Category: The Union, Northern Ireland, Scotland, Wales

The fateful Bloomberg speech of 2013 – contextualising *that* speech by David Cameron eight years later

24th January 2021

Eight years ago yesterday the then prime minister David Cameron gave a speech at Bloomberg.

The speech was to have significant consequences.

The speech can be read here and can be watched here:

And, for background, there is also this Wikipedia page.

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What should make of Cameron’s Bloomberg speech eight years later?

The speech is undeniably important in the telling of the story of Brexit.

Indeed, when historians come to write of the causes of Brexit, this speech is likely to be be emphasised as a key short-term cause.

It was the first of a sequence of events that led to the Brexit we now have: the Conservative manifesto commitment for a referendum; the 2015 general election; the return of an overall Conservative majority; the referendum bill, the (supposed) ‘re-negotiation’; the calling of the referendum; the (lacklustre) government campaign for remain; the referendum result; and so on.

In terms of a linear sequence of events, the Bloomberg speech would seem to have more reason than many others to be the prime-mover – at least in the short-term.

The first of an apparent chain reaction of political explosions, some with bigger bangs than others, that lead to the biggest bang of all: the rushed departure of the United Kingdom from the European Union.

But.

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As Voltaire once said somewhere, history is a box of tricks we play upon our ancestors.

And so what looks neat and linear in hindsight can often be misleading.

This is because although historical narratives are (necessarily) linear if not always neat, past events are complex and invariably messy.

Accordingly, to reckon the significance of a politician’s speech – or of any text or any other speech act – one needs to place that text in contexts.

Otherwise one can fall into the error of thinking, in this particular case, that had Cameron not made that speech in 2013 there would not have been the Brexit we now have, or indeed perhaps no Brexit at all.

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One context for the speech is the political situation of the Conservative party in and around 2013.

The party was in a coalition government with the Liberal Democrats, and the party itself had not had a majority in the house of commons since the early years of the premiership of John Major some twenty years before.

And in 2011 to 2013, the Conservative party looked as if it was being out-flanked by the United Kingdom Independence Party (Ukip).

So until and unless the Conservative party addressed the reasons for Ukip support – either by facing Ukip down or by engaging with its politics – there was a real prospect that the Conservatives would go yet longer without a parliamentary majority.

The Conservative chose to share the politics of Ukip: to make the departure of the United Kingdom from the European Union a real possibility.

(And the general election results of 2015 and indeed 2019 indicate that this Conservative political strategy has worked.)

Of course, had Cameron not made the Bloomberg speech in 2013, the surge in Ukip support and its political threat to the Conservatives would not have gone away.

Even with that speech, and the Conservative manifesto commitment of a referendum, Ukip performed strongly (at least in terms of votes) in the 2013 local elections, the 2014 European Parliament elections and the 2015 general election.

As such the Cameron speech was not a cause but an effect, and had a Conservative leader not done something in response to the rise of Ukip support eight years ago yesterday, there would have been something else before not much longer instead.

Some would say that a Conservative leader could have taken on the Ukip threat – like, say, the then Labour leader Neil Kinnock did with Militant in the 1980s – but that was not realistic.

The Conservative party – like the Labour party – had not made a positive case for the European Union for decades: to the extent the European Union impinged on domestic politics, it was invariably in terms of what the United Kingdom had opposed or had opted out of.

So as long as the Conservatives sought to obtain a parliamentary majority and Ukip would challenge that, then the place and timing of the offer of any referendum was incidental.

And given that the issue of membership of the the European Union would dominate the general election of 2015, it is quite plausible to see a referendum with a Leave victory happening afterwards, even if no speech had been given at all, at Bloomberg in 2013 or elsewhere.

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Another context for the 2013 Bloomberg speech and its referendum commitment was the casual approach of Cameron to constitutional matters generally and referendums in particular.

There had already been a United Kingdom-wide referendum on the electoral system in 2011 which Cameron and other opponents of that electoral reform had defeated comfortably.

Cameron and the Conservatives were also bullish about the impending Scottish referendum (that the United Kingdom government had then recently agreed would happen and which took place in 2014).

Referendums must have seemed a doddle.

And, in any case, that there would be a referendum on any future European Union treaty ‘giving powers to Brussels’ was part of the law.

This general lack of constitutional seriousness can be evidenced in other examples from around the same period: in 2014, the Conservatives put forward an especially flimsy proposal for repeal of the human rights act and in 2015, Cameron sought fundamental reform of the house of lords just because of a defeat on a tax credits proposal.

