Category: European Union Law and Policy

Getting any quick international trade deal is easy, if you give in to the other side

15th November 2022

There is one way to get a “quick win” international trade deal.

That way is to just give in to what the other side want, but without gaining anything of equal value in return.

It really is quite easy.

All you have to do is turn up to the negotiation, ask what the other side’s negotiators want, give it to them, and – Hey Peston! – the United Kingdom has a trade agreement.

It is as easy as falling off a eucalyptus tree.

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This week in the House of Commons there was a debate on the Australian trade deal.

In that debate the former minister George Eustice said (and this should be read carefully):

“…the Australia trade deal is not actually a very good deal for the UK, which was not for lack of trying on my part.

“Indeed, as my right hon. Friend pointed out, there were things that we achieved, such as a special agricultural safeguard for years 10 to 15, staged liberalisation across the first decade and the protection of British sovereignty in sanitary and phytosanitary issues.

“It is no surprise that many of these areas were negotiated either exclusively or predominantly by the Department for Environment, Food and Rural Affairs on behalf of the UK team, but it has to be said that, overall, the truth of the matter is that the UK gave away far too much for far too little in return.”

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It gets worse:

“…we should not set arbitrary timescales for concluding negotiations.

“The UK went into this negotiation holding the strongest hand—holding all the best cards—but at some point in early summer 2021 the then Trade Secretary my right hon. Friend the Member for South West Norfolk (Elizabeth Truss) took a decision to set an arbitrary target to conclude heads of terms by the time of the G7 summit, and from that moment the UK was repeatedly on the back foot.

“In fact, at one point the then Trade Secretary asked her Australian opposite number what he would need in order to be able to conclude an agreement by the time of the G7.

“Of course, the Australian negotiator kindly set out the Australian terms, which eventually shaped the deal.”

Ooof.

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As regular readers of this blog will note, this idiotic approach to negotiations was pretty much also that adopted by the government of the United Kingdom with the withdrawal and relationship agreements with the European Union.

Instead of taking negotiations seriously, there were artificial deadlines imposed for domestic and media political consumption, regardless of the quality of the agreement.

In essence: the government of the United Kingdom did not and does not take international agreements seriously.

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Part of this lack of seriousness is down to faux-nostalgia.

The notion that because nearly two hundred years ago the United Kingdom could go around the world agreeing trade deals on its own terms.

The idea that, like some latter-day Richard Cobdens, we can pop across the channel and agree a free trade deal, and still be back for tea.

Indeed, the very phrase “international trade deals” is invoked and bandied about by supporters with Brexit with misty-eyed sentimentality.

Being able to enter into such agreements was, it was claimed, one of the advantages of Brexit.

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But.

International trade agreements are not creatures of sentiment.

International trade negotiations are perhaps the most hard-headed, unsentimental things one can imagine in the commercial world.

Indeed, international trade law is commercial law for grown-ups.

Any real benefits gained from such a deal are hard-negotiated and will come at a cost elsewhere.

And a benefit, in any case, may only have an overall marginal economic effect.

For forty-five years, the United Kingdom benefitted from the experience and expertise of the European Commission in negotiating trade deals, with the commission being able to deploy the clout of the single market and twenty-eight member states.

In this way, the commission were able to negotiate deals with mattered and were worth having.

That has now been thrown away, with the United Kingdom leaving the European Union’s common commercial policy and internal market.

What we have now have instead are bravado and bluster, and Elizabeth Truss asking what the other side want so that we simply can give it to them.

And we also have the moral hazard of Boris Johnson and David Frost agreeing to the Northern Irish Protocol and then saying we will renege on it.

We could not be in a less impressive place on the world stage.

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Yes, perhaps, Eustice should have resigned rather than go-along with what he knew to be a bad trade agreement with Australia.

Perhaps.

But it is a Good Thing that he has set out the real position now on the floor of the House of Commons.

The United Kingdom, in a post-Brexit world, is going to learn slowly and painfully that the superficial approach of Johnson and Truss to international agreements is disadvantageous.

Well, at least the limitations of this approach are becoming apparent.

