considerable power – in the formulation of the laws that apply to the platform in the European Union and in the application of those laws in particular circumstances.

It is quite the stand-off.

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When the European Commissioner responsible for the Single Market tweeted a letter last week, it reminded me of an earlier stand-off.

It evoked the stand-off in 1930-31 between the then government of the United Kingdom and the then popular press over tariff reform and imperial preference (the Brexit issue of its day).

That was a stand-off which, at least in the short-term, the government won.

(Tariffs were introduced later in the 1930s, though not directly because of media pressure.)

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Often these tensions are hidden and managed out of public view, and so it is always interesting – and instructive – when they are done in public.

Something is up.

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Comments are welcome, but they are pre-moderated and comments will not be published if irksome, or if they risk derailing the discussion.

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Commissioner Breton writes a letter: a post in praise of the one-page formal document

Sovereignty, again

9th March 2023

In law and policy commentary – especially since 2016 – we go from the general to the particular, and from the particular to the general.

We swing constantly between the grandest constitutional concepts – the separation of powers, the rule of law, sovereignty – to the exact wording of particular clauses and other texts.

It really should not be this exciting, but it is.

Today we will look at sovereignty again.

And some of you will complain about who I am about to quote, but it is an example of a frame of mind which still has not gone away.

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Sovereignty is generally about the ability of states to decide things as they wish and to do things (or attempt to do things) as they want.

More exactly, it is about the autonomy, capacity and legal personality of states.

One general feature of sovereignty is therefore about the ability of states to enter into agreements with other states, or not.

Just as it is a general feature of adulthood to enter into various legal relationships, or not.

(And please note, the uses of “general[ly]” means, yes, there are exceptions, so no need to scroll down to list them in a comment.)

It is thereby an exercise of sovereignty to enter into treaties and to become a member of various international organisations.

That is what sovereign states do.

And they do it, in part, because they can.

As such, to say that a state being party to an international agreement is a negation of sovereignty is to fundamentally misunderstand what sovereignty means.

The very fact that the United Kingdom is a party to the United Nations shows that it is a sovereign state.

Indeed, one useful working definition of what is a sovereign state is whether it is (or is capable of becoming) a member of the United Nations.

And membership of an organisation will generally confer rights and impose obligations.

If a state does not want to have those rights and obligations then it can leave, either by an agreed exit process (such as the once-famous Article 50 of the Treaty on European Union) or by treaty or even by denunciation.

One of the most telling passages in the story of Brexit was in a government white paper before departure:

“The sovereignty of Parliament is a fundamental principle of the UK constitution. Whilst Parliament has remained sovereign throughout our membership of the EU, it has not always felt like that.”

Membership of the European Union has “not always felt like” we had sovereignty.

This suggested Brexit was an exercise in political therapy: so as to make us feel that we had (and have) sovereignty.

But we had sovereignty all along.

We could have left the European Economic Community and then European Union at any point – though before the treaty of Lisbon (which introduced Article 50), it would have had to have been by treaty (as happened when Greenland left) or by denunciation.

And we could have, at any time, repealed the European Communities Act 1972 without asking any one’s permission.

What Farage and others mean by “sovereignty” is isolationism.

Their ideal is for the United Kingdom not to be bound by any unwanted international obligations, or indeed by any international obligations at all.

But treaties generally require those who enter into them to limit or forego certain rights in return for some benefit.

For that is the nature of international agreements.

Yes, we can – ultimately – always walk away.

And we should be careful which obligations we accept when we enter such agreements.

But such obligations are the essence of the dealings of a sovereign state.

And that sovereignty is always there, even when it does not feel like it.

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Comments Policy

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

Comments are welcome, but they are pre-moderated and comments will not be published if irksome, or if they risk derailing the discussion.

More on the comments policy is here.

 

 

When William Rees-Mogg and James Goldsmith asked the courts to declare that the United Kingdom could not ratify the Maastricht Treaty – this week’s Substack essay

2nd March 2023

Over at Substack, the essay for paying subscribers is on the 1993 case brought by William Rees-Mogg and James Goldsmith against the Maastricht Treaty.

