The best blogger about Brexit is Chris Grey and his weekly blog is a valuable resource in understanding Brexit as it has gone along.
In particular, the blog correctly emphasises that at each step there were choices made and not made – that things could have gone differently – and how (usually) the bad decisions ended up being made.
As the tricks of mind of hindsight and evasion begin to have their effects on the collective memory, Grey’s blog will be a crucial reminder of how things were at the time.
The warning is that the current government is – out of the various options available – choosing one which is especially damaging for the United Kingdom.
But the option being chosen is – in the minds of the Brexiter ministers – validated by the experience (so far) of ‘getting Brexit done’.
Of course, for the reasons that Grey sets out, the Brexiter ministers have drawn the wrong lessons from this formative experience.
Part of this is down to personalities – in particular the personalities of Frost and prime minister Boris Johnson.
And politics often does come down just to personalities.
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But.
There is a risk that a preoccupation on personalities means that the lack of alternative policies being promoted is overlooked.
For although the Frost-Johnson approach is, as Grey avers, ‘a sorry mixture of blather, nonsense, disingenuity and dishonesty’ – it also has another quality.
It is the only post-Brexit policy in town.
The Labour opposition has no post-Brexit policy – and is (no doubt for strategic and tactical reasons) opting not to put forward an alternative policy.
Those who are former remainers and are seeking the United Kingdom to (re)join the European Union do not have a post-Brexit policy as such – unless simply not wanting to be outside the European Union can be a policy.
And the moderate and practical Conservatives who might have advocated a more constructive post-Brexit policy were largely purged from the house of commons at the last general election.
So there is a vacuum where an alternative, constructive post-Brexit policy should be.
In contrast to this void, Frost-Johnson not only have a policy but also maintain that the policy is validated by the experience so far of Brexit – and so it has a certain superficial plausibility.
And until and unless there is another post-Brexit policy in town – which accepts the brute political fact of Brexit but seeks to go in another direction – then the Frost-Johnson approach will face no challenge other than from reality.
Such an alternative, constructive policy is perfectly possible – as Grey’s blog and other commentary shows, there are choices available.
But unless the politics of this post-Brexit period change radically, the Frost-Johnson approach has the political town to itself – and it is very good at misdirection and evasion when things go wrong.
Although commentators can point this out in real-time that will make no difference unless opposition politicians also act in real-time to put forward other post-Brexit policies.
And – yes, the Frost-Johnson post-Brexit approach can and should be blamed for many things, but it cannot be blamed for a lack of policy and political alternatives.
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This, of course, from a United Kingdom government that repeatedly boasted of its readiness for a swift withdrawal from the European Union without any agreements in place.
Now the government of the United Kingdom wants grace periods – the latest in a succession of extensions and ‘implementation’ and ‘transition’ arrangements, all with the effect of the government of the United Kingdom pretending to itself and others that there has not been any actual departure from the European Union.
And this is not in respect of any old international obligation imposed by some outside body – but in respect of obligations that this United Kingdom recently negotiated, signed, obtained a mandate for at a general election, and rushed through parliament without scrutiny.
It is all rather daft.
One of the wonders of the age is that so many political and media supporters of the government still clap and cheer at these self-inflicted pratfalls.
‘Following the UK government’s statement today, Vice-President Šefčovič has expressed the EU’s strong concerns over the UK’s unilateral action, as this amounts to a violation of the relevant substantive provisions of the Protocol on Ireland/Northern Ireland and the good faith obligation under the Withdrawal Agreement.
‘This is the second time that the UK government is set to breach international law.’
This response from the European Union indicates not only why the threatened unilateral breach is daft – but also why it is also dangerous.
The post-Brexit future of the United Kingdom now depends on being able to be taken seriously as an independent international trade partner.
But each signal that the government of the United Kingdom will casually breach obligations into which itself negotiated and entered is a signal that the United Kingdom is not to be trusted.
This bad faith will have two effects.
First, doors will silently close on the United Kingdom – as why would any trading nation strike a substantial deal with the United Kingdom when the United Kingdom shows itself willing to break such an agreement within weeks?
And second, those agreements that do go ahead will have built into them protections and allocations of risk to address the United Kingdom’s untrustworthiness.
No sensible country watching any of this will assume there will be good faith from the United Kingdom in any international agreement.
The trade negotiators of the United Kingdom may as well all turn up to any negotiation sessions wearing sandwich boards saying ‘kick us’.
This is the moral hazard that the United Kingdom has created for itself.
And it is the very last thing a country in the position of the United Kingdom should be doing, as it moves into its post-Brexit future.
Indeed, the government should be doing the opposite: making sure that every move and statement is geared towards building up international credibility.
