The urban legend of the boiled frog, Loki’s branching timelines, and public policy after Brexit

29th July 2021

I am still putting together my detailed piece on the Lugano Convention issue.

This is about how the European Commission has effectively vetoed the United Kingdom’s late (and panicked) application for participation in an arrangement for enforcing judgments in European Union and EFTA member states.

The piece looks at the causes of the current predicament – but also at the consequences.

The ‘so what?’ of any law and policy situation.

And sometimes the ‘so what?’ is not urgent and immediate – it is not eye-catching and headline-prompting and retweet-generating.

But it is serious all along.

And one only notices when it is too late.

*

Here the usual analogy is with the poor boiling frogs of urban folklore.

In reality, of course, the frogs, like other animals, would escape if they can when in ever-hotter water.

But a good analogy will never die, even if immersed in boiling water.

*

Another analogy – which is currently uppermost in the minds of fantasy and comics geeks (like me) – is that of branching timelines.

In Loki – a wonderful piece of television – the conceit is that there is an omnipotent and omniscient bureaucratic authority that monitors and regulates the timelines of the universe(s).

From time to time (pun intended), a thing happens on a timeline of a universe that means that there are stark deviations to that timeline.

And when those deviations in turn mean that there are significant new branches of reality, the bureaucrats-in-uniform intervene to correct the timeline.

*

Brexit is a new branching timeline in the history of the public policy of the United Kingdom.

Our public policy is now diverging from European Union public policy – slightly at first, and only becoming obvious over time.

But over that time, there will be many multiplying differences and discrepancies.

Those gaps will become wider and deeper.

But we are not in Loki.

There may not be some big-bang ‘nexus’ event to alert everyone to the huge gaps that will soon exist.

And we also do not have a time variance authority to step in to return us to the ‘sacred’ timeline from which we have departed.

We do not have the fantasy of some omnipotent and omniscient authority (and still less an omnibenevolent one).

*

This lack of a big-bang ‘nexus’ event is something, perhaps, that those campaigning for the United Kingdom to (re)join the European Union will not have as an advantage.

There may be no one spectacular sudden public policy failure to to which they can point.

Just a thousand inconveniences and misadventures, which will be endured and resented, but that will not mobilise and motivate a political movement.

We will be stuck with it.

We will be like a frog, but not one able to jump from boiling water

Instead, we will be a frog trapped in a bottle of our own making

**

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Exclusion from the Lugano convention – is this the legal cost of political toxicity?

28th July 2021

I am currently putting together a piece on the United Kingdom’s exclusion from the Lugano Convention, following Brexit.

The convention provides for the enforcement of judgments in European Union and (all but one) EFTA states – in essence, a judgment of a court in the United Kingdom can be enforced in Italy or Denmark and so on.

Without the convention, enforcement of a domestic judgment is less easy – and far more expensive and time-consuming.

The United Kingdom is seeking to re-join the convention from outside the European Union – but the European Union is effectively vetoing the application.

See this CNN thread here:

One thread in this sequence struck me – and my upcoming piece will be an assessment as to whether such a serious charge is valid:

*

If there is validity in this charge then this is indeed a concrete – and consequential – example of the ‘moral hazard’ of which this blog has previously warned.

Such infantile politics must have seemed very clever at the time – with claps and cheers from political and media supporters – but now the effects could be manifesting.

What is less clear is whether this is a serious legal problem as well as a political failure – will it make much difference in legal practice?

Or is its legal significance overblown – event if it is a political embarrassment?

I will post a link to my piece in a day or two when it is published.

**

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Politics v law and policy – a response to Dominic Cummings

26th July 2021

Late last night, Dominic Cummings posted this tweet, with a screengrab of a tweet from me from March 2019:

As a change from my usual daily blogpost, here is my thread in response:

Happy to deal with any comments below.