You can read it here.

For the reasons set out in the essay, it is fair to see the case as one of the origins of Brexit.

The essay begins as follows:

The case was described by the party who brought it as “the most important constitutional case for 300 years”.

This was the application for judicial review brought by the life peer William Rees-Mogg in July 1993, where he sought a High Court declaration that the legislation giving effect to the Maastricht Treaty was unlawful. Lord Rees-Mogg wanted the courts to tell parliament that a Bill, which was then about to become an Act of Parliament, was invalid. It was to be a strike at the very principle of parliamentary sovereignty.

His lead barrister for this ambitious claim was a recently appointed QC called David Pannick, and the high costs of the claim was financed by James Goldsmith (a year before he founded the Referendum Party).

The legal claim so concerned the John Major government that, in addition to instructing the then Treasury Devil (the government’s usual barrister for such cases) it also instructed one of the most brilliant barristers of the day (and still, happily, our day), Sydney Kentridge.

The stated grounds for the application also so alarmed the then Speaker of the House of Commons Betty Boothroyd to take it upon herself to warn from the speaker’s chair of the House of Commons “that the Bill of Rights will be required to be fully respected by all those appearing before the Court”.

The timing of the case was significant. When the claim was brought the Bill giving domestic effect to the Maastricht treaty was still before parliament, though it received royal assent before the hearing could take place.

The Maastricht Treaty had been signed in February 1992, but there was a sense that it was not inevitable that it would actually take effect.

The Danes had rejected the treaty by referendum in June 1992, before approving it in a further referendum in May 1993, and the French referendum of September 1992 had approved the treaty with only a narrow 51% majority. Also in September 1992 the United Kingdom’s currency had been ejected from the exchange rate mechanism on “Black Wednesday”. The European Union project was not seen by its opponents as inescapable. Not only was the Maastricht treaty contested, it was seen as capable of defeat.

Domestically the government had had problems getting the Bill through the House of Lords (including defeating Lord Blake’s amendment for a referendum) and had suffered a number of rebellions in the House of Commons.

And when the Bill received royal assent on 20 July 1993 but there was still what then Prime Minister John Major called a “ticking time bomb” of a later vote on the Social Protocol which would mean the treaty could not be regarded as ratified. Major was to win that vote only by making it a vote of confidence.

This was all very exciting at the time, and a great deal of the above – spirited public law claims led by Pannick, judges being brought into political matters, calls for referendums, close commons votes – seems rather familiar at our own time of Brexit. The case is well worth looking back on thirty years later.

And so this is the story of R. v Secretary of State for Foreign and Commonwealth Affairs ex p. Rees-Mogg.

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Those of you kind enough to be paying Substack subscribers can read it here – and if you are not yet a paying Substack subscriber, please consider becoming one.  The subscriptions help support my daily law and policy commentary on this blog.

Those of you who are Patreon supporters can read the essay here.

Anyone who donated money on PayPal to this blog in 2022 can have a free one year complimentary Substack subscription – just leave a comment marked “Private” saying when you donated below, with your email address.  (It is important that nobody pays twice for my drivel.)

If you are a regular reader of this blog and are currently not able to afford a paying subscription, also leave a comment below marked “Private” saying so, with your email address, and I will consider providing a short-term complimentary subscription.

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Last week’s essay was on how the courts improvised legal solutions in the hard case of George Blake.

The week before the essay was on the lore of Lady Justice, here.

And the week before that it was on the case of Jane Wenham and the last of the English witch trials.

Other essays include (in chronological order of the subject):

Dr Bonham’s case (1610) – and the question of whether parliament is really sovereign

Taff Vale (1901) – perhaps the most important case in trade union history

Wednesbury (1948) – the origin of the modern principle of legal unreasonableness

Malone (1979) – perhaps the most significant constitutional case of the last 50 years

These essays are on topics to do with legal history and legal lore – and they are in addition to my topical law and policy commentary here every weekday.

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Comments Policy

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

Comments are welcome, but they are pre-moderated and comments will not be published if irksome, or if they risk derailing the discussion.

More on the comments policy is here.