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As the historian Robert Saunders avers, the ultimate problem here is honesty – with itself and its supporters, as well as others:
So many of our Brexit problems have a common source: the govt's refusal to be honest about the deal it negotiated. It persistently represents its own choices as hostile incursions, to be repelled by a sovereign state. It's a case-study in how dishonesty drives bad policy. THREAD https://t.co/kaWsU2UOGg
That this observation is, well, so obvious would make one think there could perhaps be a quick moment of realisation – that the government and its supporters will realise the folly of their bad faith.
But there is a real risk that the government of the United Kingdom will keep on with this daft, disastrous and dishonest approach – as the marginal political gains seem preferable to facing up to the structural and strategic damage.
The adverse consequences will just be factored into elsewhere in the international arrangements (and lack of arrangements ) of the United Kingdom.
There is no such thing as a free lunge to lawlessness and bad faith.
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One of the wisest and most perceptive of political commentators is Rafael Behr – and at the end of a recent wise and perceptive column is this wise and perceptive observation:
‘For the true believers, a good Brexit is one that keeps the grievance alive; that makes foreigners the scapegoat for bad government; that continues to indulge the twin national myths of victimhood and heroic defiance. Measured for that purpose, Johnson’s pointless Brexit is perfect.’
Another commentator Mujtaba Rahman makes similar points in this depressingly plausible thread:
I've been of view for some time that TCA represents high point in what's likely to be a difficult & deteriorating UK/EU relationship. Despite public pronouncements to contrary, in private, officials on both sides now acknowledge that this seems likely 1/5
Are things likely to now get worse – or at least not get any better?
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As I set out in this Financial Times video, the trade and cooperation agreement is structured deliberately as framework for ongoing negotiations between the European Union and the United Kingdom:
This requirement for ongoing engagement is a feature – and not a bug – of the departure arrangements.
There are institutions and processes in place for constant dialogue – and five-yearly cycles are expressly envisaged for more fundamental shifts in the relationship.
The formal relationship will be, and is intended to be dynamic, not static.
This was, of course, always likely to be the case with a Brexit which has been conducted at speed and with little or no planning or indeed thought.
Many things were left undone with the intention of dealing with them later.
But whatever the explanation, one thing that can be said with certainty is that the Brexit we have had is not a ‘once-and-for-all’ event where ‘with-one-bound-we-were-free’.
So regardless of the mood of politicians the law and policy process of Brexit has not gone away – and may well never do so, at least for a political generation or two (or three).
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Law and policy is one thing – and politics is another.
One can perhaps envisage a future – even under the current arrangements – where the Brexit issue is de-intensified, and where everyone gets on in a post-Brexit context.
But.
If the observations of Behr and others are correct such an outlook is unduly optimistic.
Many Brexit arguments are instead now beginning – and will become all the more intense because now they have supposed facts of ‘EU v UK’ to feed off, as opposed to the definite fictions.
If this is the case, then there will be implications for the framework provided by the trade and cooperation agreement.
For that framework is intended implicitly as almost a technocratic device – a means by which two friendly entities merely and boringly manage a relationship, making adjustments as they go along.
Talking shops, not boxing rings.
Less clear is how the trade and cooperation agreement – and also the Ireland/Northern Ireland protocol of the prior withdrawal agreement – will take a never-ending storm of partisanship and hostility.
That is not what these agreements were designed for.
The clue is in the ‘cooperation’ part of the very name ‘trade and cooperation agreement’.
Cooperation it says, and not confrontation.
It is not a trade and confrontation agreement.
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Yet.
Few things are inevitable in human affairs.
It is still only February – the month after the Brexit transition arrangements came to an end.
Nothing that has so far happened can demonstrate with certainty what the first few years of Brexit will be like.
Things may calm down, or things may get far worse, or something new may come along which changes everything.
All that said, however, this early volatility indicates that any easy and quick passage of the United Kingdom to full participation in the European Union single market and customs union is unlikely – and still less the prospect of rejoining.
Even if things do calm down, they are now unlikely to go back to how they were.
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The key political question now is whether the government and its political and media supporters can themselves ‘move on’ from Brexit.
For if they cannot politically ‘move on’ then the Brexit withdrawal and cooperation arrangements (which this government itself negotiated, signed, won an electoral mandate for, and implemented into law) will be politicised and contested in the same way membership of the European Union was politicised and contested.
And it is not inevitable that the Brexit withdrawal and cooperation arrangements will be able to withstand such sustained political assaults.
The Brexit withdrawal and cooperation arrangements may have replaced full membership of the European Union, but that does not mean there is in turn an even-smaller Russian doll of a formal relationship available if those arrangements fail.
If the Brexit withdrawal and cooperation arrangements crash, there may be nothing to replace them.
Brace, brace.
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For as this blog as previously averred – and as I set out in this Financial Times video – Brexit will be a negotiation without end.
This is because in part of the enormity of the issues that still need to be settled – but it also because of the deliberate structure of the withdrawal agreement and the trade and cooperation agreement.