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Removing all the European Union law in the United Kingdom may be a practical process on which the sun will never set

8th November 2022

Back in August 2016, a month-or-two after the Brexit referendum, I wrote the following at the Evening Standard:

“So extensive are the EU ties which bind the UK that they take at least a political generation to untangle. Gus O’Donnell, the former head of the UK civil service, has pointed out that it took Greenland, with a population less than Croydon and with only the issue of fish, three years to leave the old EEC. And in the Eighties the EEC was a far less complicated entity than the modern EU.

“Thousands of UK laws — nobody knows exactly how many — are based on EU law. Many of these laws only have effect because of the European Communities Act, which would need repeal or substantial amendment. Some of the laws have effect without any UK-implementing measure.”

The phrase I want to emphasise here is “nobody knows how many”.

Six years later, still nobody knows how many laws of the United Kingdom are based on the law of the European Union.

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This situation has to come to prominence because of the daft notion of the current government that somehow all the laws of the United Kingdom are based on the law of the European Union can be identified and replaced at speed.

The entire exercise is ludicrous, as well as probably impossible.

The idea can only have been conceived by someone with no real idea of how entangled domestic and European Union law was by 2016 (or 2019-2020, when we actually departed in practice).

It is not a question of simply going to a database and using the right search terms – say to find all the regulations made under section 2 of the European Communities Act 1972.

Even with those regulations many were revoked or amended other regulations –  so that, without considerable time, you would never know the full extent of the entanglement.

Regulations were also made under other statutes, and much European Union law took effect without needing any local enactment at all.

And the important thing to note is that at the time – 1973 to 2016 – nobody ever thought the whole thing would need to disentangled, and so nobody thought to keep any track of it.

This is why, with the hurried departure of the United Kingdom after the referendum, the whole problem was kicked into the the future with the notion of “retained European Union law”.

Such a disentanglement could not be done at speed before departure, and for the same reason the disentanglement cannot be quickly done now.

It matters not that some politician confidently asserts that “something needs to be done” by some artificial “sunset” date.

And to the surprise of nobody who knows about European Union law, entire tranches of European Union law are still being found:

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It will take a long time – perhaps decades, perhaps never – to unwind all the European Union law that had effect in the United Kingdom and replace or revoke it.

That is not a pro- or anti- Brexit statement, but the simple fact of the matter.

Some of these laws were championed by the United Kingdom when a member state of the European Union.

Some of the laws were hard-fought triumphs by United Kingdom ministers and officials.

Some of the laws are good and beneficial, and some are not good and need removing.

But this can only be done on a slow, methodical law-by-law basis.

As I averred back in August 2016: it may take at least a political generation.

The moment this is realised and accepted by the current government then we may be moving into a practical rather than an ideological understanding of our post-Brexit predicament.

That realisation, however, may itself take a political generation.

It is even likely to be a process on which the sun will never set.

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The significance of Rishi Sunak’s Brexit Delivery Unit

8th August 2022

Here is a tweet and video to treasure:

But other than adding to the gaiety of the nation – or to its collective despair – this video and the proposal of a “Brexit Delivery Unit” are significant.

They signify a great deal about Brexit, and about what has not been done or understood by those in the governing party.

The United Kingdom joined what became the European Union in 1973 and it departed the European Union in 2020.

That is over 45 years of accumulated law and policy.

Brexit was never going to be “done” quickly – it may never be done at all, if Brexit is taken to mean that all that law and policy is to be disentangled and reconsidered.

And a great deal of that accumulated law and policy was shaped by the United Kingdom because it suited the United Kingdom.

Going through each regulation or other legal instrument derived from our membership of the European Union, and assessing whether divergence is both possible and beneficial, will take an extraordinary amount of time and effort.

And during a cost-of-living and energy price crisis, with increasing inflation and during a European war, you would think that the finite resources of the British state would have greater priorities than such a review.

There was also, of course, an actual government department dedicated to managing the exit and its implications:

https://twitter.com/LLocock/status/1556635543575752707

The department was abolished because Brexit had been “done”.

One gets the sense that those in favour of Brexit did not realise the legal and policy magnitude of the task ahead, just as they did not appreciate the economic and logistics consequences of departure.

That was all mere detail, it would seem.

For Brexit was not actually done to solve any law or policy problem or to address any economic or logistics concern.