Is the “Stormont Brake” an instrument or an ornament? And does it matter?

28th February 2023

Here I will pose the question whether the proposed “Stormont Brake” is an instrument or an ornament.

In other words: is the brake something which can actually be used – and be useful – in practice?

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Here are some preliminary views, based on my first reading of the extensive documentation published yesterday for the “Windsor Framework”.

There is no doubt that, in theory, the brake is a very powerful instrument.

If the brake is applied then specific new European Union legislation will not apply in Northern Ireland, notwithstanding the Northern Irish Protocol agreed in 2020.

But.

Even in describing this (potential) potency you will see limitations.

The brake will only apply to new European Union legislation, not existing legislation.

There will be only a short period to challenge the legislation.

And the brake does nothing about the jurisdiction of the European Union courts in interpreting the law of the European Union when it applies in Northern Ireland.

So even taking the brake at its most powerful, its effect will be limited.

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And there is another but.

The small-print of the documents published yesterday show that the conditions and process for the brake are such that, in practice, it will be difficult-to-impossible to apply.

The documents expressly describe it as an “emergency” brake.

For it to be used, the Northern Irish executive needs to be be in place and functioning.

There would then need to be thirty members of the Northern Irish legislative assembly, from more than one party, who are concerned about the proposed measure.

But mere expressions of concern will not be enough.

The MLAs will need to show:

(A) “most exceptional circumstances and as a last resort, having used every other available mechanism” and
(B) a significant impact specific to “the everyday life of communities in Northern Ireland in a way that is liable to persist”.
And if you read that last requirement carefully you will see that it is comprised of three component conditions:
(i) scope – “everyday life of communities” (and note the deft plural);
(ii) significance of impact; and
(iii) duration – “in a way that is liable to persist”.
The MLAs also need to show (C) that they have consulted businesses and civic society, as well as (D) they have participated in any prior consultation exercises for the measure.
Once this step has been accomplished, the government of United Kingdom in turn has to show the European Union (E) why it considers the EU legislation is different from what went before, and – as above (B) again –  that the United Kingdom itself considers that it “would have a significant impact specific to everyday life of communities in Northern Ireland in a way that is liable to persist”.
All of these conditions are defined, and presumably if the United Kingdom cannot show the conditions have been met then the Stormont Brake cannot be applied.
(I am still trying to work out how any dispute in any of this will be resolved.)
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There is a see-saw problem as well.
If a thing is too difficult to be used then it will tend not to be used.
One reason the safeguard provisions under the existing protocol have not been fully used is that the sheer number of conditions and requirements that need to be ticked-off before they can be activated.
As such the provision has become an ornament rather than an instrument.
The same problem may be there with the Stormont Brake.
It may become an ornament, for it will be so difficult to use in practice.
Perhaps that is the intention: it will just be there for reassurance that such a button can be pressed.
But the same was said of the then-new Article 50, after the Lisbon treaty.
It is never safe to assume that an ornamental provision will never be used, and so it always should be capable of working for the intended purpose.
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I am not a supporter of the ERG or the DUP – I support a united Ireland and for the rest of the United Kingdom being part of the single market.
As such, I think the Windsor Framework is a welcome step.
But if I were a supporter of the ERG or the DUP I would not be satisfied by the Stormont Brake – at least with all its current conditions.
Else there will just be another bout of political tension as and when, like the Article 16 safeguards, the Stormont Brake is not seen as a ready remedy.
And we will have to negotiate a new framework and find a new symbolic place to name it after.
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Perhaps the brake does not matter.
Perhaps it is all politics.
Perhaps those involved just want cover for bringing this row to an end, and the Windsor Framework contains a raft of other practical measures to address practical problems.
And as someone observed on Twitter, it is somewhat fitting that a symbolic problem has a symbolic solution.
https://twitter.com/mathof1/status/1630510607647514624
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But if it ever does matter, then the brake must be capable of working.
It cannot just be an ornament.
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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 and comments will not be published if irksome, or if they risk derailing the discussion.

The Windsor Not or a Windsor Knot?