The historical caution of the Conservative party in respect of constitutional matters was non-existent by the time of the leadership of Cameron.

And so eight years ago yesterday for Cameron to make a commitment to a referendum of such potential constitutional import was not a big thing for him or most of his party.

He probably put no more serious thought into the actual implications of a referendum defeat than he would have put into an essay on the topic of referendums on a PPE degree course.

In hindsight one can now see the serious consequences of such a referendum – not least how it can create a ‘mandate’ that undermines not only effective parliamentary scrutiny but the very doctrine of parliamentary supremacy.

But in 2013 this was not given a second thought, nor indeed much of a first thought.

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A third context for the speech eight years ago yesterday is not provided by a thing, but an absence of a thing.

In the late 1980s, the 1990s and the early 2000s there was such a thing as ‘Euro-scepticism’.

(I know this because I happen to have been a Maastricht-era Euro-sceptic.)

This approach had two broad features.

First, it insisted that it was primarily about being wary of the direction of the European Economic Community (and then European Union).

In this, the guiding text was another speech by a Conservative leader, at Bruges in 1988, where Margaret Thatcher said:

“We have not successfully rolled back the frontiers of the state in Britain, only to see them re-imposed at a European level with a European super-state exercising a new dominance from Brussels.”

(Euro-sceptics, however, tended to ignore a later part of the same speech where Thatcher also said “Britain does not dream of some cosy, isolated existence on the fringes of the European Community. Our destiny is in Europe, as part of the Community.”)

The second feature of Euro-scepticism was that it was often a reaction to some new treaty advancement: Maastricht, Amsterdam, the (proposed) constitutional treaty, Lisbon.

But when this juggernaut of new treaties came to a halt with the treaty of Lisbon of 2007-9 – there have not been any such significant treaties since – Euro-scepticism lost the yin to its yan.

The development of the European Union entered into a settled stage.

And Euro-scepticism, as it had existed, served no purpose – the question became not about how the latest (supposed) treaty push towards integration should be countered but about membership itself.

There was now just a binary choice.

Any referendum would not be (and could not be) about any new treaty – as envisaged by the 2011 referendum legislation – because there were no new treaties.

The only thing left for a referendum to attach itself to was the question of membership itself.

And so a further context for the 2013 speech and the 2016 referendum is that – paradoxically – the end of substantial formal moves towards European Union integration at Lisbon meant that there was more risk that membership of the European Union was in question.

Those opposed to the European Union had now the cake of no further integration, and the supper of potential withdrawal.

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There are many other contexts – geopolitics, migration, the credit crunch and austerity, and so on.

This post is not and does not pretend to be exhaustive.

But as with another post at this blog, on counterfactuals, this post avers that Brexit was not about just one bad decision.

There are many ways things could have happened differently and the United Kingdom could still today be in a post-Brexit predicament.

(And alternatively, there are no doubt certain decisions which could have led to substantially different outcomes – such as the decision by former prime minister Theresa May to rule out membership of the single market and the decisions by opposition leaders in late-2019 to nod-along with a general election.)

But the way Brexit did happen, at least in the short-term, followed a fateful speech eight years ago yesterday – when Cameron opened a box of tricks to play upon his contemporaries.

*****

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The United States had its cathartic post-2016, post-Trump ceremonial moment – but the United Kingdom cannot have a similar post-2016, post-Brexit moment

22nd January 2021

Two days ago the inauguration of a new president in the United States gave ceremonial form to the constitutional substance that the presidential term of Donald Trump was over.

What had been done in 2016 had, to a significant extent, been undone.

Of course, there will be things that could not been undone, such as the scale of the avoidable loss of life by reason of a flawed coronavirus policy.

The extensive conservative appointments to the federal judicial benches will take a political generation to counterbalance, if they are counterbalanced at all.

And Trumpism – populist authoritarian nationalism feeding off post-truth hyper-partisanship – certainly has not gone away, even if Trump is no longer in the White House.

But taking account of these exceptions, there was still a moment of closure: that a particular presidency was both formally and substantially at an end.

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In the United Kingdom there will not be such a moment where one can say the consequences of the 2016 referendum vote will come to a similarly cathartic end.

In 2016, American voters (via the electoral college) elected Trump for a term of four years, while those in the United Kingdom voted for Brexit with no similar fixed term.

One decision was set to be revisited in four years, the other was not.

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Even the (various) departure dates have not provided any sense of release.

The United Kingdom was to leave on on 29th March 2019, then 12th April 2019 or 22nd May 2019, then 31st October 2019, and then 31st January 2020 (on which date the United Kingdom technically left the European Union), and then there was a transition period which would end on 31st December 2020 (on which date the transition period did end) or 31st December 2021.

