Category: International Agreements

Are President Biden’s comments on ‘the Irish Accords’ a life line for the Human Rights Act?

22nd September 2021

Yesterday United States President Biden spoke about his concern about a possible change to what he called ‘the Irish Accords’.

From the context of the question and answer, Biden meant the Good Friday/Belfast Agreement – though the question was framed in terms of the Northern Irish Protocol of the Brexit withdrawal agreement.

The question and answer are here and you should watch and listen for yourself:

You will see in the tweet above that the estimable Sonya Sceats, the chief executive of Freedom from Torture, avers that the exchange is a life line for the Human Rights Act 1998.

Is she right?

And what is the connection between that exchange and the Human Rights Act 1998?

Here we need to see what the Good Friday/Belfast Agreement says.

In respect of the European Convention on Human Rights (ECHR), the agreement says the following:

‘There will be safeguards to ensure that all sections of the community can participate and work together successfully in the operation of these institutions and that all sections of the community are protected, including […] the European Convention on Human Rights (ECHR) and any Bill of Rights for Northern Ireland supplementing it, which neither the Assembly nor public bodies can infringe, together with a Human Rights Commission [and] arrangements to provide that key decisions and legislation are proofed to ensure that they do not infringe the ECHR and any Bill of Rights for Northern Ireland’

and

‘The British Government will complete incorporation into Northern Ireland law of the European Convention on Human Rights (ECHR), with direct access to the courts, and remedies for breach of the Convention, including power for the courts to overrule Assembly legislation on grounds of inconsistency’.

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These passages are explicit: the ECHR is a ‘safeguard’ and the ECHR has to be enforceable in the courts of Northern Ireland.

The agreement does not expressly mention the Human Rights Act 1998 – not least because that legislation had not yet been passed at the time of the agreement.

But one of the things that the act does in respect of Northern Ireland – as well as for the rest of the United Kingdom – is to make the ECHR enforceable directly in the courts.

This is instead of requiring a party seeking to rely on the ECHR to petition the European Court of Human Rights in Strasbourg, as was the position before the act took effect.

Of course: you do not – strictly – need the Human Rights Act 1998 to be in place to fulfil the express requirements of the Good Friday/Belfast Agreement, as long as the ECHR remains enforceable locally in Northern Ireland.

But if the Act were to be repealed – which is a long-term goal of the new lord chancellor and justice secretary Dominic Raab – then there would need to be replacement legislation in place the very day the repeal took effect for ECHR rights to remain directly enforceable in the courts of Northern Ireland.

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So does this mean the Human Rights Act 1998 is safe?

I am not so sure.

I averred on this blog when Raab was appointed (and I am sorry to quote myself):

‘And one would not be surprised that one stipulation made by Raab in accepting the position as lord chancellor is that he get another crack at repealing the human rights act.

‘If so, then the act will probably be repealed – though there will no doubt be a less strikingly (and provocatively) entitled ‘European Convention on Human Rights (Interpretation and Incorporation of Articles) and Related Purposes Act’ in its stead – not least because the Good Friday Agreement provides that the convention has to be enforceable in Northern Ireland.’

Having seen the exchange with Biden, I am now wondering if my (dismal) view is correct.

A wise government of the United Kingdom will be anxious not to give the slightest indication that anything related to the Good Friday/Belfast Agreement was up for any change – and continuing local enforcement of the ECHR is an express provision of that agreement.

A wise government, concerned about its relations with the United States, would thereby not touch the repeal of the Human Rights Act 1998 with a barge pole.

It would just take one credible complaint that the Good Friday/Belfast Agreement was at risk, and there would be an international problem.

Repealing the Human Rights Act 1998 would not be worth these risks – especially as it would have to be replaced immediately with legislation having the identical effect in respect of Northern Ireland.

But we do not have a wise government – we have a silly government.

And given the long-term obsession of the new lord chancellor with repealing the Human Rights Act 1998 – and that this may even be a reason for why he accepted his political demotion – one can see the repeal (and its immediate replacement) still going ahead in symbolic form – even if not in much substance.

