Why the first paragraph of the lawsuit brought by Dominion Voting Systems against Rudolph Giuliani is a splendid piece of legal drafting

26th January 2021

You would need a heart of stone not to laugh like a drain at the lawsuit brought by Dominion Voting Systems against Rudolph Giuilani.

The pleading is worth reading for its own sake, and the first paragraph – which, as this post will show, rewards re-reading – is a cracker.

But once one eventually stops laughing, what should one make of it?

Of course, the defendant Rudolph Giuilani is now regarded by many as a figure of political fun, a villain in the Trump pantomime.

But principle is – or should be – blind to the person to whom it applies.

So here is a thought experiment.

Imagine – for the sake of argument and exposition – that there was a corporation that provided voting machines and, unlike the plaintiff in this case, there was a serious and consequential issue as to the efficacy of the equipment.

And imagine that the political or media figure bringing loud attention to this issue was not the defendant in this situation but instead a credible and likeable politician or journalist.

Would you still clap and cheer if that noble figure was faced with a 107-page legal claim for $651,735,000 or some other absurdly precise amount?

Or would you re-tweet furiously about threats by corporates to whistleblowing and freedom of expression?

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So how can the court tell the good cases from the bad?

How can the court strike the right balance?

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This thread from American lawyer Mike Dunford sets out the legal challenges for Dominion Voting Systems:

And as would be the position with a similar case in England and Wales, you will see that the legal issue quickly becomes one of showing malice – and there it is called ‘actual malice’:

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At this point the non-lawyer will ask, understandably: what is malice?

And a lawyer will respond, frustratingly: it all depends.

But here it is interesting to now go back to the first paragraph of the the legal pleading of Dominion Voting System (and this is why it is worth re-reading):

“During a court hearing contesting the results of the 2020 election in Pennsylvania, Rudy Giuliani admitted that the Trump Campaign “doesn’t plead fraud” and that “this is not a fraud case.” Although he was unwilling to make false election fraud claims about Dominion and its voting machines in a court of law because he knew those allegations are false, he and his allies manufactured and disseminated the “Big Lie,” which foreseeably went viral and deceived millions of people into believing that Dominion had stolen their votes and fixed the election. Giuliani reportedly demanded $20,000 per day for that Big Lie. But he also cashed in by hosting a podcast where he exploited election falsehoods to market gold coins, supplements, cigars, and protection from “cyberthieves.” Even after the United States Capitol had been stormed by rioters who had been deceived by Giuliani and his allies, Giuliani shirked responsibility for the consequences of his words and repeated the Big Lie again.”

This is not just racy narrative – if you look carefully you will see that it is a clever attempt to show malice.

Giuliani said a thing he knew he could not say in court; he knew it would go viral; he had a financial incentive; and he was irresponsible in respect of its consequences.

Every sentence – every clause – of that well-crafted first paragraph is serving a purpose in showing that there was ‘actual malice’.

It is a lovely piece of legal drafting – enough to make one want to clap and cheer, regardless of the identity of the defendant.

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Corporations – especially those providing public services or supplying equipment for use in public services – should not have it easy when it comes to making legal threats.

Even when they are threatening pantomime villains.

Public figures, especially those in the worlds of politics and media, should have some protection when they are complaining of such corporations.

Even when those figures are pantomime villains.

The purpose of the law in these situations is to strike a balance – to provide for what both sides would need to show in court.

Here the corporation – rightly – cannot just sue because of damaging false statements, it may also need to show that there was malice.

And the lesson of the first paragraph of the pleading and of the rest of the complaint is that in certain circumstances this can be shown, at least arguably.

What comes of this case cannot be guessed at this time – and most civil claims tend to settle.

But Giuliani has a genuine legal fight on his hands here.

And you would need a heart of stone not to laugh like a drain.

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Why prime ministers and ministers should read the legal texts for which they are responsible – and not leave it to summaries and advisors

16th January 2021

There are news reports that the prime minister has not read the trade and cooperation agreement with the European Union – and nor had the fisheries minister before it was agreed.

And this follows the former Brexit Secretary who once admitted he had not read the thirty-five page Good Friday Agreement – even though that document was of fundamental importance to the shape and outcome of Brexit.

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One reaction to these admissions is to say that it is not actually necessary for ministers to read such legal texts – that ministers are usually not specialist lawyers, that such engagement could lead to misunderstandings, and that it would not be an efficient or sensible use of their limited time.

And that it is perfectly reasonable, and indeed preferable, that ministers rely on the advisers to summarise and explain these legal texts instead.

For such reasons, the argument goes, it is not fair to criticise ministers for not reading legal texts for which they are responsible or, in the case of the Good Friday Agreement, fundamental to their ministerial roles.

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Many of those who hold this view are themselves advisers or others who have briefed and summarised such legal texts for ministers and other lay people.

This blogpost avers that this view is not correct and that, for the following three reasons, any minister should be on top of the legal text for which they are responsible or is relevant to their roles, and that ministers should not rely on advisers and their summaries.

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As a preliminary point, however, there is something that this blogpost is not contending.

A minister should not just be left alone with a legal text and be expected to engage with it as an experienced and specialist lawyer.

Even ministers who happen to be lawyers may not be experienced or specialised in the relevant field.

This post is not suggesting that ministers become their own lawyers.

This post instead is putting forward the view about how ministers should approach legal texts as an active (rather than as a passive) client of their legal advisers.

How – in accordance with the old adage – advisers should advise and how ministers decide.

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The first reason is that any intelligent and diligent lay person (that is, a person who is not a specialised lawyer in a relevant field) can engage with a legal text.

No legal text is so obscure – or sacred – that it requires a solemn priesthood of lawyers to interpret its import to the uncouth.

Although parts of some legal documents can look as impenetrable as a computer screen suddenly full of source code, all legal documents will have basic terms, for example: party [x] shall do [y] and if [y] does not happen, then [z] happens instead.

Legal instruments create rights and obligations, and they provide for consequences of those rights being exercised or of those obligations not being fulfilled, and they provide for allocations of risk of certain things happening or not happening.