27th February 2023

While we wait for the legal text of the new agreement between the United Kingdom and the European Union to be published, this is just a quick post about the optics.

It has been a long-standing joke that to get some European thing past government supporters and the popular media, all that would need to be done is to call it something like the “Winston Churchill Protocol”.

Calling this agreement the “Windsor Framework” – and getting the royal imprint – is a choreographically deft move.

But form, of course, is not substance, and the text – when it is published – will require hard scrutiny.

This is especially the case of the supposed “brake” which may or may not be really that different from the current dispute resolution procedures.

Here it is interesting that they have chosen the word “brake” – which is not a legal term of art – instead of, say, veto.

(Perhaps they thought they could make it sound like a “break clause” – which is a thing for property lawyers.)

Anyway, let us see.

But, for now, the politics is encouraging and refreshingly grown-up.

Even if this turns out to be more of a Windsor Not than a Windsor Knot.

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Comments Policy

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

Comments are welcome, but they are pre-moderated and comments will not be published if irksome, or if they risk derailing the discussion.

Imagine what would happen if – if – the Northern Irish Protocol issue is resolved

16th February 2023

The news is promising:

So let us think what would happen if – and it is an if – the Northern Irish Protocol issue is ever resolved.

(And some of you will doubt it ever will be.)

As it stands the focus of the post-Brexit relationship is Northern Ireland and the protocol.

The government of the United Kingdom is seeking to be able to break international law for the sake of doing something about the protocol.

The government is also telling its political and media supporters that it will withdraw from the European Convention on Human Rights as a distraction, it seems, from any compromise on the protocol.

Everything in UK-EU relations – at least on the United Kingdom side – appears to be governed by the protocol.

So imagine: what if that issue was no longer there?

What then?

The cynical will think that there would have to be a new issue for the governing party to rally support of Brexiters: that a new dispute with the European Union will be raise, even contrived, and off we will go again.

Maybe.

But there would also be the possibility of the pragmatists and realists to guide policy and move on to what needs to happen next: a sustainable basis for a close UK-EU relationship.

The preference of this blog (ever since the referendum result) has been for the United Kingdom to leave the European Union and to move quickly into the closest possible association agreement, with as much participation in the single market as the European Union will allow us and which the United Kingdom government can also get past its supporters.

Negotiations for such an ideal arrangement should ideally have started by now, and discussions need to start by the time the periodic review of the relationship begins under the withdrawal agreements.

A deal on the Northern Irish Protocol will enable this grown-up and sensible discussion to (finally) take place.

Ho, ho.

Of course, this side of a general election there is little prospect of the government openly seeking a closer relationship with the European Union.

But such a close relationship would necessarily require the Northern Irish Protocol to be practically settled first.

(By “practically settle” I mean that the tensions and frictions occasioned by the protocol have viable work-around solutions – for, as this blog has averred before, the ultimate issue of there being a post-Brexit trading border on the island of Ireland can only be solved by Irish unification – or by the United Kingdom rejoining the European Union.)

And there would then need to be a period where the United Kingdom approach to policy is – frankly – less crazy than seeking to break international law as leverage so as to get its way in a dispute.

United Kingdom policy and politics on Brexit would need to calm down for a while.

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Any deal in the coming weeks on the protocol between the United Kingdom and the European Union will also need to survive attacks from the Democratic Unionist Party and some of the government’s own backbenchers.

These attacks may delay the issue being practically resolved – but these attacks may be time limited in their potency.

But until such attacks do become politically impotent, it may be that practical resolution of the Northern Irish Protocol issue will happen, but not just yet.

We will have to wait.

(In the longer term, of course, the issue of there being a trading border on the island of Ireland probably will be resolved by Irish unification.)

And if the Northern Irish Protocol issue is practically resolved then we perhaps can have fresh and interesting conversations about our post-Brexit relationship with the European Union.

Gosh.

Imagine that.

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Comments Policy

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

Comments are welcome, but they are pre-moderated and comments will not be published if irksome, or if they risk derailing the discussion.

Rejoiners should brace themselves for the United Kingdom to spend a long time outside the European Union

3rd January 2022

First of all, may I wish all of you that follow this blog a happy new year, even if I post things which irk you.