Both of the Brexit agreements create institutions and frameworks for ongoing negotiations, and negotiations, and negotiations.
That the ‘delivery’ of Brexit will be an ongoing matter for substantial and intense engagement with the European Union is a feature of the withdrawal arrangements, not a bug.
The content and form of the exit agreements are not about once-and-for-all and one-bound-and-we-are-free.
Regardless of the personalities involved – Frost is, in effect, taking over from Michael Gove as the cabinet minister responsible for Brexit, and Gove is a politician many have very strong opinions about – this is a sensible and welcome appointment for four reasons.
First, it shows the government has realised that the task and tasks ahead for Brexit are such that it needs a dedicated minister at cabinet level (even if not, strictly speaking, a secretary of state).
Indeed, the United Kingdom’s relationship with the European Union is likely to be a far more visible and prominent feature of public policy after Brexit than before.
And the cabinet office – and thereby Gove – has many other responsibilities.
Second, it indicates that the government has realised the folly of creating a special pop-up department for the purpose of dealing with Brexit and is instead working with the grain of the planks of Whitehall than against them.
The cabinet office has many faults, but it at least has the departmental weight, and the expertise and (now) institutional memory on Brexit, that an entirely new department would lack.
Third, as Frost was the United Kingdom’s negotiator of the trade and cooperation agreement, there is a benefit for him also being in place for the negotiations that are to take place within the framework of the agreement.
The many delicate compromises of the agreement, and the agreed processes established to address hundreds (if not thousands) of technical issues (as well as various big ones) will not be – or should not be – news to him.
And fourth, the appointment regularises the position of Frost in the government – making him a formal minister so as to end his limbo state as a politicised adviser and ‘sherpa’.
As such he will be responsible to parliament directly.
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Not all government decisions – even with Brexit – are calamitous.
Sometimes the government of the United Kingdom can surprise you and do something (eventually) that makes sense.
Of course: there should have been in place a dedicated cabinet minister for Brexit all along – and, if so, various problems over the last year may not have the effects that they did.
But the primary significance of the appointment is that it implies an official acknowledgement that the real work of Brexit is still to come.
If so, perhaps Brexit reality is finally seeping in.
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Article 16 of the Protocol on Ireland/Northern Ireland seems to be fated to become one of those legal provisions known by their number alone, like Article 50 or Section 28.
The provision has already been the feature of a political controversy, when the European Commission made the horrible mistake of invoking Article 16 in respect of proposed regulations about the coronavirus regulations – a proposal that was promptly, and correctly, withdrawn.
The prime minister of the United Kingdom Boris Johnson has also been reported as saying that he would be minded to trigger Article 16 in certain circumstances.
In these circumstances, a working knowledge of what Article 16 says, and does not say, may be useful for those who follow public affairs.
This post provides a basic introduction to the provision, and it complements a video that I recently narrated for the Financial Times.
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As a preliminary point, just as one does not simply walk into Mordor, one should never go straight to a clause or other provision within a wider legal instrument without an understanding of the purpose of that wider legal instrument.
By analogy: one can perhaps make sense of a line of computer code, but one also needs to understand how that line of code fits in the wider program to elicit its full meaning.
Similarly, an undue focus on the wording and contents of a single provision in any legal instrument can be misleading.
Every article, clause, section – or whatever word used for a discrete portion of legal text – has a context.
The protocol, in turn, does not exist in isolation.
The protocol is attached to the Brexit withdrawal agreement – one of the two vast and complex international agreements between the European Union and the United Kingdom that provide the legal framework for Brexit.
The recitals to the withdrawal agreement – which (literally) recite the background and shared understandings of the parties to that agreement – describe the purpose of the the protocol:
Not just specific, but ‘very specific’.
You will also note the word ‘durable’ – and this indicates that it was the shared understanding of the European Union and the United Kingdom that the protocol would not be a temporary arrangements.
Article 125 of the withdrawal agreement then provides for how and when the protocol takes effect:
You will see Article 16 is not included in the provisions that had immediate effect on the departure of the United Kingdom from the European Union – and so Article 16 has only had legal force since 1 January 2021.
The other main mention of the protocol in the main withdrawal agreement is that there shall be a specialised committee dealing with the protocol as part of the ‘Joint Committee’ that oversees the agreement:
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Now we can turn to the protocol itself.
Confusingly – and welcome to European Union legal instruments! – the protocol itself has its own recitals and articles.
And the protocol has a lot of recitals – twenty-three recitals (as opposed to nineteen operative articles).
Each one of these recitals sets out expressly a shared understanding of the European Union and the United Kingdom.
In particular, the government of the United Kingdom has put its name to each one of the recitals as a statement of its own understanding.
The recitals are not agreements in themselves, and they are not legally enforceable by themselves, but they do set out the common understandings of the European Union and the United Kingdom that are relevant to the articles that follow.