To the extent there was a primary reason for Brexit it was to regain sovereignty – to “take back control”.

Well.

This is sovereignty, for what it is worth – there are over 45 years of accumulated law and policy from our membership of the European Union.

Two years after we have departed the European Union, the leading politicians in our governing party still do not know what to do with all that law and policy.

And so we have a leadership contender in 2022 announcing there will be a “delivery unit” for Brexit.

Which is an implicit admission that Brexit has not yet been done.

Indeed, Brexit has hardly begun.

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Our new national pastime is pretending that Single Market membership is not a good idea

5th July 2022

We have a new national pastime in the United Kingdom, to complement complaining about the weather.

That pastime is pretending that the United Kingdom should not rejoin the Single Market of the European Union, even though it is obvious that we should rejoin.

The completion of the Single Market, of course, was in its execution something which owed greatly to the British Conservative politicians of the day, notably Lord Cockfield and Margaret Thatcher.

An array of practical proposals were promoted by the United Kingdom to make it easier to buy and sell goods and services throughout the (then) European Economic Community.

The contribution to the completion of the Single Market is something about which that the United Kingdom generally can rightly feel proud.

But we now have to pretend we do not want to be members of it.

You will recall a sensible outburst from a current government-supporting MP Tobias Ellwood and the response to it from the very chair of the Commons’ Foreign Affairs Committee Tom Tugendhat:

https://twitter.com/TomTugendhat/status/1532445501563469824

This blog covered that exchange here.

Tugendhat is an ambitious politician – and so one explanation for him to not openly admitting Ellwood was right is that it would frustrate his political ambitions.

But.

It is not just Tugendhat.

Here is another ambitious politician, Keir Starmer, the Leader of the Opposition:

Starmer contends:

“Under Labour, Britain will not go back into the EU. We will not be joining the single market. We will not be joining a customs union.”

Here Starmer avoids mentioning Peppa Pig, but we get the following imagery instead:

“The second step we would take is to tear down unnecessary barriers. Outside of the single market and a customs union, we will not be able to deliver complete frictionless trade with the EU. But there are things we can do to make trade easier.

“Labour would extend that new veterinary agreement to cover all the UK, seeking to build on agreements and mechanisms already in place between the EU and other countries – benefiting our exporters at a stroke.

“There was a story on the news the other day about a ‘wet wipe island’ that has formed in the Thames. Made of fat and oil and household rubbish one metre deep and the size of two tennis courts, it is blocking the flow of the river and changing the shape of the riverbed.

“You couldn’t imagine a better metaphor for the Tory Brexit deal. They have created a hulking ‘fatberg’ of red tape and bureaucracy. One that is hampering the flow of British business. We will break that barrier down, unclog the arteries of our economy and allow trade to flourish once more.”

Fine words.

Yet describing a “hulking ‘fatberg’ of red tape and bureaucracy” is one thing, actually unclogging it another.

Starmer – like Theresa May before him – seems to think that a pick-and-mix approach will somehow work – with the European Union happily agreeing to discrete things that will perfectly suit the United Kingdom.

Perhaps that will work, but it is unlikely to do so.

The political truth is that from Northern Ireland to professional qualifications and veterinary services, there is a glaring solution to the problems.

Membership of the Single Market.

Tugendaht’s excuse is about the United Kingdom not wanting to be a rule-taker.

But.

We are a rule-taker – and one with added bureaucracy, just for us.

Of course, the European Union may not quickly allow the United Kingdom to again be part of the Single Market.

Would you, if you were the European Union?

Why would you chance having to deal with more of the United Kingdom’s psychodrama and collective political breakdown since 2016?

So, yes – membership of the Single Market may be currently unrealistic and unlikely.

Yet that is not an excuse for this continued pretence that it would not be in our interests.

The 2016 referendum question was silent on membership of the Single Market – and there are several European countries that are part of the Single Market and not members of the European Union.

It was only because of Theresa May’s extreme interpretation of the referendum result that the United Kingdom left the European Union on the terms that it did.

And so we all now have to pretend that membership of the very Single Market that the United Kingdom shaped and crafted is somehow a Bad Thing.

It is a silly position to be in.

And as this blog has previously averred, we will only “move on” from Brexit when we can have a mature discussion about the merits of sharing a Single Market with the regulatory super-power with its hundreds of millions of customers next door.