A couple of this spate of departure dates did turn out to be legally significant, but none of them appear to have had any substantial effect on the politics of Brexit.

Those in favour of Brexit appear to still be trying to convince themselves and others of its merits, and those opposed to Brexit are still seeking to demonstrate its folly.

(This is despite the ‘mandate’ of the 2016 referendum having now been discharged,  in that the United Kingdom has now departed the European Union.)

None of the various departure dates marked when those in favour of or against Brexit could say the matter is decisively over, in the same way the Trump presidency came to its obvious end.

Partly, of course, this is because of the ongoing pandemic: every political thing is now muted.

But even taking the pandemic into account, the politics unleashed by the 2016 referendum have certainly not come to anything like an end.

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But Brexit will never be over in other senses.

As I averred in this Financial Times video, the trade and cooperation agreement between the European Union is expressly structured as a ‘broad….framework’ that can be supplemented by further agreements on discrete issues and is subject to five-yearly reviews on more fundamental issues.

 

Brexit is now a negotiation without end.

Instead of ever-closer union we now have ever-closer (or less close) cooperation.

There has not been a once-and-for-all settlement of the matter of the relationship between the United Kingdom and the European Union.

We have simple swapped one dynamic relationship for another.

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Some of those opposed to Brexit are now waiting for a grand realisation – where a substantial number of people may wake up to what has happened since 2016 and come to their senses.

The notion is that such ‘loss aversion’ will have considerable political force and push the United Kingdom back towards the European Union – perhaps even to swiftly rejoining as a member.

This may happen – the lesson of 2016 is that many unlikely things can actually happen in politics.

But it is unlikely – the government and its political and media supporters are adept at evasions and misdirections, and voters are capable of blaming many things before they will blame their own votes.

Yet taking this as a possibility, it would not be enough.

This is because there are two constituencies that those who seek for the United Kingdom to (re)join the European Union need to win over.

The first is the United Kingdom electorate which needs to be won over to settled and sustained support for full membership of the European Union (without the benefits of the United Kingdom’s previous opt-outs).

The second, and perhaps far harder, will be winning over the European Union.

A belief that once the United Kingdom sorts itself out, that (re)joining the European Union would be straightforward is just a variant form of British (or English) exceptionalism.

Even the grandest, most dramatic domestic realisation of the folly of Brexit will not mean the United Kingdom joins the European Union again, unless the European Union also sees it as in its interests for the United Kingdom to (re)join.

Remorse, however sincere and lasting, will not be enough.

There is no reason or evidence to believe that the European Union would consider membership of the European Union for at least a political generation.

(And the United Kingdom itself may not even exist in its current form by then.)

So as Brexit is a negotiation without end, it will also be two political exchanges (the domestic debate, and the two-way relationship between the United Kingdom and the European Union) without any early or obvious end.

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There will be no cathartic Biden-like ceremony to bring Brexit to a close.

This is because of the nature of the 2016 referendum (which, unlike the election of Trump, was not a decision for a fixed period); and because of the dynamic structure of the new relationship as set out in the trade and cooperation agreement; and because of the unsettled politics both internally in the United Kingdom and of its relationship with the European Union.

And so, to a significant (though not a total) extent, the United States was able to bring what it decided in 2016 to a formal and substantial end, the United Kingdom cannot similarly do so.

For the United Kingdom, 2016 is here to stay.

*****

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Why the campaign to ‘rejoin’ the European Union is misconceived – the campaign must make a positive and sustainable case for membership, regardless of Brexit and the past

10th January 2021

For many who were ‘Remainers’ the obvious next step is to become ‘Rejoiners’ with the object of ‘reversing Brexit’.

And in pursuing this object they will understandably point to the many misfortunes and problems that have been – and will be – caused by Brexit.

The hope, if not expectation, seems to be that the sheer accumulation of adverse evidence will mean that a sufficient people will see ‘what we have lost’ and this will lead to political pressure for the United Kingdom to quickly rejoin the European Union.

This approach may work – one lesson from the last five years is just how quickly politics can change, and in any direction.

But.

For the following three reasons, this blog submits that such an approach is misconceived and avers that a different approach should be adopted by those who want the United Kingdom to be a successful applicant for membership of the European Union.

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The first reason is that the emphasis on the ‘re-‘ in ‘rejoining’ – especially if that is based on relying on the adverse consequences of departure – is not a positive case for membership.

There needs to be more than the simple application of the pleasure-pain principle.