And these recitals, in particular, are significant:
And:
Note the word ‘guarantee’.
And:
And:
A common response from those unhappy with the protocol is to insist something about what the Good Friday Agreement does and does not provide in respect of a ‘hard’ border.
These recitals, however, do explicitly set in firm and emphatic language the shared understandings of the European Union (including Ireland) and the United Kingdom in respect of there not being a hard border.
And this is in the very ‘oven-ready’ withdrawal agreement for which Johnson and the Conservative Party won a mandate at the December 2019 general election and that was then endorsed by the Westminster parliament.
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Now the articles – the substantive operative provisions that are entitled to have legal effect as between the parties.
You will see that the articles provide for substantive obligations in respect of the free movement of persons and goods (and Article 5 in turn incorporates an annex listing hundreds of European Union regulations and directives).
There are also provisions for State aid and VAT.
The protocol is, in effect, the legal mechanics for Northern Ireland remaining, in effect, part of the European Union single market and customs arrangements whilst still being part of the United Kingdom single market.
It is a complex and – regardless of one’s political views – remarkable piece of legal drafting, especially given the rush of the exit negotiations.
But as with any legal instrument – especially ones devised at speed and in respect of sensitive issues – there will be problems and disputes and unintended effects.
And this brings us to Article 16.
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Article 16 comprises just three paragraphs:
The article is entitled ‘Safeguards’ – and not, for example, ‘Sanctions’ or ‘Retaliatory measures’.
The first paragraph then provides the triggers for the safeguards.
There are two triggers.
First: ‘if the application of this Protocol leads to serious economic, societal or environmental difficulties that are liable to persist’.
Here note the requirements that the difficulties need to be ‘serious’ and ‘liable to persist’ – that it, not trivial or temporary.
Second: ‘if the application of this Protocol leads to…diversion of trade’.
Again, ‘diversion’ indicates something significant and lasting.
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If either of these triggers are met then either the European Union or the United Kingdom ‘may unilaterally take appropriate safeguard measures’.
Note the requirement that the measures be ‘appropriate’ – and also (deftly) the measures have to be ‘safeguard’ measures, and not any old measures.
Paragraph 1 of the article then also adds further requirements in respect of the scope and duration of the safeguard measures, and subjects the measures to a test of strict necessity.
And – and! – priority should be given to ‘such measures as will least disturb the functioning’ of the protocol.
Paragraph 2 of the article then provides for similar tests for any ‘balancing’ measures of the other party.
These are all onerous substantive tests – and each one must be met for a safeguard measure to be adopted.
And these are just the substantive tests – for Annex 7 to the protocol also provides for the procedure that also has to be followed.
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Annex 7 contains six ‘points’:
You will see point 1 provides a duty of notification at the stage the safeguard measure is being considered.
Point 2 then provides that the next stage is consultations.
Point 3 then imposes a general one month delay, unless the consultations have ended quickly or there are ‘exceptional circumstances’ and the measures are ‘strictly necessary’.
Point 5 then provides that, in addition to the requirement that the safeguard measures not endure longer than necessary, there is a three month review period.
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All of these substantive and procedural provisions are consistent with the measures being of the nature as described on the tin: ‘safeguard measures’.
The measures are to be protective – and what is to be protected is the operation of the protocol and the shared understandings on which the protocol rests.
This means any attempt to use the safeguard measures to, say, alter the operation of the protocol, or to disturb the shared understandings on which the protocol rests, is outside the purpose of the safeguard measures.
In simple terms: that is not what the safeguard measures are safeguarding.
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Of course, politicians being politicians, there will be a temptation to use the Article 16 safeguard measures for other purposes – as leverage in trade discussions, or as retaliatory weapons, or as an attempt to re-write or even discard the protocol.
But even if the intention is to misuse the safeguard measures, the measures are – at least in theory – subject always to the substantive requirements of Article 16 and the procedural requirements of Annex 7.
Of course: all legal instruments are only ever as powerful as the human will to enforce their terms.
For Quis custodiet ipsos custodes? – the eternal question of who watches the watchmen – applies here, as elsewhere.
What – or who – shall safeguard the safeguards?
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The first version of my Prospect post was a sentence-by-sentence ‘fisking’ of the Telegraph article – until I realised that such an approach gave equal space and prominence to each error and unsubstantiated assertion.
Such an approach would be a problem in this instance because there was one flaw so fundamental that it warranted addressing in and by itself.
The fundamental mistake was a refusal to accept that the Good Friday Agreement transformed the constitutional arrangements of the United Kingdom.
Indeed, as I set out in that piece and have said before: in practical terms, the Good Friday Agreement is now the most important single document in the constitution of the United Kingdom.
It is certainly far more significant than the old constitutional fogey favourites such as Magna Carta and the Bill of Rights.