This is not mysterious stuff – but the very stuff of relationships and powers and conflicts – indeed, it is the basic stuff of politics itself.

And for a minister, a legal text for which they are responsible will set out in hard form these relationships and powers, and how any conflicts are to be resolved.

A minister should therefore engage with such a text and ask their lawyers and other advisers: What does this provision mean? What is the consequence if [a] happens? What is the consequence if [b] does not happen and so on.

In response, any (genuine) expert will have no difficulty in explaining the answer in plain language – or in admitting that something may be missing.

In my experience, the best lay clients are not the ones who pretend to be lawyers – but the ones who will test their lawyers to explain any instrument or other legal text.

Often the lay client, who will usually be approaching the text in a far more practical, street-wise way than any adviser, will spot many possible imprecisions and omissions.

After all, the lay-client is the one who will have to deal with the consequences of how that instrument works in practice.

And this exercise in active engagement can only be done by direct reference to the legal text – not some summary at one or two stages removed.

Like a decent literature student who knows not to rely on York Notes, and a decent law student who knows not to rely on Nutshells, any intelligent and diligent lay client knows there is no substitute to knowing the primary materials.

And again, this is not the lay person pretending to be a lawyer, but them fulfilling their proper role as a client.

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The second reason is that is that summaries are sometimes not reliable texts, notwithstanding the best intentions and professionalism of the adviser who prepares that summary.

This is the nature of summaries: you are relying on another person to identify and set out all the key issues – and such summarisers are not infallible.

But regardless of fallibility, a summary of any legal instrument does not necessarily deal with all the questions a lay client can have when reviewing the terms of that instrument.

And this is because a legal instrument deals (or may have to deal) with dynamic situations where different parts of the instrument can be engaged at once and interact- and any summary is linear.

For example: a thing could happen which is simultaneously a breach of obligation (a), triggers remedy (b), which is subject to a limitation (c), giving rise to process (d), entitling the party not in breach to options (e), (f) and (g).

Different fairy lights can be flashing all at the same time.

No summary can ever equate to having a practical grasp of how a legal instrument works in foreseeable situations.

And this grasp is perfectly possible for an intelligent and diligent lay client – in dialogue with advisers.

This is not to say summaries are redundant – but that they are inherently limited as a means of conveying a robust understanding of any legal instrument.

(And this assumes the summariser being a professional person with relevant experience the best intentions – advisers with their own biases and interests or lack of experience can make the summaries even less of an adequate substitute.)

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The third reason is political.

The doctrine of ministerial responsibility means that it is the minister – and not the civil servant, government lawyer or other adviser – who is responsible to parliament and to the public for decisions.

This means that parliament and the public look to the minister to be the one who makes decisions.

Many ministerial decisions are necessarily made on the basis of summaries – one or two pages of a recommendation in those famous red boxes.

But when the minister is to bind the United Kingdom in an international agreement, with profound consequences for every citizen and business, that duty cannot be offloaded and outsourced to advisers.

A refusal or unwillingness to engage with the primary materials also can lead a minister to wishful-thinking or even denialism – that such-and-such will not really lead to a trade barrier in the Irish Sea and so on.

Such evasions are far less possible when you see things in their black-and-white typed form, and you have had explained to you what the meaning and consequences are of that black-and-white typed form.

There is also, of course, the natural tendency of people with power to rely on others only then to blame them when things go wrong.

Decisions in respect of the United Kingdom’s obligations are not for advisers and officials to make – ministers have to form their own view, for it is that view for which ministers are responsible.

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A minister – even a prime minister – is just as capable as any intelligent and diligent lay client as engaging directly with a legal instrument, and in forming their own understanding of that instrument.

Summaries and reliance on advisors are not substitutes for knowing your way round the primary materials.

And given the doctrine of ministerial responsibility, and the immense importance of many legal international agreements, ministers have a special responsibility to properly understand what they are signing us up to.

Advisers advise, and ministers decide – but some ministerial decisions require far more than reliance on advisers.

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Benjamin the Donkey from Animal Farm, and the limits of political commentary

New Year’s Eve, 2020

Tomorrow Animal Farm and other works by George Orwell come out of copyright in the United Kingdom.

To mark this, and to do something different on this blog on New Year’s Eve, this is a tribute to – and critique – of Benjamin the donkey as a political commentator.

(And, just for the rest of today, the many quotations in this post are ‘fair dealing with a work for the purpose of criticism or review’ under the Copyright etc Act 1988.)

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Benjamin has qualities which would (or should) make him a great political commentator.

First – and this is key:

Benjamin could read as well as any pig…’

In Animal Farm, the two key textual reveals to the other other animals are because Benjamin can read as well as any pig:

‘”Fools! Fools!” shouted Benjamin, prancing round them and stamping the earth with his small hoofs. “Fools! Do you not see what is written on the side of that van?”‘

And:

‘[Benjamin] read out to her what was written on the wall. There was nothing there now except a single Commandment. It ran:

ALL ANIMALS ARE EQUAL
BUT SOME ANIMALS ARE MORE EQUAL THAN OTHERS’

Benjamin is capable of understanding, and explaining, anything done by those who have sought and obtained political power – it is not for him obscure or forbidden knowledge.

He is not of the political world, but can understand it as well as those who are powerful.

And so he can see and describe what is actually happening:

‘…Benjamin was watching the movements of the men intently. The two with the hammer and the crowbar were drilling a hole near the base of the windmill. Slowly, and with an air almost of amusement, Benjamin nodded his long muzzle.

‘”I thought so,” he said. “Do you not see what they are doing? In another moment they are going to pack blasting powder into that hole.”‘

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Second, Benjamin is impartial in a hyper-partisan world:

‘Old Benjamin, the donkey, seemed quite unchanged since the Rebellion. […] About the Rebellion and its results he would express no opinion. When asked whether he was not happier now that Jones was gone, he would say only “Donkeys live a long time. None of you has ever seen a dead donkey,” and the others had to be content with this cryptic answer.’