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My Financial Times video on the Northern Irish Protocol Bill

17th June 2022

Over at the Financial Times I have done a video guided tour of the Northern Irish Protocol Bill, famed around the question of whether it is a breach of international law.

It is free-to-view and you can see it here.

Produced by the estimable Tom Hannen.

I am happy to respond to any sensible questions about the the video in the comments below.

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Taking the Devil’s name in vain: how the government may be deliberately misleading members of parliament about the legality of its Northern Irish Protocol proposals – a follow-on from yesterday’s post

10th June 2022

Yesterday’s post was very popular.

It was not published until the evening, and it already has had over 20,000 hits.

And it has been promoted by a former Irish ambassador to the United Kingdom and the European Union, one of Ireland’s leading journalists, and a Conservative former Lord Chancellor – as well as by the reporters and member of parliament whose work I used for the post.

Thank you to all of you who read and shared the post, and a special thank you to those of you whose support means I can free up time to put together posts like that (which in that instance took three days).

Here is a follow-up to the post which has come out from the subsequent discussion.

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It would appear that one function of the Eadie ‘advice‘ is so ministers can try to convince unsure backbenchers.

This possibility has been put forward by the Conservative former Lord Chancellor I mentioned, David Gauke:

Gauke here links to his recent New Statesman piece – which you should read – where the relevant sentence is:

“The sidelining of Eadie is highly irregular, especially as some MPs had previously been reassured that Eadie had opined on the legislation (he has, but not on the international law aspects).” 

This is significant in two ways.

First, the government is now reduced to lying to its own backbenchers.

And second, if this is correct then it also means that government backbenchers simply do not trust the Attorney General to be getting the law right, and want the comfort of a further opinion.

If so, this shows the further fall in the credibility of the Attorney General.

You will recall that during the Brexit debates, the then Attorney General Geoffrey Cox – a successful barrister – took a leading role in seeking to convince backbenchers about the legality of the then proposed deal:

That legal advice was later published.

We now know that this advice was not enough to convince enough backbenchers to support then Prime Minister Theresa May’s deal.

But the point is that members of parliament did not then question the credibility of the Attorney General in being the source of legal advice, just that they did not like the import of what he and May were saying.

The current Attorney General has had less of an opportunity to develop a career in private practice and so is a far more junior lawyer than Cox.

And although she is understood to have commissioned advice from public international lawyers (lawyers who specialise in treaties and other international agreements), the fact that she is advising that the proposals are legal carries little or no weight with government members of parliament.

So, if Gauke is correct, there has been a decline – perhaps a collapse – in how seriously the office of Attorney General is regarded politically.

And so members of parliament are having to be assured that the Treasury Devil is also on side:

This may explain the possible compromise I mentioned yesterday, where Eadie was asked to give an advice based on assumptions that the advice commissioned by the Attorney General was correct.

The backbenchers would then presumably not be told about the assumptions.

The Devil’s name would be being taken in vain.

And so the leak of the actual advice, which showed Eadie’s doubts about the validity of the Attorney-General’s advice, undermined this underhanded ploy.

The cover was blown from the legal cover.

It would therefore appear that the government was seeking to mislead its very own backbenchers over the legality of the proposals for the Northern Irish Protocol.

That is an extraordinary situation for the government to be getting into, and it does not bode well for the legal robustness of what is being proposed.

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Why Tom Tugendhat is wrong: we can only move on from Brexit when there can be a serious conversation about the United Kingdom and the Single Market

3rd June 2022

Let us start with two general propositions.

The first is that the United Kingdom has little manufacturing industry and few natural resources.

Many of the manufactured goods we buy are from abroad, as is much of the energy we consume.

The second is that non-tariff barriers impede any international trade in services.

This means that if there are, for example, shared standards and harmonised recognition schemes then selling services abroad will be easier than if there are not such non-tariff barriers.

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Bearing these propositions in mind, let us now look at a tweet from Tom Tugendhat, the chair of the House of Commons select committee and seen by many as the most sensible possible alternative Prime Minister in the current governing party.