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Pointing out the United Kingdom government negotiated and signed the Northern Irish protocol is not enough – those opposed to the government’s post-Brexit approach also need a positive policy

13th June 2021

‘I told you so.’

These is perhaps the most dangerous four-word phrase in the English political lexicon.

And the danger is that the one who did tell others so then just shrugs, and does nothing more.

*

A political idiot does [x], even though you (and others) averred that [x] would be irresponsible and dangerous.

Of course: it is natural and right to point out the idiot did [x] even though the irresponsible and dangerous idiocy was both foreseen and foreseeable.

And this is what this blog did yesterday.

But.

It is not sufficient.

The government can (and will) just shrug off the criticism.

And a sufficient number of voters will nod-along with the government, regardless of these errors being pointed out.

Any sensible person knows that the government made serious mistakes forcing though Brexit at speed and without a plan, and in signing up to a withdrawal agreement without understanding or caring what it said.

It is bleedingly obvious.

But there is only so much purchase in pointing this out, and that purchase is unlikely to extend to changing any voters’ minds.

Something more is needed.

Something positive.

*

The biggest problem in the politics of the United Kingdom at the moment is that neither the government nor the official opposition have any substantial positive vision of the United Kingdom after Brexit.

The government, having obtained Brexit, is the proverbial dog that caught the car.

And the opposition are refusing to engage with Brexit at all, fearful of the repercussions of mentioning it – and a cowered opposition is, of course, a useless opposition.

*

It is fun – and easy – to point out the government entered the Northern Irish protocol of its own free will.

The pressure to sign it at speed was self-inflicted.

We know this, and they (if ministers are honest with themselves) know this.

Yet the protocol was only, in effect, a backstop and an insurance policy (though less of a backstop and an insurance policy than the proposed formal arrangements it replaced in the course of the negotiations).

And what is the positive vision of the post-Brexit relationship between the United Kingdom and the European Union?

Does anyone – anyone at all – have a positive vision of what happens next?

*****

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The government’s Brexit problems were foreseeable and foreseen – but ministers did not care and went ahead anyway

12th June 2021

Some things remain true even when they are said again, and again, and again.

One of these truths is that a Brexit done at speed was never going to go well – and that the government of the United Kingdom refusing extensions (either to the Article 50 period or the transition arrangements) was gross irresponsible idiocy.

Ministers placed themselves under self-inflicted pressure and suffered self-imposed weaknesses.

All to ‘get Brexit done’.

Another of these truths is that if the United Kingdom left the single market then one of three things would have to happen.

Either the United Kingdom would have to stay aligned with the single market anyway, or there would be a border on the Irish mainland, or there would be a border in the Irish Sea.

Any other possibility would be fanciful, if not fantasy.

A further truth is that there was little point going through with Brexit until and unless the United Kingdom had a settled and realistic view of what would then follow, in terms of its relationship both with the European Union and with the rest of the world, and in terms of what would happen in respect of Northern Ireland.

But on this basis the United Kingdom still does not know what we want, though we want something.

The only possible merit, from a Brexit point of view, of this rushed, muddled and directionless Breixt is that, if the process had lasted any longer, it may well have been reversed.

There may have been other Brexits possible in theory, but this was perhaps the only one possible given the politics before the 2019 general election.

This is not a merit from any sensible and objective view, but perhaps it explains why this botched Brexit did happen, instead of any other.

All to ‘get Brexit done’.

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Beware Lord Frost’s ‘legal purism’ line – for it means a disregard for the rule of law and is strategically unwise

 9th June 2021

There is a new line-to-take.

This line is that a requirement to comply with legal obligations is to be dismissed as ‘legal purism’.

This line is being promoted at the moment by Brexit minister Lord Frost in respect of the obligations of the United Kingdom under the Northern Irish Protocol (obligations that, of course, Frost himself negotiated and endorsed).

Frost avers that for the European Union to require the United Kingdom to comply with this obligations is to take a ‘purist’ approach.