And:

‘The animals formed themselves into two factions under the slogan, “Vote for Snowball and the three-day week” and “Vote for Napoleon and the full manger.” Benjamin was the only animal who did not side with either faction. He refused to believe either that food would become more plentiful or that the windmill would save work. Windmill or no windmill, he said, life would go on as it had always gone on–that is, badly.’

And:

‘Only old Benjamin refused to grow enthusiastic about the windmill, though, as usual, he would utter nothing beyond the cryptic remark that donkeys live a long time.’

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Third, Benjamin has a stock of knowledge and historical perspective:

‘Only old Benjamin professed to remember every detail of his long life and to know that things never had been, nor ever could be much better or much worse–hunger, hardship, and disappointment being, so he said, the unalterable law of life.’

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And Benjamin is (for want of a better word) humane and (privately) kind:

‘Nevertheless, without openly admitting it, he was devoted to Boxer; the two of them usually spent their Sundays together in the small paddock beyond the orchard, grazing side by side and never speaking.’

And:

‘…Benjamin urged Boxer to work less hard’.

And:

‘…Benjamin warned [Boxer] to take care of his health’.

And:

‘…Benjamin [laid] down at Boxer’s side, and, without speaking, kept the flies off him with his long tail.’ 

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So: what more could you want in a political commentator?

Benjamin is worldly yet impartial, and he has historical perspective and a stock of knowledge, and he also is (at least privately) kindly.

But Benjamin fails as a commentator.

His impartiality has hardened into quietism, and he leaves everything too late.

Of course, Benjamin does not actively collaborate with those with political power:

‘He did his work in the same slow obstinate way as he had done it in Jones’s time, never shirking and never volunteering for extra work either.’

But he also does nothing when it would have made a difference to stop abuses of power.

For example, the constant re-wordings of the commandments which culminate in the addition of ‘BUT SOME ANIMALS ARE MORE EQUAL THAN OTHERS’ is left to others to read who do not have the donkey’s understanding.

And when Boxer is taken to the glue factory, Benjamin’s late realisation is futile.

His private kindness made no difference to this very public and brutal act of power.

Had Benjamin been engaged from the beginning of the rebellion, the pigs may have got away with less and Boxer would have enjoyed a retirement.

(That is, if Benjamin had not – ahem – disappeared.)

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T. S. Eliot famously turned-down Animal Farm for publication, writing to George Orwell that all the farm really needed were ‘more public-spirited pigs’.

That is, better conduct and more self-restraint by those who achieve and exercise political power – the essence of Toryism.

But left to themselves, those who achieve and exercise political power will tend to abuse that power – and that is why wiser people than Eliot also want checks and balances.

And one check and balance is an independent media.

A media which is worldly, impartial, and has historical perspective and a stock of knowledge, and which also – if not kindly – is certainly not cruel.

But as the example of Benjamin shows, even these wonderful qualities are not enough, if not constantly applied.

What was perhaps needed on the farm was not ‘more public-spirited pigs’ but a more public-spirited donkey.

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Yet – this is a question which Orwell does not really address – the animals would also need to have cared if the donkey had told them what was happening in time.

For the experience of Brexit and Trump indicates that even if Benjamin had been more vigilant about abuses of power, many of the animals may not have cared.

‘The animals crowded round the van. “Good-bye, Boxer!” they chorused, “good-bye!”‘

So commentary may not be enough: there is limited point to explaining about lies and abuses of power if people do not care that they are being lied to and power is being abused.

And that is the fundamental challenge of politics in the age of the promised windmills of Trump and Brexit.

But providing commentary is a public good in itself, even if it is not heeded.

And so this blog will carry on into the new year as the work of a public-spirited donkey.

Happy new year to all my readers and followers.

*****

This law and policy blog provides a daily post commenting on and contextualising topical law and policy matters – each post is published at about 9.30am UK time.

Each post takes time, effort, and opportunity cost.

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The Bill implementing the Trade and Cooperation Agreement is an exercise in the Government taking power from Parliament

30th December 2020

Today Parliament will be expected to pass, in one single day, the legislation implementing the Trade and Cooperation Agreement into domestic law.

This situation is exceptional and unsatisfactory.

The bill is currently only available in draft form, on the government’s own website.

As you can see, this means that ‘DRAFT’ is inscribed on each page with large unfriendly letters.

And we are having to use this version, as (at the time of writing) the European Union (Future Relationship) Bill is not even available parliament’s  ‘Bills before Parliament’ site.

The draft bill is complex and deals with several specific technical issues, such as criminal records, security, non-food product safety, tax and haulage, as well as general implementation provisions.

Each of these specific technical issues would warrant a bill, taking months to go through the normal parliamentary process.

But instead they will be whizzed and banged through in a single day, with no real scrutiny, as the attention of parliamentarians will (understandably) be focused on the general implementation provisions, which are in Part 3 of the draft bill.

And part 3 needs this attention, as it contains some remarkable provisions.

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Clause 29 of the draft bill provides for a broad deeming provision.

(Note a ‘clause’ becomes a ‘section’ when a ‘Bill’ becomes enacted as an ‘Act’.)

The intended effect of this clause is that all the laws of the United Kingdom are to be read in accordance with, or modified to give effect to, the Trade and Cooperation Agreement.

And not just statutes – the definition of ‘domestic law’ covers all law – private law (for example, contracts and torts) as well as public law (for example, legislation on tax or criminal offences).

It is an ingenious provision – a wave of a legal wand to recast all domestic law in whatever form in accordance with the agreement.

But it also an extremely uncertain provision: its consequences on each and every provision of the laws of England and Wales, of Northern Ireland, of Scotland, and on those provisions that cover the whole of the United Kingdom, cannot be known.

And it takes all those legal consequences out of the hands of parliament.

This clause means that whatever is agreed directly between government ministers and Brussels modifies all domestic law automatically, without any parliamentary involvement. 

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And then we come to clause 31.

This provision will empower ministers (or the devolved authorities, where applicable) to make regulations with the same effect as if those regulations were themselves acts of parliament.