Even before Brexit, the Good Friday Agreement’s express requirement that the European Convention on Human Rights must be capable of being directly enforceable in the courts of Northern Ireland severely limited the attempts of Tory politicians to repeal the Human Rights Act 1998.
And with Brexit, the Good Friday Agreement limited what forms of Brexit were available to the United Kingdom and the European Union.
Other than a ‘hard border’ requiring impediments on trade and commerce between the north and the south on the island of Ireland, there were only two possibilities.
One was that the whole of the United Kingdom remained (excuse the pun) within the European Union single market and customs union to the extent it affected any Northern Irish matter – and this was the approach favoured by former prime minister Theresa May.
Or the alignment was only between the north and south parts of the island of Ireland, thereby meaning the friction of customs and regulatory checks was between the island of Great Britain and Northern Ireland – and this was the approach favoured by prime minster Boris Johnson and for which he won a general election mandate.
There was no other way the problem could have been addressed.
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But stepping back from this problem and its practical solution, it is difficult to think of any other single legal instrument that has shaped public policy in such an emphatic way.
And this is rare in the politics of the United Kingdom.
This is because the doctrine of parliamentary supremacy means that usually a government in Westminster with an overall majority will get its way.
The notion is odd that anyone can point to a legal document and say ‘no, Westminster government, you cannot just do as you wish because of this legal instrument’.
But this is what has happened.
Faced with this unusual constitutional phenomenon, there are two approaches.
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The first approach, adopted by Bogdanor in the Telegraph article is to try to force the constitution into the box it was in before the Good Friday Agreement.
That is to take the pre-1999 constitutional arrangements of the United Kingdom as the standard from which things have since deviated, and to cure such deviations by reasserting a classic model.
Here the very final sentence of the Telegraph piece is the tell: “Today’s argument is about the cohesion of the kingdom”.
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The second approach is to try to see how the constitution has changed without prioritising one moment of the constitution’s development over the other.
The Good Friday Agreement is not about ‘the cohesion of the kingdom’.
The Good Friday Agreement is the recognition that in respect of Northern Ireland there is a contested polity.
The agreement then regulates that contested polity by positing the absolute standard of consent.
The United Kingdom, to invoke a phrase, has no selfish or strategic interest in Northern Ireland remaining part of the union, ‘cohesively’ or otherwise.
The agreement provides that any political question in respect of the position of Northern Ireland has to be approached not only from the perspective of the United Kingdom but also of Ireland.
The agreement also provides for an all-island and cross-border approach where possible, the granting of citizenship rights, and for the removal of visible infrastructure on the border.
To demand that the United Kingdom to again be ‘cohesive’ is to miss the point of the Good Friday Agreement.
The Good Friday Agreement is the (realistic and mature) recognition that in respect of Northern Ireland the ‘kingdom’ is no longer ‘cohesive’ but is contested.
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The twin perils of constitutionalism are fogeyism and utopianism.
Fogeyism is the view that previous constitutional arrangements (either real or imagined) are inherently meritorious and are prescriptive and binding – and that any departure from these previous arrangements is unsound and should be resisted.
Utopianism is the view that the only constitutional reforms worth contemplating are to achieve certain ideals: A written constitution! Abolition of the monarchy! Abolition of the House of Lords!
Perhaps it is because we do not have a codified constitution that constitutional discourse in the United Kingdom – or in England, to be more exact – is so impoverished.
Both the fogeys and the utopians prioritise a normative approach to constitutionalism – preoccupied with what they aver the constitution should be, rather than what it actually is.
What both miss is a positive approach – for, in descriptive terms, all a constitution is is the answer to the question: how is this polity constituted?
And the descriptive answer to that question will change from time to time, sometimes in accordance with your values and sometimes in breach of them.
The constitution of the United Kingdom – that is, the descriptive answer to the question of how the United Kingdom is currently constituted – is just there, and it will always be there is some form as long as the United Kingdom exists.
And the constitution does not care for your nostalgia – or your utopianism.
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POSTSCRIPT – 4pm same day
Bogdanor has now responded to my response here – nothing in each changes anything, and I stand by my position that his Telegraph article fundamentally misuunderstands the constitutional significance of the Good Friiday Agreement.
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One delight of the internet age is that you are more likely to see copies of original political correspondence.
Before the late 1990s you could have a serious interest in politics and public affairs and never see a copy of an official letter on headed paper.
Now, though usually when it suits a politician or official involved, you will see formal correspondence as images attached to tweets or embedded in news articles for you to scroll and look at for yourself.
On the face of it, this is a boon for transparency: you get to see what these letters say for yourself, rather than relying on the spin of ‘a friend of the minister’ or the rushed summary of a busy reporter.
But this is somewhat illusory, for three reasons.
First, as mentioned, one almost always only gets to see what it suits somebody with power for you to see.
Second, some of the politicians most adept at the game of letter writing for publication – such as Michael Gove at the cabinet office – are in charge of government departments with miserable records in respect of freedom of information.