*

For many years the United Kingdom was protected from the European Union’s legal(istic) approach to its engagement with ‘third countries’.

As one of the big three member states, it generally got its way internally, and had a number of opt-outs for things it did not like.

Trade agreements were left to the European Commission to negotiate: the United Kingdom just benefitted from the results like a teenager benefiting from the washing and ironing magically being done.

And now we are on the outside – looking in on an international organisation that, more than any other in the world, is a creature of law.

And the European Union takes law very seriously.

We are going to have to get used to it.

*

That said: it is not unusual for a party to a serious agreement to want to re-negotiate terms.

And mocking Frost for wanting to change something he so recently approved can only go so far, and it does not rid us of his perceived concerns.

Perhaps there is a case for the protocol to be amended, or perhaps not.

But, either way, it is a folly for him to approach the problem by dismissing legal obligations as ‘purist’.

For, if this is the United Kingdom’s casual approach to law, why would one expect the United Kingdom to abide by any replacement legal obligations?

By attacking the very notion of legal compliance, Frost is not helping the long-term interests of the United Kingdom.

What he is doing is a silly thing, and he should not go there.

The rule of law matters – pure and simple.

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The Ghost Regulation of Brexit – how Leave campaigned for the repeal of a regulation that never existed, and why Remainers should not gloat

5th June 2021

To the extent there was a positive case for Brexit, it was in the broadest terms – ‘taking back control’ and so on.

The impetus was primal – it did not matter what we were to be taking back control of, we were taking back control, and that was enough.

Remainers may scoff at this, but this was a basis on which Leave won and Remain did not – and the glaring fault of the Remain side was a lack of an equal and opposite positive case.

But.

One problem of any general case is that it can lack in the particulars.

And it was a feature of the Leave side that they rarely specified what would actually change in substance if the United Kingdom (were/) was to leave the European Union.

A consequence of this vagueness was that once the referendum vote was made for Brexit, there was a range of possible models for the further relationship with the European Union, from hard Brexit to Brexit-in-name-only.

Another consequence was a sense of ‘what now?’ – like the dog who caught the car.

Of course: given the general case for Brexit, this did not matter – and it still does not matter.

A case not made on detail is not defeated by that lack of detail.

*

Yet the case for Brexit does produce some telling (and entertaining) examples.

The journalist Marcus Leroux showed one recently on Twitter.

First, the question:

Then the answer given:

That was (presumably) in 2016 – but earlier in 2021 Longworth was still citing this ergonomics directive:

(I have checked – the ergonomics directive was an example given in that 2021 Times piece.)

And here is the good (and fun) kicker:

The directive never existed.

It is a ghost directive.

And yet from at least 2016 to 2021 it was cited as an example of the point of Brexit – and published as such this year in a national newspaper.

Leroux continues:

And here is the passage in the 2013 government report (three years before the referendum):

Cogito ergonomics sum – or not.

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Of course, Remainers may gloat at such a prize example of idiocy – but it no more discredits Brexit than if it were true, because that was not why people voted and campaigned for Leave.

And the fact it has taken until 2021 for this to be exposed (at least to my knowledge) shows it was not uppermost in the minds of many following Brexit.

There is also, no doubt, ghost facts on the Remain side as well.

That said, this ghost regulation shows that it was perfectly possible for the United Kingdom to resist unwanted regulations in the European Union before 2016.

And there is the prospect that the regulatory regime the United Kingdom develops now was also possible within the European Union.

If so, this means – in a practical regulatory sense – there was no point in Brexit.

But at least we took back control, and we caught the car.

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What is Force Majeure? And why is it now being mentioned in the context of Brexit?

18th May 2021

A historian of ideas – probably Isaiah Berlin – once averred that most philosophical systems were ultimately simple affairs.

What made them complicated, it was said, were the elaborate defences and anticipations of objections so as to make the arguments advanced harder to attack or dismiss.