In other words: they can amend laws and repeal (or abolish) laws, with only nominal parliamentary involvement.

There are some exceptions (under clause 31(4)), but even with those exceptions, this is an extraordinarily wide power for the executive to legislate at will.

These clauses are called ‘Henry VIII’ clauses and they are as notorious among lawyers as that king is notorious in history.

Again, this means that parliament (and presumably the devolved assemblies, where applicable) will be bypassed, and what is agreed between Whitehall and Brussels will be imposed without any further parliamentary scrutiny.

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There is more.

Buried in paragraph 14(2) of schedule 5 of the draft bill (the legislative equivalent of being positioned in the bottom of a locked filing cabinet stuck in a disused lavatory with a sign on the door saying ‘Beware of the Leopard’) is a provision that means that ministers do not even have to go through the motions of putting regulations through parliament first.

Parliament would then get to vote on the provisions afterwards.

This is similar to the regulations which the government has been routinely using during the pandemic where often there has actually been no genuine urgency, but the government has found it convenient to legislate by decree anyway.

Perhaps there is a case that with the 1st January 2021 deadline approaching for the end of the Brexit transition period, this urgent power to legislate by decree is necessary.

But before such a broad statutory power is granted to the government there should be anxious scrutiny of the legislature.

Not rushed through in a single parliamentary day.

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There are many more aspects of this draft bill which need careful examination before passing into law.

And, of course, this draft bill in turn implements a 1400-page agreement – and this is the only real chance that parliament will get to scrutinise that agreement before it takes effect.

You would not know from this draft bill that the supporters of Brexit campaigned on the basis of the United Kingdom parliament ‘taking back control’.

Nothing in this bill shows that the Westminster parliament has ‘taken back control’ from Brussels.

This draft bill instead shows that Whitehall – that is, ministers and their departments – has taken control of imposing on the United Kingdom what it agrees with Brussels.

And presumably that was not what Brexit was supposed to be about.

*****

This law and policy blog provides a daily post commenting on and contextualising topical law and policy matters – each post is published at about 9.30am UK time.

Each post takes time, effort, and opportunity cost.

If you value the free-to-read and independent legal and policy commentary both at this blog and at my Twitter account please do support through the Paypal box above.

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

Comments are welcome, but they are pre-moderated.

Comments will not be published if irksome.

This agreement is not the end of Brexit, it is a five year political truce

28th December 2020

More is now becoming apparent of the nature of the draft trade and cooperation agreement between the European Union and the United Kingdom.

This post looks at two fundamental issues: structure and duration.

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In regard of structure, let us start with what is expressly stated as the ‘purpose’ of the agreement:

‘This Agreement establishes the basis for a broad relationship between the Parties […]’

The word ‘broad’ is significant, especially when one looks at the following provision.

This provision expressly provides that it is envisaged that there will be ‘other’ agreements that will both ‘supplement’ this agreement but will be subject to this agreement.

The key word here, at the end of the numbered paragraph, is that this agreement is a ‘framework’.

As such it is not, and is not intended to be, a once-and-for-all agreement, setting out all the terms of the post-Brexit relationship between the European Union and the United Kingdom.

This will not surprise many (no doubt they are already scrolling down to type ‘why is this a surprise?’ in the comment box below) but it is significant – and consequential – and needs spelling out.

This is explicitly not an agreement which shows that the United Kingdom has, in one single bound, ‘taken back control’ and become free.

The agreement instead shows, even in its first two substantive provisions, that Brexit will be an ongoing negotiation, maybe one without end.

All this agreement does – expressly and openly – is provide a ‘broad…framework’.

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Once this is understood then other parts of the agreement make sense.

For example, there are numerous specialised trade committees set up for various sectors.

Loads of talking shops.

But some have rightly noted that some sectors do not have specialised trade committees.

The specialised trade committees which have been set up, however, oversee certain parts of the agreement.

So, if a sector is not the subject of other provisions in the agreement, then there will not be a specialised trade committee to oversee that sector.

(This is akin to, say, parliamentary select committees that are set up to mirror government departments.)

The reason, therefore, there is not a financial services specialised trade committee under this agreement is that there are no substantive provisions under this agreement on financial services (yet) for that committee to monitor.

If and when there is a ‘supplementary’ agreement on financial services, for example, there will be a corresponding new specialised trade committee.

That new committees can be formed is expressly provided for in the powers of the partnership council, that can ‘by decision, establish Trade Specialised Committees and Specialised Committees’.

The agreement, therefore, envisages both new supplementary agreements and new specialised committees.

(And these envisaged potential extensions are elsewhere in this agreement.)

In other words, this agreement is intended and designed to be a dynamic arrangement between the parties, where areas of trade and cooperation can change and indeed become closer (or less close) over time.

This means one consequence of Brexit is that the United Kingdom has swapped the dynamic treaties of the European Union which envisages things becoming closer (or sometimes less close) over time for a new ‘broad…framework’ dynamic agreement that also envisages things becoming closer (or sometimes less close) over time.

And this is part of the design, as the examples above show.

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There is more.

Not only is the agreement envisaged and designed to be dynamic over time, it will also be subject to five-yearly reviews.

So slow, incremental changes within five periods will be complemented by possible far more substantive shifts every five years.

This again is part of the design.

Buried on page 402 of the agreement:

“The Parties shall jointly review the implementation of this Agreement and supplementing agreements and any matters related thereto five years after the entry into force of this Agreement and every five years thereafter.”

And once you realise there is this five year cycle, you notice it elsewhere in the agreement.

There are numerous references to ‘2026’ and ‘five years’.

And as John Lichfield has pointed out in this significant and informative thread, 2026 is also a significant date on the fisheries question:

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Five year periods, of course, accord neatly with the five year cycles of the European Union.

The European Commission is appointed for a five year term, for example, and the European Parliament is elected every five years.

Each President of the European Council also tends to serve a five year term.

So this five year cycle of reviews is convenient for (and is no doubt designed to be convenient for) the European Union.

Each Commission, each European Parliament, and each President of the European Council, will have its turn to shape the relationship with the United Kingdom, before handing it onto the next.