And third, the letters are invariably political rather than administrative devices, written with the audience of supporters and media in mind, rather than to inform the recipient.
So, notwithstanding the grand headings and formal paraphernalia, such letters should be presumed to be mere propaganda and gestures, unless a more serious nature can be shown.
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But.
Sometimes such letters can be unintentionally revealing.
And two such telling letters entered the public domain yesterday.
The first is from Gove and it is in respect of article 16 of the Irish protocol.
As with any Gove letter the first task is to strip off the all the performative politeness, as one would do with the needless extra wrapping of something that may be useful underneath.
But what I saw as notable about this letter was not the supposed main subject of the botched invocation of article 16 by the European Union – on which the United Kingdom has a fair point, though here it is being shamelessly exploited – but a comment made by Gove in passing.
‘We were not consulted on this Regulation either.’
There was no formal need for the European Union to have consulted the United Kingdom on this new regulation.
The previous version of the regulation – which had cited article 16 – did mean that the United Kingdom should have at least been notified in advance.
But this was not the case with the replacement regulation.
The revised regulation was entirely a matter for the European Union.
And the reason why it was entirely a matter for the European Union is, well, because the United Kingdom has departed from the European Union.
Not being part of the formal decision-making, policy-making and law-making of the European Union is what Brexit means.
Of course, Brexit also means many different other things to different people.
But the one thing which Brexit has to mean is that the United Kingdom is no longer part of those institutions of the European Union that make decisions, or formulate and apply policy, or adopt and implement laws.
This is the necessary implication of the United Kingdom ‘taking back control’.
What did Gove and other Brexit-supporting politicians think Brexit meant?
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Another letter from another minister was from George Eustace.
New: Here is the letter George Eustice sent to the European Commission’s Stella Kyriakides this morning about UK shellfish exports to the EU, first reported by PoliticsHome on Friday https://t.co/JzuVrjZ7mtpic.twitter.com/iZbIyuHe1S
Here the United Kingdom government is ‘surprised’ that the European Union has ‘changed its position’.
One fears that the United Kingdom will have to get used to be being ‘surprised’.
(Though any minister or official who is genuinely ‘surprised’ by what a counterparty does is not doing their job properly – as the awareness of and planning for possible contingencies is the basis of any sound public policy.)
Again, as with Gove’s letter, the United Kingdom government does not appear to realise that the United Kingdom is now merely a ‘third country’ for the purposes of European Union decision-making, policy-making and law-making.
Unless the European Union has agreed otherwise in the withdrawal or the trade and cooperation agreements, the interests of the United Kingdom has no more purchase on the conduct of the European Union than any other non-member of the European Union.
That is what Brexit means.
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There will be, no doubt, many more complaints from United Kingdom ministers – and from their political and media supporters – about the European Union making decisions, formulating and applying policy, and adopting and implementing laws, that are not to the advantage of the United Kingdom.
Supporters of Brexit tended to emphasise the positive-sounding ‘taking back’ of ‘control’ – but the immediate and necessary consequence of Brexit is instead the formal exclusion of the United Kingdom from general European Union decision-making, policy-making, and law-making.
And so, just as ministers complaining about adverse judicial decisions is the sound of a working constitution, the noises of ministers unhappy about what the European Union does and does not do is the sound of Brexit.
The sound of a country miaowing at the door wondering if it can be let back in.
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The front cover of the Observer this morning provides some indication of what the United Kingdom is doing to itself in respect of its botched endeavour of Brexit.
As Michael Gove himself could well put it: this country appears to have had enough of exports.
Elsewhere are news reports of the realisation of Northern Irish unionists that the manner of this Brexit means that there is now a trade barrier down the Irish Sea.
Even the fishermen and fisherwomen, in whose names the very last stand of this government’s Brexit negotiation strategy was made, are unhappy.
Day by day, news report by news report, the true nature of Brexit is becoming apparent.
There will be deflections and misdirections from those who supported and urged through this government’s approach to Brexit.
And, to the annoyance and frustration of those who opposed either Brexit in principle or this government’s Brexit policy in particular, these deflections and misdirections will in good part stick.
There will be no grand ‘oh gosh’ moment when all those responsible for this folly will admit to it having been a folly.
But.
This does not mean that those who are watching this folly unfold should be silent.
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For the question that needs to keep on being asked – whether one is against Brexit in principle or this government’s Brexit policy in particular – is simple:
How is any of this worthwhile?
Or alternatively:
What is the point of Brexit?
This is not a complaint from principle but from practice – regardless of one’s view of membership of the European Union, those responsible for the United Kingdom’s post-Brexit policy are still required to justify what they are doing.
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The answer from Brexit supporters to the question of why any of this is worthwhile seems to be one word: ‘sovereignty’.
All these disruptions and all these reversals are supposed to be worth it, because of ‘sovereignty’.