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But the politics of symbolism does not just have one direction.

Against Raab’s fixation with the symbolism of repealing the Human Rights Act 1998 is the transatlantic symbolism of doing anything that could remotely affect the Good Friday/Belfast Agreement.

So it may be that Sceats’ view is correct – and the Human Rights Act 1998 is safer than before.

But, on any view, repeal seems an unwise political path to take, given how much politically – and how little legally – is at stake.

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“I’d much rather get a deal that really works for the UK than get a quick deal”

21st September 2021

Just a short post today, to note the irony – or lack of irony – of this statement by the prime minister:

“I’d much rather get a deal that really works for the UK than get a quick deal”

There is, of course, nothing to fault in this utterance – on its own terms.

It is a statement so solidly sensible that, one would think, it is a Good Thing that a prime minister has said it.

But.

This is also a prime minister who rushed through a Brexit deal that he now wants to renege on.

This is also a prime minister who heads a government that seeks to enter quick trade deals by the expedient of dropping demands and agreeing to whatever is offered.

So: the prime minister may have said “I’d much rather get a deal that really works for the UK than get a quick deal” but he is not being sincere.

The context undermines the text.

What he says here (as elsewhere) does not correspond with his or his government’s policy.

His words are instead a rhetorical trick – to explain away failure by a claim to high-mindedness.

All that the prime minister means by “I’d much rather get a deal that really works for the UK than get a quick deal” is that he cannot get a quick deal – or any deal.

Not even for soured grapes.

It sounds statesmanlike and commendable, but is just another excuse from the excuse drawer.

Imagine having a prime minister who expounded such a principle – and actually meant it – and that the principle expounded in turn corresponded to policy?

That would be quite a thing, wouldn’t it?

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What is this “Article 16” that the United Kingdom is threatening to trigger?

14th September 2021

The Brexit minister David Frost has said that he is considering triggering article 16 in respect of the ongoing discussions between the United Kingdom and the European Union.

 

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This sounds all very portentous.

But what does it actually mean?

What is article 16?

The blogpost below is based on an extract from an earlier longer explainer posted on this blog back in January 2021 (when the European Commission clumsily and perhaps inadvertently seemed to trigger article 16 and then promptly untriggered it).

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Let’s begin with what is an ‘article’.

One of the blessings of Brexit is dealing with ‘articles’ of international legal instruments – most famously article 50 of the treaty on European Union.

The word ‘article’ is somehow grander than the more mundane ‘section’ and the everyday ‘clause’.

Indeed articles tend to be more self-contained as legal provisions – sometimes like micro legal instruments within macro legal instruments like treaties.

And article 16 – together with a dedicated annex – is such a micro legal instrument.

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Article 16 is part of the Northern Irish protocol, which in turn is a protocol to the withdrawal agreement.

Instruments within instruments within instruments.

Article 16 provides in its entirety (and you should read every word, as they will matter): In essence: the ‘if [x] then [y]’ here is ‘if [there are certain difficulties in the application of the Northern Irish protocol] then [appropriate safeguard measures can be taken]’.

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The article is entitled ‘Safeguards’ – but straight away you will see that the provision is itself subject to its own safeguards – and this is important because, as you can see, what is or can be a ‘safeguard measure’ is not defined.

First.

In paragraph 1, the trigger for the safeguards has to be a serious situation that is likely to persist.

Second.

It then provides that any safeguards will be ‘restricted’ to what is ‘strictly necessary’ for the purpose of remedying that particular serious situation.

Third.

And ‘priority’ shall be given to what measures that cause the least disturbance.

One, two, three.

So: triggering article 16 does not mean anything goes.

Anything Frost proposes will have to meet these three substantive tests.

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And there is more.

In paragraph 2, any imbalances caused by the uses of the safeguards can be addressed with counter measures: so the article is not a unilateral tool.

If the United Kingdom takes measures under article 16 then the European Union can take countermeasures too.

Paragraph 3 then states that a prescribed process has also to be followed, as set out in an annex.

Strictly speaking: triggering article 16 does not trigger the right to take safeguard measures, but triggers a process that may in turn lead to such measures.