The five year cycle also may suit the United Kingdom.

The Fixed-term Parliaments Act provides that each parliament should last five years – though, of course, this statute is set for repeal.

But, in any case, the politics of the United Kingdom generally tends to follow cycles of four to five years.

And if Fixed-term Parliaments Act stays in place, the next general election is in 2024, just in time for the run-up to the next review of the agreement.

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The trade and cooperation agreement is expressly and openly designed to have both small changes within five year cycles and potentially big changes every five years.

As such, this agreement is not the end of Brexit.

The agreement is not (and is not intended to be) a once-and-for-all settlement of the relationship between the European Union and the United Kingdom.

It is instead – deliberately – a dynamic agreement, capable of enabling closer union (or less close union) over time.

The five year cycles accord exactly with the convenience of the terms of the European Union and also roughly match the political cycle of the United Kingdom.

This agreement does not bring Brexit to an end, it is instead a five year political truce.

*****

This law and policy blog provides a daily post commenting on and contextualising topical law and policy matters – each post is published at about 9.30am UK time.

Each post takes time, effort, and opportunity cost.

If you value the free-to-read and independent legal and policy commentary both at this blog and at my Twitter account please do support through the Paypal box above.

Or become a Patreon subscriber.

You can also subscribe to this blog at the subscription box above (on an internet browser) or on a pulldown list (on mobile).

*****

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

Comments are welcome, but they are pre-moderated.

Comments will not be published if irksome.

 

 

 

The United Kingdom-European Union trade agreement – the early emerging picture

27th December 2020

The draft trade agreement between the European Union and the United Kingdom and related documents were published yesterday.

As this blog has previously averred, there is not sufficient time for this agreement and related documents to be properly analysed and scrutinised before the Brexit transition period ends automatically on 31st December 2020.

All one can really do in the time available is read through the documents, spot patterns and complications, and notice the more obvious deficiencies, discrepancies and omissions.

Proper analysis and scrutiny of such a large legal instrument is not and cannot be a linear, read-through exercise.

It is instead complex: comparing provisions within the agreement and related documents, then matching the provisions with external legal instruments, and – most importantly – practically stress-testing the proposed provisions against reality.

As this blog has previously said, legal codes are akin to computer coding – and so quick reviews before deployment will not spot the inevitable bugs.

All that said, there are already some emerging shapes and overall impressions.

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The best starting point is the European Union page, which has links to a number of relevant documents.

You will see there that there is not just one draft agreement, for trade – there are also a security of information agreement and a civil nuclear Agreement.

There is also a 26-page document of ‘declarations’.

Also worth looking at is this 2-page table of consequences of the United Kingdom’s departure and the benefits of the agreement.

The corresponding page of the United Kingdom government has fewer resources but there is this 34-page explainer which summarises at a high-level the ‘core’ provisions of the agreement.

(Though without the contents pages and judicious use of spacing, numbering and tabes, that explainer would have significantly fewer pages.)

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A number of commentators and experts have also shared their early views and impressions.

The excellent team at the Institute of Government have provided initial analyses of the provisions at their site – see the links on the left of that landing page for their looks at individual areas.

Professor Steve Peers – author of various leading texts on European Union law – spent Christmas Day and Boxing Day putting together an explanatory thread on Twitter.

The thread, like the rest of his social media output, is an astonishing work of immediate legal commentary and is a boon for the public understanding of law.

There was other outstanding commentary.

Trade expert Dr Anna Jerzewska: 

Services expert Nicole Sykes:

Former United Kingdom senior trade official David Henig did a post and a thread:

Another trade expert Sam Lowe observed that the trade side of the agreement was thin and – but for politics and choreography – could have been completed more quickly:

John Lichfield provided an informative thread on fisheries:

And extradition lawyer Edward Grange had a similarly informative ‘quick look’:

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In my own area of particular interest – institutions, governance and dispute resolution – my own very preliminary tweet got widely shared:

And it was even picked up by the Daily Express, which – in an extraordinary and unexpected turn of events – described this blog as an ‘influential blog’.

Anton Spisak looked at this far more closely and he compiled this helpful diagram:

This elaborate scheme was correctly described by Professor Phil Syrpis as follows:

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All this is only ‘first glance’ stuff – a Boxing Day walk-through a long and complicated legal text.

But what is already plain is that what the United Kingdom government is boasting and spinning about the agreement may not be accurate.

Remember, however, that the old saying ‘the devil is in the detail’ is often the opposite of the truth.

Devils lurk and thrive in generalities, mismatched expectations, mutual misunderstandings, and grand sweeping statements.

It is these that bedevil us.

Details – that is precise language – flush out these devils.

And as we understand more about what has actually been agreed in this ‘deal’ – and what was not agreed – we will no doubt see many devils flush past.

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Why a two thousand page EU-UK relationship agreement cannot be properly scrutinised between now and 31 December 2020

23rd December 2020

A week tomorrow, on 31st December 2020, the Brexit transition period comes to an end.

This transition period has artificially kept in place most of the substance of membership of the European Union for the United Kingdom (other than representation on various institutions) even though as a matter of law the United Kingdom departed the European Union on 31st January 2020.

There is still no agreement in place for the future relationship.

There is still, it seems, not even an agreed draft text in final form.

And there certainly has not been ratification by the European Parliament.

(In the United Kingdom, parliament does not need to ratify an international agreement though parliament may need to legislate so as to implement what has been agreed.)

According to one well-connected and reliable commentator the current version of the agreement is two thousand pages long.

This is not a surprise, given the scope of what needs to be addressed in the agreement – the new ongoing relationship of the United Kingdom and the European Union on trade and other matters.

There are also news reports that the negotiators have missed the deadline for any agreement to be voted on by the European Parliament before the end of the year.

But even if somehow the European Parliament can reconvene before end of the year, there is not enough time for anyone other than those directly connected with the negotiation (and so will be familiar with the text) to scrutinise the agreement.

Today is a Wednesday – Christmas Eve and Christmas Day block out tomorrow and Friday, and then it’s the the weekend, and then it is the Boxing Day holiday on Monday.