Tugendhat is criticising a proposal from another Conservative politician, Tobias Ellwood:

https://twitter.com/TomTugendhat/status/1532445501563469824

Tugendhat’s tweet is worth thinking about, for it is significant.

One obvious point is that his tweet confuses the Single Market with the Common Commercial Policy, that is the European Union’s common trade policy.

They are distinct things – and it is possible to be part of the Single Market and still have an independent trade policy (and thereby ‘new trade deals’) – as the example of Norway demonstrates.

Another point about Tugendhat’s tweet is that it frames shared standards and harmonised recognition scheme as “EU laws” in respect of which the “British people” will have “no say”.

From a commercial – as opposed to a political – perspective those seeking to trade with our European Union neighbours still have to comply with Single Market rules over which they have “no say”.

It is just that such exporters now have added layers of bureaucracy – non-tariff barriers – to deal with so as to show that they comply with Single Market rules.

This is because the purpose of the Single Market was to remove such impediments and so, by now being outside of the Single Market, such impediments are restored.

The Single Market. of course, was driven through (in its current form) in the late 1980s by then Prime Minister Margaret Thatcher and the Conservative European Commissioner Lord Cockfield.

The Single Market may be the greatest achievement of Thatcher and her governments, at least in respect of what then became the European Union.

At a stroke, any trader in a member state could trade in another member state because of shared standards and harmonised recognition schemes.

Again, from a commercial perspective, the important thing about shared standards and harmonised recognition schemes is not their political origin, but that they exist.

And other European countries that are not members of the European Union are part of the Single Market.

There is no absolute reason why a post-Brexit United Kingdom could not also be part of the Single Market.

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But.

There is the question of influence and control.

Yet what is often missing in discussions about the future relationship of the United Kingdom with the European Union, is that shared standards and harmonised recognition schemes are necessarily outside the unilateral, absolute control of one ‘side’.

It would be completely open to the European Union and a post-Brexit United Kingdom to agree processes and policies by which both parties can agree to put in place shared standards and harmonised recognition schemes.

And to accept common positions on, say, competition law, state aid and public procurement, and consumer protection.

But without such engagement, our services-dominated economy will be increasingly estranged from European markets from Iceland to Cyprus, and from Finland to Malta.

In other words, we need to have a serious post-Brexit conversation about how the United Kingdom can be part of the Single Market so as to remove the non-tariff barriers to our service-dominated economy.

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To his credit, Tobias Ellwood wants that serious conversation.

His article should be read in full – not just the quotations and summaries you may have seen elsewhere.

Any wise supporter of the government should welcome such a contribution, as this conversation needs to take place.

Even if a government-supporter disagrees with what Ellwood actually says, a prudent government-supporter should respond positively to this attempt to move the conversation forward.

But, no.

The reaction from government-supporters shows we are still trapped in the toxic politics of Brexit.

As this Guardian article describes:

“A Tory MP and arch critic of Boris Johnson has sparked a backlash from Brexiters after suggesting Britain rejoin the EU’s single market to help ease the cost of living crisis.

“Tobias Ellwood’s comments were seized upon by allies of the prime minister as evidence that deposing Johnson would threaten the country’s more distant relationship with Brussels.”

It would appear that Brexit true-believers regard such thinking as somewhere between blasphemy and heresy, if not outright heathenism.

But, as the former army officer Ellwood expressly states:

“If an army general, mid-battle, is mature enough to finesse his strategy to secure mission success, then government should do the same. Let’s have the courage to dare to make operational amendments as we seek to leverage greater success.”

This is the sort of sane pragmatism that would make Ellwood the sort of captain you would want in the trenches in charge of those you care about.

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Now we come back to Tugendhat’s tweet and why it is significant.

Tugendhat could have not tweeted on this topic at all, or he could have tweeted that he welcomed this contribution to this important debate, or even that Ellwood made a good point that should be considered even if to be rejected.

But, no.

Tugendhat tweeted this instead:

https://twitter.com/TomTugendhat/status/1532445501563469824

There is nothing in Tugendhat’s tweet that shows he had actually read Ellwood’s article before tweeting about it.

And, as noted above, the third bullet point of Tugendhat’s tweet – ‘no new trade deals’ – is irrelevant, as being part of the Single Market does not prevent an independent trade policy.

So why tweet?