The annex supplements the substantive conditions on the use of Article 16 safeguards with procedural protections (and, again, this provision should be read in full): In essence: notification, talking shop, delay for a month, adoption of measures, further notification, regular consultations on measures, reviews of the measures.

Even in the event of ‘exceptional circumstances’ under point 3 of this annex, there is still a procedure to be followed.

Safeguards within safeguards within safeguards, and so on.

Article 16 ain’t no weapon – it is a remedial tool.

It really is not something to ‘threaten’.

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In summary: invoking article 16 is not to be done casually or by mere oversight.

There are many substantive and procedural conditions to be fulfilled before it can be invoked.

And unless those conditions are met, then article 16 measures are not available.

Even when all the conditions are met, the scheme of the article and the annex is that there would be a collaborative review-and-consultation to the use of the measures.

All this is – or should be – obvious from the title of the article: ‘Safeguards’.

And not Reprisals.

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It is easy to get trade deals – if you accept what you are offered, and drop what you want

8th September 2021

I was once a central government lawyer for two-and-a-half years, dealing with public procurement, freedom of information and general commercial matters.

And one of the tasks I had was to support the United Kingdom (and thereby European Union) negotiators on the revision to the WTO agreement on public procurement.

This was exciting: international trade law!

How wrong I was.

In the two-and-a-half years I assisted on the the revision to the WTO agreement on public procurement, I do not think the negotiation moved forward substantially one jot.

(This was not my fault.)

In the words of the WTO website:

“Not long after the implementation of the GPA 1994, the GPA parties initiated the renegotiation of the Agreement according to Article XXIV:9 of the 1994 Agreement. The negotiation was concluded in December 2011 and the outcome of the negotiations was formally adopted in March 2012.”

So: 1994 to 2012.

Eighteen years – to revise an agreement already in existence and the revision of which most parties to the agreement broadly were in agreement with.

Eighteen years.

My two-and-a-half years was in the middle of that period, and that period were not much more than a splash in a river.

Negotiators came and went for all parties, and one suspects there was not anyone engaged with the end of the agreement who had been concerned with it from the beginning.

The one thing I learned was that international trade and commercial agreements can be slow: very slow.

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But international trade and commercial agreements can also be quick: very quick.

One way that can be quick is if they are rollover agreements, a copy-and-paste of what was in place before and which all the parties are happy with.

Another way is to just accept what is on offer and to drop any demand which will not be met.

Such capitulations can be done very quickly indeed.

And so here is today’s news:

Of course: a trade agreement with Australia sounds very glamorous.

The sort of news that would make certain people gladdened just because of the anglophone, commonwealth connotation.

But a new trade agreement entered into at speed, other than a rollover, will tend to be to the disadvantage of one party and not the other.

Any trade deal that is worthwhile for both or all sides will not be done at speed.

We were once told that ‘no deal’ was better than a ‘bad deal’ by those who now clap and cheer at any deal.

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David Frost’s crucial admission: ‘The difficulties come from the way the Protocol is constructed, not just the way it is being implemented.’

4th September 2021

Here is a speech from David Frost, the minister responsible for what follows from Brexit.

And here is a passage from that speech:

‘The difficulties come from the way the Protocol is constructed, not just the way it is being implemented.’

This sentence is not only key, it is crucial.

Of course, it is not enough for those who are sceptical of (or hostile to) the government’s Brexit policy to jeer that ‘you signed it’.

The onus is on anyone interested in the matter to be as constructive as possible – even if that is to resolve the mistakes of others.

But.

But but.

But but but.

It has to be said that this protocol was not only signed by this government, it was negotiated by this government.

The protocol is within an agreement for which this government campaigned for and obtained a mandate.

The protocol flows even from a change of policy made by this government against the ‘backstop’ policy of the previous prime minister.

And the person for the United Kingdom who was primarily responsible for negotiating and thereby the content of the protocol?

David Frost.

The problem we have now as a nation is that International agreements – like other legal agreements – cannot be set aside just because of a ‘bad bargain’.