One feature of the United Kingdom’s membership of the European Union was that since at least the completion of the single market in 1992 there was never a positive case made for membership in frontline politics.

Instead, the two biggest political parties competed with each other as to which was the one that secured the more opt-outs, whether it be the Euro, the social chapter, free movement of peoples, justice and home affairs, or so on.

The case, if any, for the United Kingdom’s membership of the European Union was that it was ‘less bad’ than any alternative.

This scepticism and often outright hostility was also a feature of much of the news reporting of the same period – and such was the lack of popular understanding of the role and nature of the European Union that it was easily made to blame for things for which it was not responsible.

And after twenty-five or so years of such negativity, it was perhaps more surprising that the 2016 referendum was so close than that the remain side lost.

It was not so much that the leave side won the 2016 referendum that the remain side lost.

This mistake should not be repeated.

The case for European Union should be a positive one – and that means that it should be a case based on the advantages that membership of the European Union will have for the United Kingdom.

What would be the benefits of membership of the European Union, which could not be attained in any other way?

For, as this blog was previously contended, those in favour of membership have a challenge.

Can you, for example, make out the case for the United Kingdom joining the European Union without reference to the fact that the United Kingdom was a member?

If a compelling case cannot be made for the United Kingdom in the here-and-now to become a member of the European Union then it is difficult, if not impossible. to see how sufficient political support can be achieved for a viable application for membership.

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The second reason is the United Kingdom is highly unlikely be able to ‘rejoin’ quickly.

The notion that somehow the European Union will gladly accept a United Kingdom quickly bouncing back and pretending nothing had changed is a fantasy.

Indeed, it is just a new variant form of British (or English) exceptionalism.

The new trade and cooperation agreement is structured for the medium to longer-term.

As I set out in this new Financial Times video, the agreement is a ‘broad…framework’ for discrete supplementary agreements over time, with any more significant shifts (either in the the direction of closeness or otherwise) being on a five-year review cycle.

 

And this accords with the five-year cycle on which the European Union conducts its own business.

We can no longer snap our fingers and demand immediate attention, loudly and in English.

The United Kingdom is now on the outside, looking in.

And as this blog has previously averred, the European Union will understandably want to take time to see if the internal politics of the United Kingdom have settled down in favour of membership of the European Union.

The European Union will not want to let the United Kingdom back in only to have to devote time and effort in dealing with another Brexit, like some geo-political Groundhog Day.

The European Union will also want to see what happens to the United Kingdom itself over the next few years: Irish unification? Scottish (or even Welsh) independence?

What will be the situation of the European Union and of the world in 2026? 2031? 

Therefore there not only needs to be a positive case for United Kingdom membership of the European Union, it has to be a sustainable case too.

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The third reason is that an emphasis on ‘rejoin’ and ‘reversing Brexit’ carries a real risk of campaigners eternally refighting the 2016 referendum.

Like some historical re-enactment society, but for the battle of Brexit rather than the battle of Naseby.

Of course, remainers are right to have grievances about the circumstances of the referendum and the conduct of the campaign(s) for leave.

Remainers also are right to complain about the process (or lack of process) that followed the referendum and which has resulted in the United Kingdom ceasing first to be a member of the European Union and then having the protection of the transition arrangements.

Nothing in this post should be taken to mean that that the politicians who have made serious misjudgments about law and policy should not be held to account – indeed that is one purpose of this blog.

But pointing out problems and failings, either now or back in 2016, is not going to lead to the United Kingdom becoming (again) a member of the European Union.

This is not only because it is difficult to get a sufficient number of voters engaged, and that government supporters and Brexiters are so deft at evasion and misdirection.

It is because there is a fundamental disconnect between problem and solution.

Whether the United Kingdom becomes (again) a member of the European Union in 2026 – or whenever – will not be a logical consequence of redressing the wrongs and of 2016 or even those emerging in 2021.

Membership of the European Union may be a prize, but it will not be a consolation prize.

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The task ahead for those in favour of the United Kingdom (again) becoming a member of the European Union is immense.

A positive case has to be made over time so that the European Union will seriously consider a fresh application.

But that is not an impossible task.

And at least, unlike the supposedly ‘pro-European’ politicians of the last thirty or forty years, this will be a positive case.

One problem with the politics of the United Kingdom in recent decades is that the positive case for membership of the European Union was rarely made.

Now is the opportunity for that to be put right.

*****

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The real origin of the European Union ‘supranationalist’ state – and why it still matters

4th January 2021

There is a view held by many in the United Kingdom that the European Union – and its predecessors – was not always a ‘supranational’ organisation.