That is why the United Kingdom was able to decide to leave the European Union, and that is why parliament was able to repeal the European Communities Act 1972.
Sovereignty was never lost.
And to the extent that the United Kingdom was bound by international rules and decisions, this was (and is) no different in principle to the obligations that the United Kingdom has under NATO, or the World Trade Organisation, or the United Nations.
Though curiously, many of those in favour of Brexit are at ease with our obligations in respect of those international organisations, and even boast of trading under ‘WTO rules’ or of the United Kingdom’s permanent membership of the UN security council.
One could even say that Brexit is nothing actually to do with ‘sovereignty’ (with or without scare quotes) and more to do with hostility to the ‘E’ word, Europe.
What Brexit certainly has little to do with in practice is the supremacy of parliament – indeed under the cloak of Brexit, the United Kingdom government is seeking to legislate as much as possible by executive action.
Powers are being taken away by Whitehall from Westminster rather than from Brussels.
Even on the one topic on which the current government has struck lucky – and that was more by chance than design – it was possible under European Union law for the United Kingdom to procure the AstraZeneca vaccine on its own terms.
And, indeed at the time, the United Kingdom was still subject to European Union law under the transition arrangements.
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No assertions – however loud – about Brexit in practice being justified by ‘sovereignty’ in principle add up with a moment’s thought.
Not one incident of Brexit so far has shown any value of Brexit as an exercise in regaining ‘sovereignty’.
And this is not so much because Brexiters are wrong to prioritise sovereignty above everything else – but because none of this is really about sovereignty in the first place.
And so the question needs to keep on being asked as to why any of this is worthwhile.
Because it is only by pressing this question that we can ascertain the real reasons for certain botched policies and decisions – and then once the real reasons are ascertained then something useful can be done to mitigate the disruption and damage.
For like some character in an ancient myth or a folklore tale, the United Kingdom has chosen to bring destruction upon itself in supposed pursuit of a thing it had already.
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You will no doubt have an opinion on Boris Johnson, the current prime minister of the United Kingdom.
For my part, the best and most insightful depictions of Johnson as a politician are this piece by Marina Hyde and this by Rafael Behr.
This post, however, will look at the prime minister not just as politician but also through the lens of constitutional law and practice – and, in particular, will examine one statement he made yesterday.
Boris Johnson has vowed to "do everything we need to do" – including an attempt to override post-Brexit arrangements with the EU – in order to "ensure there is no barrier down the Irish Sea" https://t.co/EQaAqFotgu
Everyone who cares knows that Johnson will not do – and has not done – ‘everything’ to avoid a barrier down the Irish Sea.
The fact that this statement is untrue is by itself neither here nor there: more than most politicians, Johnson knowingly says false things.
But for this blog, what is interesting about this lie is that its falsity engages four distinct examples of prime ministerial power.
For Johnson did everything as a prime minister for there to be a barrier down the Irish Sea.
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Within a parliamentary system such as the United Kingdom, and with the constitutional theory that executive power flows from the crown, there are limits to what any prime minister can and cannot do.
But the Irish barrier question shows the ways in which a prime minister can exercise power.
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First, a prime minister can change and set government policy.
And here Johnson broke with the policy of his predecessor on the (once infamous) ‘backstop’ in the withdrawal agreement.
Johnson, of course, did this for cynical reasons of political convenience – but it is a decision that only a prime minister could have made.
And Johnson did.
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Second, a prime minister can enter into international agreements.
In constitutional theory, this is the prime minster using the royal prerogative to enter into those international agreements.
So having reversed the policy of his predecessor, he proceeded to agree the withdrawal agreement providing for a trade barrier down the Irish Sea.
And again, this was something he could only have done as prime minister.
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Third, a prime minister – as leader of the party that wins a general election – can win a mandate for their policies.
Currently, calling a general election is outside the powers of a prime minister, by reason of the Fixed-term Parliaments Act.
But when there is a general election, and that election is won, the prime minister (and the winning party) then enjoys a mandate for their manifesto commitments.
And this mandate is constitutionally significant – for example: any policy with such a mandate cannot be blocked or delayed by the house of lords.
The (then) ‘oven-ready’ deal was mandated by the 2019 general election.
So, again, a mandate was something Johnson achieved as a prime minister (and which his predecessor failed to do with the 2017 general election).
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And fourth, a prime minister is ultimately responsible for the government’s programme of legislation.
So: having reversed policy, entered into an agreement with the European Union giving effect to that new policy, and having won a mandate for the policy in a general election…
…the prime minister now ensured that the policy was implemented into domestic law with an act of parliament.
(Legislation that, of course, was pushed through with minimal scrutiny using the government’s newly obtained overall majority so as to ‘Get Brexit Done’).
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That there is now a trade barrier in the Irish Sea is a perfect illustration of the various powers of a prime minister under our constitutional arrangements.