Let the buyer beware, says the maxim.

Else there will be buyer’s remorse.

If a party to a negotiated agreement does not want to comply with a certain provision, then that party should not sign that contract.

For once it is executed, it is binding, for that is the intention of legal agreements.

We all know the rushed circumstances of how the United Kingdom signed the agreement.

And that time pressure was entirely self-inflicted – by the United Kingdom government.

It was as preposterous a situation then as it seems now.

But supporters of Brexit clapped and cheered at the time, and hailed ‘Brexit getting done’.

And now the government is stuck with what it signed.

Yes: one should be constructive if one can be as a critic of the government’s predicament.

But ultimately the government has to brace itself that it will have to comply with what it freely agreed to.

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Trident and Scottish independence

2nd September 2021

Imagine Whitehall obsessing about somehow salvaging a post-imperial policy delusion costing billions – which we cannot afford and probably serves no modern purpose.

But enough about Brexit.

This is a post about Trident.

In the event of an independent Scotland, what would happen with Trident?

(And for those who think Scottish independence ‘would never happen’, remember other things that would never happen, until they did – like Brexit.)

The Financial Times has published some information on what the current United Kingdom government sees as the options.

https://twitter.com/SebastianEPayne/status/1433151630157942785

https://twitter.com/SebastianEPayne/status/1433153845757104135

https://twitter.com/SebastianEPayne/status/1433154687482703873

https://twitter.com/SebastianEPayne/status/1433155450850136065

https://twitter.com/SebastianEPayne/status/1433163642665684994

 

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Dramatic stuff.

But from a constitutional perspective – rather than a defence policy perspective – the notion of the rump British state having some sort of ‘pocket’ in an independent country is a curious one.

Of course there are examples such as the Irish ports mentioned in the thread – or the two bases in Cyprus.

Such naval and related arrangements are not novel.

But.

There seems a difference in principle as well as scale in the notion that a base for nuclear warfare should in another independent country, where that country will be assuming the risk of being targeted by nuclear weapons in return.

That would be quite a significant thing to have within your polity over which you would not have any direct political control.

And given the propensity of post-Brexit politicians to overestimate their position on the world stage, one would not really want to take on the risk of the (literal and metaphorical) fall-out of nationalistic bombastic posturing.

That said: perhaps leasing the site to the London government during the necessary transition period could provide the very financial injection that would make independence more viable than otherwise.

And so it could be a boon for Scottish independence – as well as a predicament.

But on any view: what to do with an unwelcome nuclear warfare base in a newly independent state will raise constitutional and political issues – at least in the short-term.

At least Whitehall is thinking through these issues in advance.

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What the CE/UKCA and the GDPR issues tell us about the pointlessness of Brexit

  28th August 2021

The strongest argument for Brexit, if not the only one, was that it would enable the United Kingdom to have laws and policies regardless of our obligations under the treaties of the European Union.

Many – including you – will probably not think of that as much of an argument – and, indeed, it is not much of an argument.

But at least it is an argument which is internally coherent: as a member of the European Union the United Kingdom was subject to its European Union treaty obligations, and as a non-member, we are not.

To get from [x] to [y] could only be done by the means of Brexit.

The other arguments do not even make sense as a matter of internal logic.

For example, the argument from sovereignty did not make sense: the United Kingdom had sovereignty all along, else it would not have been able to make an Article 50 notification and repeal the European Communities Act.

And the argument of practicality also does not make sense, for even though we are no longer subject to its European Union treaty obligations, it appears that there is not any advantage to having this new freedom.

For example: we are now free of the CE regulatory regime – but our businesses need for us to continue.

And, as this blog recently averred, there is no good reason for the United Kingdom to diverge from the European Union data protection regimes – and many good reasons for us not to do so.

So the United Kingdom did not need to do Brexit to regain sovereignty (as we already had it and never lost it) nor did United Kingdom need to do Brexit to make any substantial policy changes, as we do not seem to need to change policies.

As is often said, the post-Brexit United Kingdom really is the dog that caught the bus.