As there is not evidence of Tugendhat having actually read Ellwood’s article, and as there is evidence that Tugendhat does not understand that being part of the Single Market does not stop new trade deals, there must be another reason.

And that reason, of course, is politics – and that is why the tweet is significant.

It signifies that politically we cannot yet move on from Brexit.

We cannot discuss our post-Brexit relationship with the Single Market as that would somehow negate Brexit itself.

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I responded to the tweet as follows:

To which Tugendhat, in turn, responded:

https://twitter.com/TomTugendhat/status/1532489520033239040

To which I said:

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The fact that the United Kingdom should become part of the Single Market does not, of course, mean that we will ever do so – even if the economic and commercial advantages are stark.

And accommodation with the European Union over the Single Market certainly does not require re-joining the union.

But it does require leadership, realism and strategic negotiation, so as to build up joint structures and processes where the United Kingdom and European Union can develop their post-Brexit relationship.

In essence, the sort of leadership the United Kingdom will need from whoever succeeds the current Prime Minister.

But the problem is that we still have to pretend otherwise.

Just like we have to pretend it is a good idea to have a futile ‘war on drugs’, we have to pretend it is somehow not in our national interest to be part of a Single Market with almost every European country between Iceland and Cyprus, and between Finland and Malta.

The critical political question is how we manage to be part of the Single Market from the outside of the European Union.

(And I do not support the United Kingdom rejoining the European Union, and there is no reason to believe the European Union would have the United Kingdom back as a member state.)

It can be done, but it will be difficult – with (genuinely) tough decisions and a need for (genuine) leadership.

But the politics of Brexit and of our current Prime Minister means that even in 2022 we cannot yet have this adult discussion.

And that is the tragedy of our post-Brexit politics.

Indeed, the tragedy is that we do not yet have post-Brexit politics – we are still stuck in the politics of Brexit.

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The Metric Martyrs case – twenty years on

30th May 2022

Before Brexit, there were the Metric Martyrs.

The key legal case here was a set of appeals which were decided by the High Court in 2002, in a judgment now known as Thoburn.

The street-level appellants faced criminal sanctions and other legal impediments because they dealt their groceries and wares in imperial measures rather than metric measures.

Re-reading Thoburn some twenty years later – in the light of the United Kingdom’s departure from the European Union and this weekend’s ‘news’ about the government wanting to revive imperial measures – is an interesting exercise.

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The first striking thing about Thoburn is the complexity of the applicable law.

Few lawyers – if any – would find it easy to follow paragraphs 8 to 35 of the judgment, which sets out all the relevant legal provisions.

Even the judge who gave the decisions of the court found it a complicated mess, saying at paragraph 81:

“In the course of the hearing I made no secret of my dismay at the way in which the criminal offences relevant to the first three of these appeals had been created. It is a nightmare of a paper chase. I accept that there was no prejudice to these individual appellants, who knew well what the law was because they were concerned to campaign against it. But in principle, I regard it as lamentable that criminal offences should be created by such a maze of cross-references in subordinate legislation.”

(The judge was Sir John Laws – notable to non-lawyers for his name and for being the uncle of Dominic Cummings – and it would be great if commenters assume these two things do not always need to be stated in their comments below.)

This judicial observation has wider import.

It is the lot of regulatory law – especially that law that regulates commerce and retail – to be complicated.

And this in turn means the law – like the one regarding the shape of bananas – will not fare well against the urges of simplification and distortion.

On one hand, you had the accessible image of market traders pricing and weighing their goods in imperial measurements for walk-up customers in English towns.

And on the other hand, you have pages and pages of impenetrable legal-ese which sets out why doing such a thing is a criminal activity leading to criminal sanctions.

Few onlookers would side with the legal-ese.

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A second thing about the Thoburn case is just how hopeless the legal arguments were that were put on behalf of the traders.

Wide ‘constitutional’ submissions were made about ‘implied repeal’ and entrenchment of statutes – which were met by an equally wide-ranging ‘constitutional’ judgment.

This is why the Thoburn case is now – despite not being a Court of Appeal of House of Lords case – a staple of constitutional law teaching and essay writing.

The legal arguments were hopeless.

And this, in turn, was (in my view) a problem.