The trade barrier in the Irish Sea was Boris Johnson’s policy (which he reversed from his predecessor), which he agreed with the European Union and for which won a mandate in a general election, and that he then ensured was enacted into domestic law.
There was nothing more Johnson as prime minister could have done for there to be this trade barrier in the Irish Sea.
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One response to the news that former chancellor Philip Hammond has given a candid and critical interview about the Brexit policy (or lack of policy) of the Theresa May administration is to sneer and jeer, announce that he should have resigned rather than be party to it, and to ‘like” and RT some tweet saying so.
And then to not give it a further thought.
Another, more worthwhile reaction is to look out the interview, and to read and consider it carefully.
And in doing so, you should compare what Hammond says now with your recollection of what Brexit seemed like at the time, from the outside.
What emerges is a picture that many of us onlookers – conscious of the issues at stake but unimpressed by the government’s shallow public messaging – suspected was true all along.
But below are some examples which, at least for me and my commentary, substantiated what some of us believed to be the case at the time – including about the casual nature of the huge decision to leave the single market and the customs union.
On the creation of the pop-up government departments, the Department for Exiting the European Union and the Department for International Trade, Hammond says:
‘Creating a new Government department, frankly, is a pretty cost-free signalling mechanism for an incoming Prime Minister. So, the Department for Exiting the European Union – a ludicrous notion, absolutely ludicrous; a rookie civil service trainee could tell you that that was a stupid idea – and the Department for International Trade, were both gestures.
‘They were ways of bringing in clear, committed Brexiteers to the Government, and plonking them in a place where they could assert their views, rally their troops, and, she hoped, provide a focal point for the hard-line Brexiteers in the parliamentary party. As well as finding out the hard way how difficult this was all going to be in practice.’
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On the botched re-negotiation that preceded the referendum (which was so limited because it misunderstood what the European Union could offer without a treaty change):
‘We all interpreted German pragmatism as support for a more British view of the future of Europe. That was clearly not correct, so we definitely overestimated the flexibility of the Europeans.’
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And perhaps most significantly, on the run-up to the fateful October 2016 conservative party speech in Birmingham – and its aftermath:
‘I was completely stunned by the speech that she made at the Conservative Party Conference in October 2016. I hadn’t seen the relevant part of it in advance. I’d had no input to the speech. Nick Timothy kept me completely away from it. […]
‘I was completely and utterly horrified by what I felt was almost a coup: a definition of Brexit without any proper Cabinet consultation at all.
‘My assessment of Theresa May’s Prime Ministership, in terms of Brexit, is that she dug a 20-foot-deep hole in October 2016 in making that speech and, from that moment onwards, cupful by cupful of earth at a time, was trying to fill it in a bit so that she wasn’t in such a deep mess. […]
‘It was a disaster on all fronts, a total unmitigated disaster that scarred her Prime Ministership and should have sealed Nick Timothy’s fate, but I think she only realised later how badly that had constrained her ability to deliver any kind of practical Brexit at all.’
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What this interview indicates – if not demonstrates – is how crucial those first few months were after the referendum were to the shape of Brexit, from June to October 2016.
That was when, in my view, the battle for Brexit was won and lost.
Until the conference speech it was possible to conceive of a number of different possible Brexits that could follow the referendum result.
(Or in my (incorrect) view at the time, that it was possible that the thing would just be delayed and delayed, as the sheer magnitude of the task became scarily apparent.)
But after the October speech, the only Brexit which was politically likely would be the absolute version with the United Kingdom leaving the single market and the customs union.
And the only way that such a Brexit could have been stopped, again in my view, would have been if the respective leaders of the labour, liberal democrat and other opposition parties had handled the prospect of a general election differently in late 2019.
In essence: in the whole of the story of Brexit so far, only (a) June to October 2016 and (b) November/December 2019 were the real turning points where Brexit could have turned out substantially different after the referendum.
The interview with Hammond, in particular, reminds us that there were non-Brexiter ‘pragmatists’ as well as (in his word) ‘refuseniks’ in those first few months after the referendum.
And notwithstanding the ‘Brexit means Brexit’ slogan of May in her party leadership bid of that summer, it was still possible to conceive of different outcomes.
The pragmatists could have prevailed.
But.
But something happened – a decision was casually made that will turn out to be as consequential for the United Kingdom as any other immensely important decision in our history.
And that decision was made by a prime minister who, on Hammond’s account, did not understand the import of her decision, and without reference to either cabinet or parliament.
An extraordinary moment, and one which is becoming more extraordinary over time.
*****
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Each post takes time, effort, and opportunity cost.
Suggested donation of any amount as a one-off, or of £4.50 upwards on a monthly profile.
This law and policy blog provides a daily post commenting on and contextualising topical law and policy matters – each post is usually published at about 9.30am UK time – though some special posts are published later.
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Note the word ‘guarantee’.