Yes: the United Kingdom can now have laws and policies regardless of obligations under the treaties of the European Union.

But there does not seem much point.

What a pointless thing to have done.

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The ‘benefit of hindsight’ is becoming the modern ‘benefit of clergy’ – politics, accountability and rhetoric

25th August 2021

There are various means by which those with political power can evade accountability for what they do and do not do.

(By ‘accountability’ I mean those with political power being obliged to give an account for what they have done and not done.)

One means is by minimising or removing any formal checks and balances within our constitutional arrangements – answering to parliament, the independence of our courts, the effectiveness of judicial review, an impartial civil service, public service broadcasting and so on.

A second means is to disregard informal and non-legal self-restraints within the constitution – to ignore the ‘good chaps’ theory of the constitution, where so much depends on the willing observance of unenforceable conventions and rules of procedure.

A third means is to ensure that any special method of accountability – such as a public inquiry – is as delayed or limited as possible, if it takes place at all – and if it does take place, the ‘lessons learned’ are for another generation of politicians.

And a fourth is by means of rhetoric.

In particular, the increasingly regular occurrence of ministers and political appointees invoking ‘hindsight’.

In the commons, the prime minister responds to explanations of how he could have dealt with foreseeable things in a timely manner – regarding Brexit and other things – with the jibe ‘Captain Hindsight’.

The politically appointed head of the national health service test and trace programme told a parliamentary committee, with a straight face:

‘With the benefit of hindsight the balance between the supply and the demand forecast wasn’t right. Clearly that is true.’

And, now with Afghanistan, we have the foreign secretary explaining why he carried on taking a holiday during the fall of Kabul:

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Brexit.

COVID-19.

Afghanistan.

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In most, if not all, of these situations the potential problems were bleedingly obvious in real-time, at the time.

What was required was not hindsight but foresight.

But we now have a group of politicians who have realised they can benefit from a special form of political herd immunity by deriding criticism as ‘hindsight’.

And this, in turn, provides them with a licence to not properly think things through at the time and to take decisions (or not take decisions) for reasons of perceived political expediency.

For they know, in the back of their minds, that when things go wrong all they have to say to critics:

‘…with the benefit of hindsight’.

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A healthy polity does not greatly depend on formal constitutional instruments – and legalistic words in a document can only make so much difference.

A healthy polity instead depends on issues that can be characterised as ‘cultural’ as well as constitutional – the general sense of what those with political power can get away with.

And, as the very stuff of a political culture is largely words, symbols and communication, when that culture is debased then it becomes significantly more difficult to hold ministers to account.

The ‘benefit of hindsight’ is becoming the modern ‘benefit of clergy’.

If this trend continues, then our polity will be the worse for for it.

And this will not only be obvious with…

…well, hindsight.

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The thin threads of power – politics and policy in an age of impotence

17th August 2021

When I was at school in the 1980s, the well-meaning progressive teachers showed us the film Threads.

The purpose, no doubt, was to make us pupils think critically about the cold war and the (then) nuclear arms race.

The primary impact it had on me was, however, different – and this was because of how the film portrayed the telephones in the bunker.

The film gave me a life-long fascination about the nature of practical political authority and control.

Here on YouTube some helpful person has put together the bunker scenes from the film:

If you watch these scenes with special regard to the telephones, you will see the telephones going from an active means of communication, to an inactive means, to being discarded, and then to finally damaged beyond repair.

And this matches the collapsing political authority of those in the bunker.

To begin with there are other people at the end of the telephone, and then there is nobody, and then ultimately nobody cares – or knows.

The political authority of those in the bunker, like the communications, is cut off.

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The lesson I learned from this as a pupil was it was not enough to have people who want to be in control and to believe themselves to be in control – there also had to be infrastructure, and for there to be people to accept that control.

Without such infrastructure and deference, those ‘in control’ are akin to the motorist wriggling a gear stick or pressing the brakes when both have been disconnected.

Those ‘in control’ may as well be playing with some grand political simulator.

And so I became interested in processes and transmissions and logistics and policies and rules and laws, and less interested in personalities and partisanship.