I do not write things just so as to provoke (and indeed much prefer for people to agree with me) but I do try to get things right, and sometimes what I think is right will be what some of you will think is very wrong.

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Second, as you may know I have started a Substack.

For now, every post published on this blog will also be crossposted on the Substack, and nothing will visibly change with what is on this blog.

But I will also be providing additional content at Substack – an essay every Friday on some aspect of legal history or the relationship between law, lore and popular culture – for paid subscribers.

(That essay will also be sent free to Patreon subscribers, and I will also make the post available for free for those who have donated to this blog through Paypal.)

The paid-for subscriptions will enable me to justify more time spent on commentary here, on Mastodon, and for my Substack essays, as all that commentary involves a considerable opportunity cost.

To subscribe to my Substack, click here.

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And now: Brexit.

Fifty years ago, on 1 January 1973, the United Kingdom, Ireland and Denmark joined the so-called European Communities, of which the European Economic Community was the most significant.

(This EEC, in turn, became the European Union on 1 November 1993.)

Thirty years ago, on 1 January 1993, the so-called Single Market was (nominally) completed.

(Indeed, for those at the time “1992” was itself a political totem, and as much a bandied a shorthand as “Brexit”.)

Both dates were momentous for the United Kingdom – especially the latter, as the Single Market in the form it took was very much a triumph for the United Kingdom government, and the architect of the Single Market in that form was a British Conservative politician, Lord Cockfield.

But.

The day was left largely unremarked, even by pundits.

Even the fact that 1 January 2023 was the second anniversary of the United Kingdom effectively leaving the European Union, after the transition period, was largely left unremarked by Brexit supporters.

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And now the news reports there are calls for the United Kingdom to re-join the European Union.

Remainers – now Rejoiners – excitedly share links to opinion polls showing majorities in favour of this and majorities against that.

This is in contrast to Brexiters not being to point to a great deal, if anything, to show that the departure from the United Kingdom has so far been a success.

But.

Re-joining is unlikely to happen, at least for some time.

And this is because there are two things which need to happen before the United Kingdom can even be considered as a restored member of the European Union.

The first is that the politics of the United Kingdom needs to settle down, and for there to be consistent and substantial majority of both voters and politicians in support of rejoining.

There is no clear sign of this happening, despite the wishful thinking of many.

The current governing party is in favour of Brexit, and the current opposition party (and likely next government) is not opposed to Brexit.

There is no visible shift in either party, and there is no reason to expect one.

Indeed there is a sizeable wing of the current governing party – and a body of voters – as energetically committed to Brexit as ever.

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And, even if there were a consistent and substantial majority of voters and politicians in support of rejoining, that would not be enough.

For, it would take the European Union – as a whole – to agree.

Believing that the United Kingdom can simply re-join just because we would want to do so is, I am afraid, just another form of British exceptionalism.

And if you were politicians in the European Union, looking at the ongoing political psychodrama of the current governing party over Brexit – and the dogged reluctance of the main opposition party to address the problems of Brexit – would you want the United Kingdom to rejoin?

Really?

Of course not.

There would be a non-trivial chance that there would be a Brexit all over again.

(For more on the practical difficulties of rejoining, see this useful piece by John Cotter.)

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The most difficult step – perhaps even harder than to get Brexiters to admit their Brexit was a mistake – is for Remainers to accept the United Kingdom is out of the European Union for at least a political generation.

What needs to be done is for practical politics to move to a post-Brexit consensus, where our politicians seek to place the United Kingdom in a sustainable and close (but outside) relationship with the European Union.

And to get the United Kingdom to be as much a part of the Single Market as possible, even if the nomenclature has to be politely different.

But – for both “sides” – this is not likely to happen.

Brexiters will see this as betrayal, and Remainers will see this as imperfect, and so both sides will resist it.

(Just as both Brexiters and Remainers voted down the Theresa May departure deal.)

So we will remain in this post-Brexit limbo.

And we can celebrate the anniversary of this limbo, well, every 1 January.

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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 and comments will not be published if irksome.