I have no idea if this is true, as I have no head for philosophy, but I have often thought the same can be said for contracts.

Most agreements are also relatively simple – and most of us, every day, enter into oral contracts which are nothing more than ‘I give you [x] in return for [y]’.

Written out, such contracts would not need to be longer than one sentence – a single clause.

What makes a legal agreement complicated – and what can make a written contract go on for hundreds of pages of clauses and schedules – are the provisions dealing with what will happen if one party does not do [x] or the other party does not do [y].

This is because most written contracts are not there for when things go well: they are there for when things go badly.

The more provisions that are in a contract, the more allocations of risk and protections for the parties if there are problems.

For high-value or significant agreements, teams of lawyers will painstakingly (and often expensively) go through every possible and foreseeable eventuality, and will then allocate risk accordingly as between the parties.

There will also be detailed provisions setting out the processes for resolving and remedying problems.

In most circumstances, those provisions will not ever be used.

(As a general though not universal rule, the more effort that goes into putting a contract together, the less scope for genuine disputes later.)

But sometimes a thing can happen to disrupt an agreement that has not been addressed in the agreement.

This disruptive event can have three qualities: (1) it will be outside the control of the parties (else all you would have is a potential breach); (2) it will be outside of the allocations of risk in the agreement (else the agreement already deals with what will then happen); and (3) it will affect the performance of obligations under the agreement (else it would not matter).

In legal language, such a disruptive event is said to ‘frustrate’ the agreement.

*

In English contract law, such frustrations often lead to unfair and uncertain results – and every law student will know of the so-called ‘coronation cases’.

Lawyers elsewhere, however, approached this sort of predicament differently and developed the doctrine of ‘force majeure’.

A force majeure event is a thing that (1) is outside the control of the parties; (2) is outside of the allocations of risk in the agreement; and (3) affects the performance of obligations under the agreement.

If the doctrine applies there is then some certainty of what will then happen in the event of a force majeure event – sometimes the consequences can be agreed between the parties, or the consequences may be provided for under the general law.

Force majeure, however, is a residual thing – if the parties have foreseen the particular risk and allocated that risk then the terms of the agreement should take priority.

This means (generally) the more detailed the agreement, the more limited the scope for force majeure.

The analysis set out by me above is from the perspective of an English commercial lawyer but the doctrine also exists in what is called ‘public international law’ – that is the law that regulates relations between countries (and also international organisations):

You will see the public international law document quoted provides that a thing cannot be a force majeure event if (a) it is because of the conduct of the state seeking to rely on it and (b) the risk of it happening has not been allocated.

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What all this means is that it is often difficult in practice to rely on force majeure when there is in place a detailed and specially negotiated agreement.

This is because the parties will have foreseen and addressed most practical problems.

And even if there is a force majeure event, that also does not mean it is a ‘get out of an agreement free’ card – as all that may result is a temporary relief from fulfilling an obligation until the force majeure event is over.

*

The reason why force majeure is in the news is because David Frost, the United Kingdom minister responsible for Brexit negotiations, appears to think that force majeure can be relied on to relieve the United Kingdom from its obligations under the Brexit withdrawal agreement and its Northern Ireland protocol.

The news report says:

‘Force majeure is a legal concept through which a party can demand to be relieved of its contractual obligations because of circumstances beyond its control or which were unforeseen.

‘The suggestion is contained in a 20-page letter the UK has sent to the European Commission.’

To which the response should be: good luck with that.

*

In practice, any reliance on the doctrine of force majeure by the United Kingdom will come down to two particulars: (1) what is the (supposed) particular force majeure event, and (2) what is the particular obligation that is (supposedly) affected by that event.

Until this is known, one cannot be completely dismissive.

But.

It is difficult to believe that there is any event that (1) affects the performance of a particular obligation under the Northern Ireland Protocol which (2) is not within the control of one of the parties and (3) is not addressed in the protocol.