To answer the question: just what happens when the telephone rings out but it is not answered?

I suspect that this not the intention of the film makers, or the teachers.

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I mention this because of the impotence many in the West now feel about the fall of Kabul.

There is a general sense that something should have been done.

Here is our current foreign secretary:

The phrase “no one saw this coming” could be the motto of the United Kingdom government since at least 2016.

And here is Susie Dent, the subtle genius who no doubt will be regarded by future historians as the best political commentator of our age:

All true: but even if we had the foresight, what could have been done?

Of course: the execution of the final departures could have been better.

But beyond the arrangements for the final exit, it is difficult to see what further control the West could have had.

And part of the problem for the United Kingdom is that not only do we have no control, we also have no meaningful policy for what we could do.

Here, there are some hard truths on the lack of any meaningful United Kingdom policy in this RUSI post:

‘This week’s ignominy may be set instead against some of the blithe statements made just six months ago in the Integrated Review: that the UK will be ‘a problem-solving and burden-sharing nation’; that it already demonstrates a ‘willingness to confront serious challenges and the ability to turn the dial on international issues of consequence’; that the UK will embody ‘a sharper and more dynamic focus in order to adapt to a more competitive and fluid international environment’; and that it will ‘shape the international order of the future’.

‘The UK’s Afghanistan experience demonstrates none of this.

‘Instead, it speaks to a generation of political leaders who have too easily fooled themselves that being Washington’s most reliable military ally constitutes in itself an effective national strategy.

‘Such a relationship may be one element of an effective strategy, but it cannot simply be the strategy.’

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Yesterday this blog looked back to a 2017 Financial Times post where I put the old calls for ‘regime change’ together with other simple notions from the first part of this century, as part of a general politics of easy answers:

Since 2017, with the ongoing experience of Brexit but also with Covid and many other things, we still see the politics of easy answers.

The sense that all that needs to be done when something must be done is for politicians to want it to be done.

The hard and complicated work of policy and (meaningful) strategy is often not even an afterthought.

We have politicians in their modern-day bunkers, thinking that having telephones to hand will be enough for their will to be done.

But political power hangs on, well, threads.

And those threads snap easily, if they exist at all.

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Whatever happened to ‘regime change’?

16th August 2021

Once upon a time geopolitics seemed so much easier.

As Christopher Hitchens commented back in 2001, after 9/11:

‘The Taliban will soon be history. Al-Qaida will take longer. There will be other mutants to fight. But if, as the peaceniks like to moan, more Bin Ladens will spring up to take his place, I can offer this assurance: should that be the case, there are many many more who will also spring up to kill him all over again.’

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I was one of those who nodded-along with Hitchens at the time, but I quickly realised the reality of ‘regime change’ did not correspond to what was said in sterling newspaper columns and comment pieces.

And by the time of the Iraq invasion (with which I did not nod-along) it was plain that no actual thought was going into what happened next in any of these adventures.

Now, twenty years after the invasion of Afghanistan, the west are retreating in circumstances which show that there was never any practical, sustainable plan for ‘regime change’.

Indeed, instead of a changed regime in Afghanistan, we have a regime resumed.

And the full resumption only took a day, after some twenty years of occupation.

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Back in 2017, at the Financial Times, I put the calls for ‘regime change’ together with other simple notions from the first part of this century, as part of a general politics of easy answers:

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I remember as a United Kingdom government lawyer around 2003/4 being asked to help on a commercial procurement matter involving the Coalition Provisional Authority in Iraq.

I did not have much idea what I was doing, though I did my best – and it was soon obvious that nobody at the Coalition Provisional Authority knew what they were doing.

I remember thinking at the time that it is one thing to clap and cheer at ‘regime change’ but for it to happen in reality was quite different.

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This is not to argue absolutely against military interventions – either ‘liberal’ or otherwise.

What it is an argument against, however, is the notion that ‘regime changes’ are easy, or even effective.

Interventions are not political exorcisms, where the demons are expelled forever.

Instead, the notion of ‘regime change’ is a form of magical thinking.

And it always was.

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