That leaves only three full days to do everything.

The situation is ludicrous.

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A legal instrument is a complex thing.

Legal texts are not linear documents – you do not start reading on page one and go through to the end, and then stop.

A legal text is more akin to a computer program – law codes and computer coding are remarkably similar things.

Each provision – indeed, each word – in a legal instrument has a purpose.

Each provision has to, in turn, cohere with all the other provisions elsewhere in the text – so Article 45, for example, needs to fit with Article 54, and so on.

In an international agreement such as this relationship treaty, each provision also has to cohere with hundreds – perhaps thousands – of other provisions in other legal instruments.

(This is especially true of an agreement entered into by the European Union, which is a creature of law.)

Each provision also has to be capable of working in practice – and so needs to be assessed from a practical as well as a legal(istic) perspective.

And – perhaps most importantly – any significant legal instrument needs to be examined and approved by political representatives.

This last requirement is particularly important when the agreement will have huge consequences for people and for businesses.

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And there is something else.

The United Kingdom government has now twice – in a rush – signed up to something so as to ‘get Brexit done’ and then regretted it.

The first was the ‘joint declaration’ in withdrawal agreement negotiations, and the second was the withdrawal agreement itself – which the United Kingdom government sought to legislate so that it could break the law.

This means that nobody can have any real confidence that government ministers have any proper understanding of what they are signing up to.

If any agreement needs proper scrutiny, this one does.

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Charles Dickens in A Christmas Carol makes it so that all three visitations are packed into a single evening.

But not even an imagination as vivid as that of Dickens could make it plausible that a two thousand page agreement of such immense importance could be properly examined as a matter of law and for practicality, and to receive proper political scrutiny, in the few days available before the end of the year.

Brace, brace.

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How a government capable of ‘cancelling Christmas’ did not extend the Brexit transition period – or why populism keeps prevailing over prudence

Winter Solstice, 2020

How did it come to pass that a government capable of ‘cancelling Christmas’ did not extend the Brexit transition period,?

Why is the United Kingdom having to deal simultaneously with the effects of both a pandemic and the departure from the European Union?

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The Brexit withdrawal agreement provided for a transition period, where the United Kingdom remained part of the European Union in substance if not in legal from (though not part of the law and policy making institutions).

Article 126 of that exit agreement provided that this extension period would end on 31 December 2020.

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The exit agreement also provided that the transition period could be extended – either by one or even two years.

This was a prudent provision –  just in case something happened which meant the brisk ‘let’s get Brexit done’ timetable was not possible because of some significant development – well, like a worldwide pandemic.

Yet 1st July 2020 came and went with no extension to the transition period.

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This deadline for putting in place an extension was not a mere omission – the sort of thing a busy government may not have noticed in the rush of events.

The  failure to put in place the extension was a deliberate decision of the United Kingdom.

On 12 June 2020, the cabinet minister responsible for negotiations with the European Union announced proudly:

‘We have informed the EU today that we will not extend the Transition Period. The moment for extension has now passed.’

Had he perhaps not realised there was a pandemic on at the time?

Remarkably, the following sentence of the minister’s statement expressly stated that the decision not to extend was in view of the pandemic:

‘At the end of this year we will control our own laws and borders which is why we are able to take the sovereign decision to introduce arrangements in a way that gives businesses impacted by coronavirus time to adjust.’

The United Kingdom government promoted the decision not to extend as a news story.

The deadline was even the topic of direct discussion between the prime minister and the presidents of the European Council and the European Commission on 15 June 2020:

‘The Parties noted the UK’s decision not to request any extension to the transition period. The transition period will therefore end on 31 December 2020, in line with the provisions of the Withdrawal Agreement.’

The United Kingdom government knew the extension deadline was about to pass, and the government decided deliberately to not have an extension with full awareness (and explicit mention) of the ongoing pandemic.

Getting Brexit done’ was more important.

Populism prevailed over prudence.

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This option to extend the transition period was the only way to do so that was written into the exit agreement.

This means that, on the face of it, there is no way there can be an agreement now to extend the transition period.

The opportunity to extend the agreement would appear to have come and gone.

That said, there may be other ways of an extension – as set out by Georgina Wright and others in this report by the estimable Institute for Government.

And few legal feats are beyond the wits of clever European Union and United Kingdom government lawyers in a crisis.

But such an alternative approach to extension would not be easy nor  can it be instant – it would be an elaborate patch and workaround.

For such an extension to put in place now – ten days before the end of the transition period, with the Christmas holidays and a weekend in the middle – would require extraordinary political goodwill and legal ingenuity.

And all to have the same effect as the opportunity squandered by the government in June 2020.

*

The decision to ‘cancel Christmas’ was, as this blog set out yesterday, not one any government would have wanted to make.

The fundamental mistake of this government was not to prepare people for the possibility – indeed probability – of this decision.

Days before the decision was made, the prime minister was loudly deriding the leader of the opposition on this very point.

Just click  below and watch and listen.

(Alongside this banality, the Secretary  of State for Education was also threatening a London council with a high court mandatory injunction so as to keep schools open.)

*

Had the prime minister and others been acting responsibly, and in the public interest, and given it appears that the government had known about the new coronavirus variant for some time, there should not have been derision of the opposition for the possibility of ‘cancelling Christmas’.

A prime minister and government acting responsibly, and in the public interest, would have been explaining that the public and businesses had to brace themselves for the possibility – indeed probability – of such restrictions and to prepare accordingly.

But the prime minister went for easy claps and cheers instead.

Again, populism prevailed over prudence.

*

Yesterday, this story was published by the government-supporting media.

The ugly truth, however, is that every single significant error in Brexit and with coronavirus has been because of the UK government ‘playing to its domestic audience’.

Every single one.

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The shoddy legal direction of Gavin Williamson to Greenwich Council

15th December 2020

Amidst the flurry of government regulations closing down various things during the current pandemic comes this very different legal instrument from Gavin Williamson, the Secretary of State for Education.