Many people at the time (and since) thought there was something not right about these prosecutions.

It was one thing to have common rules for cross-border trade within the single market, but it was another to prosecute and seek to give criminal records to local greengrocers and stall traders selling to local customers.

It seemed – to use a European Union concept – disproportionate.

But the hopelessness of the arguments at appeal indicates that here was a grievance here without a remedy.

There appeared at the time to be no way of practically contesting the disproportionate criminalisation of the grocers and the traders.

Even if you are (as I was and am) a supporter of the single market – and thereby of cross-border commercial standardisation and harmonisation – something just did not seem right about these prosecutions, but there was nothing that could be done about it.

And I submit that this sense of impotence in the face of what was perceived to be the legal impositions of the European Union was a contributing factor to what later became Brexit.

*

Weights and measures – like currencies – are both instruments and ornaments.

As means of exchange, such measures necessarily have to have a shared understanding – and anything which has a shared understanding will also tend to have cultural significance.

As this informative and fascinating thread by an author of a forthcoming book on weights and measures describes, one should not underestimate how important measures are to people:

https://twitter.com/jjvincent/status/1530905866689445888

I happen to have been born in 1971 and so was educated with metrification – and I still habitually think in miles, yards and feet, in stones and pounds, and in pints.

And this is despite not being especially patriotic, and not being opposed to metrification in principle.

I suspect it is not an idiosyncratic trait; I suspect many of you tend to think in imperial measures too.

*

But.

The government’s latest proposals. of course, do not make any sense.

This is partly because – after the Metric Martyrs case – both the United Kingdom and the European Union pulled back from strict applications of unified standards.

Supplementary indications of measures were to be allowed indefinitely – imperial markings as well as metric markings

And, in any case, often the relevant laws were home-made and not from Brussels:

As a former Lord Chancellor avers, this ‘policy’ is also a political rallying call which is made again and again:

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The United Kingdom’s move towards universal measurements predates membership of the European Union and its predecessor communities.

And over time, no doubt, these more ‘rational’ and internationally acceptable measures will take hold.

(Few now can reckon in pounds and shillings – which also went in 1971.)

Yet it is one of those areas where law and policy cannot easily outpace lore and culture.

Units of measurement are the means by which people understand the world about them and indeed understand the dimensions of their own bodies.

They will not easily shift – and perhaps some may never disappear altogether.

The current government is in deep political trouble – and so it is not surprising that it seeks to get the benefit of nostalgia and sentiment.

Such a government should be treated with disdain.

But changing the everyday practices and conventions of a people is a slow process – and with metrification it still has not ended.

Not by a country mile.

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What Theresa May got right (but also very wrong) about Brexit – a look at her striking intervention in the Queen’s Speech debate

11th May 2022

Theresa May is a far better as a former Prime Minister than she ever was as a Prime Minister.

Other living former Prime Ministers have all stepped away from the House of Commons – and have also avoided appointment to the Lords.

Hers alone is the voice of a former Prime Minister in parliament at a time of this generally dire premiership.

Her premiership was not a good one – and from her early blundering over Brexit ‘red lines’ flowed almost all of the Brexit problems the United Kingdom has since had to deal with.

(And, of course, she was a worse Home Secretary, where she instigated the vile ‘hostile environment’.)

But.

May got one thing right.

And that was – given the respective positions of the United Kingdom and the European Union – there had to be either a ‘backstop’ or a trade border down the Irish Sea.

She chose the ‘backstop’ – which, in general effect, meant that if the United Kingdom and Ireland/European Union did not agree a trade agreement, certain measures would have to be implemented in Northern Ireland in respect of cross-border trade.

That proposal failed to pass the House of Commons – indeed, those versions of the  withdrawal Bill suffered one of the heaviest government defeats in parliamentary history.

The new Prime Minister Boris Johnson – in a cynical manoeuvre that must have seen very clever at the time – dropped the ‘backstop’.

As this blog has previously set out, this was very much his measure – he changed the United Kingdom policy, he negotiated and agreed a revised treaty, he got it through parliament, and he obtained a majority for it in a general election.

Johnson used every power of the Prime Minister to get this new Northern Irish Protocol through Parliament, and at speed.

Parliament was denied any real opportunity to scrutinise the measure.