*

 

And in response to the thread on Twitter on which this blogpost was based, this scepticism was endorsed by Jonathan Jones, who was the United Kingdom’s chief legal official during the Brexit negotiations:

*

That the United Kingdom government had not thought through or cared about the detail of the withdrawal agreement was not unforeseeable.

It was, to use another technical legal term, bleedingly obvious.

It is difficult to conceive of anything that could be a force majeure event that is not already subject to the provisions and processes of the Northern Ireland Protocol.

On the face of it, therefore, the resorting to ‘force majeure’ by the United Kingdom looks desperate – a makeweight argument deployed for want of anything more compelling.

There is, however, the delicious legal irony in the circumstances of the United Kingdom seeking to rely on a French legal doctrine used to cure the inadequacies of English law-making.

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Wanted by HMG: Someone to make sense of Brexit

17th May 2021

Some things are almost beyond parody.

The government of the United Kingdom, almost five years after the Brexit referendum, wants help on identifying post-Brexit opportunities. 

The natural response to this is, of course, to laugh like a drain – and to then despair.

But it also worth reflecting on.

One of the strengths (if that is the correct word) of the Leave campaign was that it was primal in its message – and what is primal is usually inexact, if not vague.

And with such primal force, Leave won and the Remainers lost.

Brexit was forced through.

But for every strength there is a weakness.

And at this point of the process, those who have forced Brexit through will say, in effect: ‘what now?’

Those who were opposed to Brexit will scoff and hope that such an implicit admission discredits the cause of Brexit.

But what has power because of a lack of detail will usually not falter because of a lack of detail.

There was never any particularised plan for Brexit: it was instead a political roar of anguish and defiance and (for many) misdirection.

David Frost could go even further and say freely and expressly: we want outside input in identifying opportunities because we do not have a clue what to do next.

Those who supported Brexit would either shrug or nod at the sentiment.

And as a wise person once said: there are no problems, only opportunities – it is just that some opportunities are insoluble.

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The European Super League and law and policy

20th April 2021

The proposal of a supposed European Super League is daft and dreadful.

Only the most partisan supporters of the clubs involved and those who will be making money out of the proposal are able to make a positive case for the idea.

Many supporters of the clubs involved, as well as the other football supporters, just see it as a cynical attempt to to exploit and develop cash revenues at the expense of the wider interests of the sport.

But.

An idea being daft and dreadful does not make it also illegal.

The law is not magic and there is no wand for any politician to say ‘I prohibit you thus’.

In particular, what is called ‘competition law’ – which prevents abuse by monopolies and the forming of cartels – is not likely to be of any use in preventing the initiative.

Indeed, competition law may help more than hinder the establishment of a rival international international football league.

Only a handful of clubs are involved, and there is no inherent reason why UEFA should have a monopoly on European club competition.

The fact that it is an artificial pop-up international league, where many of the participating clubs have not even won a European club competition before, is neither here nor there.

Nor is the fact that many clubs (such as my own, Aston Villa) that have won such competitions are excluded relevant (and I hope my view would be the same even if Aston Villa had been part of this misconceived project).

It is a new league that will be in competition to the existing arrangements, and the starting point of the relevant law is that competition is a good thing – rather than monopolies.

The European Super League may well rob the clubs, the players and the supporters involved of something valuable – genuine European football – and replace it with an artificial contest with regular matches against Tottenham Hotspur.

But that does not create a legal remedy.

If anything, competition law may undermine the attempts of the status quo to quash the innovation and provide a defence to threatened retaliatory or punitive measures.

If the proposal is to be defeated – it should be by means of politics and commercial realities, not litigation.

Perhaps this exercise in misplaced exceptionalism and a false sense of the international importance of those supporting the measure will collapse under the strain of its contradictions and impartibility before it gets going.

But then again, that is also what said would happen with Brexit, and it did not.

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