Instead of ordering a thing to close, the Secretary of State is ordering things to stay open.

It is an extraordinary letter, and it is worth examining carefully.

(As a preliminary point, however, please note I am not an education law specialist and so there may be sector-specific legal aspects of this of which I am unaware – the examination in this post is on general legal principles and based on my experience as a former government lawyer and as a public lawyer generally.)

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First, let us look at the power on which the Secretary of State relies upon.

It would seem there is no general legal power for the Secretary of State to order that any school remain open (or close), and so the letter relies on a specific provision in the Coronavirus Act 2020.

(If there were such a general legal power to issue such a direction, then presumably the Secretary of State would rely upon that power instead of the Coronavirus Act 2020.)

The relevant section of the Act is section 38.

The relevant part of that section is section 38(1)(a) which provides for a power to enable the Secretary of State to give directions requiring the ‘provision, or continuing provision, of education, training and childcare’.

That provision in turn refers to a paragraph in a schedule to the Act.

(This is not a ‘paragraph’ as such – it is a wordy provision which goes on for three pages, like something from a W. G. Sebald book.)

The paragraph sets out in detail the requirements for a ‘temporary continuity direction’ under section 38 – like a checklist.

For example, the Secretary of State must have regard to medical advice (paragraph 1(3)(a) and the direction must be necessary and proportionate (paragraph 1(3)(b).

The direction can require the recipient to take ‘reasonable steps in general terms’ (paragraph 1(4)(a)) and require a relevant institution to stay open or to re-open (paragraph 1(4)(b).

There is also a catch-all power that the Secretary of State may make any other connected provisions which he or she ‘considers appropriate’ (paragraph 1(4)(i)).

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What is the duty of the recipient of such a direction?

The Act provides that it is ‘the duty of a responsible body or relevant institution to which a temporary continuity direction…to comply with the direction’.

How is this duty to be enforced?

If the recipient does not comply with a direction, the government can make an application to the courts for an injunction.

(Both the above are in paragraph 1(6) of the schedule.)

This would, of course, be an unusual injunction – most injunctions prohibit a person from doing a thing, while this will be a rarer ‘mandatory’ injunction requiring a person to do a thing.

A failure to comply with an injunction is, at law, a serious matter and can be a contempt of court, with (presumably) sanctions such as imprisonment and unlimited fines.

A breach of a mandatory injunction may also result in a court directing that the required act be completed by another person at the expense of the disobedient party (CPR 70.2A).

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This looks like a wide and arbitrary power for the Secretary of State to give directions, with serious sanctions for a breach of a direction.

But if you look carefully there are explicit statutory requirements for the Secretary of State to be reasonable and to use this power only where necessary and proportionate.

These requirements are also imposed by the general law.

These will be quite high hurdles for the Secretary of State to jump.

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Going back to the letter, you will see that in paragraph 2 of the letter the Secretary of State asserts that he ‘considers [the direction] to be reasonable’ – but there is almost no reasoning other than a general reference to a general interest (‘of securing that schools…allow pupils to attend school full time’ ) and a general reference to the Secretary of State’s guidance (but with no specific guidance quoted).

There is also no local data.

Any court would expect to see far more reasoning than this before enforcing such a direction with a mandatory order.

For example, can the education of the pupils not be done remotely?

Has proper regard been made to local conditions?

Is it proportionate and necessary to mandate a school to remain open with only days left in the school term?

Is it fair and equitable (a test of most injunctions) to insist a state school remain open when many private schools remain closed?

These are not ‘gotcha’ questions, but points which one knows a court will ask before granting an injunction – and so should be anticipated and covered in a letter threatening an injunction.

But there is nothing in this letter to meet these obvious and foreseeable questions that would need to be answered in court.

*

This direction then, even if it is the right thing for the Secretary of State to order, is not a well-drafted piece of legal work.

If i were still a government lawyer I would have been embarrassed to have prepared this for a minister.

It is not enough to assert that a thing is reasonable, necessary or proportionate – these statutory requirements for a direction also need to be shown.

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The recipient of this letter – Greenwich Council – has already published an initial response.

Their initial response is as detailed as the Secretary of State’s letter is not.

“Yesterday we asked all schools in the Royal Borough of Greenwich to move to online learning for most pupils, but keep premises open for the children of key workers, vulnerable children and those with special educational needs. 

‘Other boroughs have asked schools to take similar measures, and the Mayor of London has also called for all secondary schools to close, with an extra week off in January to enable testing.  

‘Our request was based on information from Public Health England and supported by the Council’s Public Health team. In the Royal Borough of Greenwich, we currently have the highest rates of COVID-19 since March, with numbers doubling every four days. Our seven-day infection rate for the borough is now 59% higher than at the same point last week. 

‘Infection rates are particularly high amongst young people, with 817 children of school age testing positive for COVID-19. 4,262 children and 362 staff are self-isolating – that’s an increase of 640 people since Friday. In many cases, other members of the child’s household have also tested positive, impacting entire families. 

‘Schools across the borough have now organised online learning from tomorrow, whilst others are opening their premises to all pupils. This evening we received a legal direction from the Government to withdraw our request to schools. We are in the process of seeking legal advice and will respond to the Government in the morning.  

‘We have alerted schools, and will speak to them tomorrow. But given we received this notification just before 5pm, it was impossible to ask schools to change any of the arrangements they have in place for Tuesday.’

The person(s) who drafted that response have done a good job: they are showing how the closure is reasonable, necessary and proportionate.

The response is based on local data and shows that reasonable alternative arrangements have been made.

The response also shows the council is in a better position to asses the situation than the Secretary of State.

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On the basis of information in the Greenwich Council response, the government would be hard-pressed to obtain an injunction in support of their direction.

None of the above is to say that the government’s ultimate position is weak – a better prepared direction, based on local data, and with proper and detailed reasoning, may have been – or still be – possible.

But such a direction letter was not sent, and this shoddy one was sent instead.

The Secretary of State may issue a better direction – or government lawyers may turn up to court with a better application for an injunction.