And Brexit supporters clapped and cheered this splendid wheeze so as to ‘Get Brexit Done.’

They are not clapping and cheering now.

For the cost of the Brexit which got ‘done’ was the Northern Irish Protocol.

At the time, this seemed a price Brexit supporters were willing to pay.

But now they do not want to pay it.

They want it both ways – they want the United Kingdom outside of the European Union but they now want to reject the only means by which that was possible in late 2019/early 2020.

Cakes, eating, and so on.

And so it was not surprising that May took an opportunity to respond to an intervention from a Northern Irish unionist MP who opposed her ‘backstop’ in the following terms:

She said:

“I put a deal before the House that met the requirements of the Good Friday agreement and enabled us not to have a border down the Irish sea or between Northern Ireland and the Republic of Ireland. Sadly, the Democratic Unionist party and others across the House chose to reject that, but it was an opportunity to have what the right hon. Gentleman wanted.”

*

Had May had her way, however, there would have been alternative problems.

This is because of her early ‘red lines’ blundering, the only two withdrawal agreements available by late 2019, were the ‘backstop’ and Johnson’s calamitous clever wheeze of a border in the Irish Sea.

And this is because of the fundamental problem – that has never been addressed – of how one maintains an open border on the island of Ireland with no customs or trade infrastructure, if Northern Ireland leaves the European Union customs union and single market.

Some problems do not have solutions.

And, as this blog has also previously averred, it is not enough for those critical of Brexit (and this government’s Brexit policy) to point and jeer at the government and remind ministers that they negotiated and signed the Northern Irish protocol.

It may be satisfying, but it is not sufficient.

And any significant move in Northern Ireland does not need a mere majority, but actual consent from the nationalist and unionist communities.

This was pointed out yesterday by a unionist politician who had been opposed to Brexit:

*

When May took office she insisted Brexit would mean Brexit.

She insisted that the United Kingdom would leave the European Union customs union and single market.

Yet a Brexit with the United Kingdom remaining within the single market was possible – and this is the basis on which other non-European nations trade with the European Union (as part of EFTA).

So she may have been right in her answer to the unionist politician yesterday.

But on a more fundamental level, she and other Brexit-supporting ministers got it very wrong.

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The Northern Irish protocol is both legal and constitutional – the significance of today’s appeal decision

14th March 2022

One of the features of having an ‘unwritten’ (that is, uncodified) constitution is that there is not often ‘constitutional’ litigation.

Even cases of the highest political significance are decided on technical points of law, with judges affecting to not be concerned about any wider implications.

But sometimes there is a case where the court is conscious of the constitutional significance of the matter before it, and today one such case was decided at the Court of Appeal in Northern Ireland.

We do not yet have the full judgment, though we have this detailed summary.

The case was about the legality of the Northern Irish Protocol.

At first instance the appellants – a group of pro-Union politicians – lost their challenge to the protocol’s legality, and so they appealed.

One ground was that the protocol was contrary to the Act of Union 1800.

Here part of the court’s summary reads as follows:

“The court said that Parliament was clearly sighted on the Protocol which was the end result of a “protracted, transparent, debated, informed and fully democratic process which decided arrangements for Northern Ireland post Brexit”.

“It said the terms were settled and made law after a long parliamentary process and it could not be suggested that Parliament was unaware of the changes that may be wrought.”

This is important.

Of course, there is a certain artificiality in saying MPs knew what they were voting for in detail – or even cared.

But – almost as a legal, or constitutional, fiction – parliament must have been aware of what it was doing.

And as such it would be wrong for a court to gainsay parliament.

In particular parliament had expressly legislated that previous legislation – including, by implication, the Act of Union – should be read so that they would be subject to the withdrawal agreement legislation.

And if they were subject to the withdrawal agreement legislation there was no conflict – parliament had already stated which provision would have the the priority.

The significance of this judgment is that the protocol is not only legal but also constitutional – which is not always quite the same thing.

The court has set out how the protocol fits within – and does not disrupt – the settled constitutional arrangements of the United Kingdom.

And it has done so not in a judgment cloaked by technicalities and affectations, but with an open acceptance that parliament should prevail.

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Comments are welcome, but they are pre-moderated and comments will not be published if irksome.