The government is even threatening to go to court ‘without notice’ so that the council may be subjected to an injunction without any say in court, which would be inappropriate given the council have set out already that it believes it is acting reasonably.

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Ministerial directions are powerful legal instruments, but they should always be used with care.

When I was young I often had reports sent from school averring that I could do better.

But here we have what purports to be a formal government direction sent to keep schools open where one could say of the Secretary of State that they could do better.

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POSTSCRIPT

Sadly – at least for the legal commentary (at least) the council has decided not to contest the direction in court.

The council, of course, is entitled to take such a decision.

But its decision to comply with the direction does not take away anything from the critique above.

*****

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Sovereignty and ‘Sovereignty!’

11th December 2020

One feature of contemporary politics in both the United Kingdom and United States is the way descriptive words and phrases have become slogans with a very different meaning.

This blog has already described the unhappy juxtaposition between ‘Law and Order!’ and law and order – and we now have a populist president in the United States using his power to pardon so as to place people above and beyond the law, while the populist government of the United Kingdom sought recently to expressly legislate that it could break the law.

And a similar distinction can be made about sovereignty and ‘Sovereignty!’.

In the United Kingdom it would seem that one explanation of the ongoing failure for a trade agreement to be finalised with the European Union is because of this ‘s’ word.

Here, as examples, are some recent tweets from the United Kingdom’s head negotiator.

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So what does this ‘s’ word mean?

From a legal perspective, sovereignty is really about two things.

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First, sovereignty is about the ultimate source of political power in any given polity.

In the United Kingdom, as its name suggests, the ultimate source of political power is the crown.

Some would say is not correct to even speak of the ‘sovereignty of parliament’ – the power of parliament to make or unmake any law always depends on a bill receiving royal assent.

Only with the crown’s approval does a law then have super-duper magical power.

Resolutions and motions of either or both houses of parliament may bind parliament but they do not have the same effect outside as legislation.

That is why I and others tend to write of ‘supremacy’ of parliament, not sovereignty.

The crown also is the source of political power elsewhere in the United Kingdom constitution.

It is the source of power – somewhat obviously – in respect of the so-called ‘royal prerogative’ – where the executive gets to do things which have legal effect without any legislative basis.

It is the source of power with ‘royal charters’, instruments which can have legal effects similar to legislation.

And the crown is the ultimate source of power for the judiciary, at least for the high court of England and Wales.

(This means that in constitutional terms, the two Miller cases on prime ministerial power can be characterised as being about the crown in the courts adjudicating on the powers of the crown as exercised by ministers so as to circumvent the crown in parliament.)

This form of sovereignty is quite unaffected by anything Boris Johnson and David Frost may or may not agree to with the European Union.

Just as parliament was always able to repeal the European Communities Act 1972, parliament will be able to make or unmake any law which flows from the post-Brexit relationship agreement, and that will be respected by the courts.

So this cannot be the meaning of sovereignty that Johnson and Frost have in mind.

Nothing in any post-Brexit trade agreement is relevant to this meaning of sovereignty at all.

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The second legal meaning of sovereignty is not so much about the source of power but about legal capacity.

A sovereign thing can do and not do as it wishes.

And one thing a sovereign thing can do is to enter agreements with other sovereign things.

This is where Johnson and Frost appear to misunderstand the ‘s’ word.

For them, ‘Sovereignty!’ means that the United Kingdom cannot and should not enter into and be bound by any international agreements.

But one test of sovereignty is that a thing is capable of entering into international agreements – the cart is not before the horse.

In general terms, being able to accept obligations is the very point of sovereignty: that a nation state can enter into a treaty means that it is a sovereign state.

(For more on the fascinating history of sovereignty and treaties, see here.)

This is why, for example, Canada, Australia and New Zealand insisted on being separate signatories to the surrender instrument of Japan, and to not allow the United Kingdom to sign on behalf of the then empire.

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Sovereignty thereby does not mean that the United Kingdom cannot and should not enter into international agreements.

Sovereignty means that the United Kingdom can do so.

And any international agreement means accepting obligations that restrict autonomy, for that is the nature of an obligation.

Under the North Atlantic treaty, for example, the United Kingdom has an obligation to go to war even if it not attacked itself

Article 5 of that treaty provides:

“The Parties agree that an armed attack against one or more of them in Europe or North America shall be considered an attack against them all and consequently they agree that, if such an armed attack occurs, each of them, in exercise of the right of individual or collective self-defence recognised by Article 51 of the Charter of the United Nations, will assist the Party or Parties so attacked by taking forthwith, individually and in concert with the other Parties, such action as it deems necessary, including the use of armed force, to restore and maintain the security of the North Atlantic area.”

Some would say that Article 5 of the North Atlantic treaty is a greater interference with the ‘s’ word of the United Kingdom than anything which has come from the European Union.

And it is difficult to reconcile many statements of government-supporting politicians on sovereignty in respect of the European Union with their continued support for the United Kingdom being part of NATO.

Similar points can also be made for the United Kingdom’s obligations under the United Nations charter and indeed under any other international treaties.

Trade-offs on autonomy are a feature and not a bug of being a sovereign state.

An analogy is with being able to marry: when a person reaches their majority they can enter into a marriage contract should they so wish, but being in their majority does not compel them to either marry or not marry, and if they marry they can always divorce.

The Johnson-Frost approach to the ‘s’ word is confused.

They seem to think sovereignty means that the United Kingdom cannot and should not enter into international agreements, whereas sovereignty actually means that the United Kingdom can do so should it want to do so.

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An indication of the United Kingdom government’s incorrect understanding of sovereignty was set out in a white paper earlier in the Brexit process:

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

This is about “feelings” – not law or policy.

Brexit as therapy – so as to make the United Kingdom “feel” it is a sovereign state.

And this is the fundamental misconception of those who assert ‘Sovereignty!’ just to make themselves feel better.

Sovereignty exists anyway.

Sovereignty does not care about your feelings.

**

This law and policy blog provides a daily post commenting on and contextualising a topical law and policy matter – each post is published at about 9.30am UK time.

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