That it was not always an entity which routinely transcended national boundaries.

The view is that it was once a mere innocent trading association and an international organisation – and that it was only after the United Kingdom joined in 1973 that it corrupted into a supranational organisation, which took rule-making and decision-making out of the hands of member states.

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Some will know this is not true and will point, say, to the Treaty of Rome of 1957, which established the European Economic Community, with its express determination that the treaty would lay the “foundations of an ever closer union among the peoples of Europe”.

Others will point to the 1960s caselaw of the European Court of Justice, such as the Costa v ENEL judgment of 1964 that made it as plain as a pikestaff (the lawyers’ equivalent of ‘absolutely clear’) that the domestic law of a member state was subordinate to the provisions of both the Treaty of Rome and the legal instruments made thereunder.

The United Kingdom thereby knew exactly what it was joining in 1973, and only a fool or knave could (and did) pretend otherwise.

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Yet the supranational essence of what the United Kingdom joined in 1973 was older than the Costa case of 1964, and was even older than the Treaty of Rome of 1957.

Here it is important that the United Kingdom did not just join the European Economic Community in 1973 but also another community, the deceptively unglamorous-sounding, and older, European Coal and Steel Community (ECSC) of 1952.

For some, the historical fact that the United Kingdom joined more than one community in 1973 is nothing more than an answer to a quiz question, or the reason why the European Communities Act 1973 employs the plural form of community.

But it was a lot more significant than that.

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To understand why, we have to go back to the years after the second world war and the problem of what should be done about Germany – in particular, the industrial areas of Rhineland and Saarland.

In 1944 the plan was to eliminate much of this industrial capacity; and in 1946 another plan was to give France control.

But by the late 1940s neither of these strident approaches seemed sustainable, especially in view of the need to not de-stabilise (what was then) West Germany, and so another approach was needed.

In 1950, a suggestion was made that there be a ‘high authority’ be put in place, overseeing French and German coal and steel production.

And by 1951 – with the Treaty of Paris – this idea had developed into an array of supervisory institutions – not only a high authority, but also an assembly, a council of ministers and – significantly – a dedicated court, with these further institutions balancing the executive power of the high authority.

The high authority furthermore had the power to issue decisions and recommendations binding the signatories – France, West Germany, Italy and the three Benelux countries (who were already heading towards economic unity).

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So we have in 1952 the establishment of the ECSC – with a supranational group of institutions in place and with the power to make law and adjudicate disputes, ensuring adherence to shared treaty obligations.

And the key element of this arrangement was not that it was aspirational – notwithstanding the heady language of integration that accompanied it – but that it was a solidly, deeply practical solution to a problem – of what should be done in respect of the post-war industrial relationship of France and Germany.

Just as, say the Good Friday Agreement used an imaginative cross-border approach to a thorny cross-border problem, so did the Treaty of Paris.

What the Spaak Report of 1956 and the Treaty of Rome of 1957 then did was to employ this supranational approach (with shared institutions and shared law-making) on wider economic questions, as it was seen as an approach that would work.

So when the United Kingdom joined the communities in 1973, the fact that it was joining a practical supranational enterprise had been – well – as plain as a pikestaff for over twenty years.

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What makes this ‘pre-history’ significant is that it is often the view of critics of the European Union that its supranational nature is somehow airy-fairy – that it is impractical and unrealistic.

And this is seen as a contrast to rugged Anglo-Saxon empiricism and practical common sense.

The reality is that the European Union, as with its predecessor organisations the European Economic Community and ECSC, regards its supranational nature as eminently practical, as was as embodying certain ideals of European unity.

That it works.

Supranationalism is thereby an approach which has worked since 1952 – and not just somehow inflicted by surprise on the united Kingdom after 1973.

It is not as if the debate is between an unrealistic pro-European Union camp and a realistic band of critics.

The problem that the United Kingdom had for a long time when a member of the European Union is that it rarely wanted to work within a supranational organisation.

Supranationalism was, it seemed, for other people.

The United Kingdom regarded supranationalism as a bug of the European Union, and not as a feature.

So the United Kingdom sought – and obtained – opt-out after opt-out, until 2015-16 when it sought a ‘re-negotiation’ only to find the European Union could and would shift no further.

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The supranationalism of the European Union is seventy years old.

The United Kingdom in its modern form as a collection of four nation states has only existed since 1922 – and so is a mere thirty years older than the first of the European communities. 

As this blog has previously averred, political unions come and go – and no political union can be seen as eternal.

And given that the supranationalism of the European Union is regarded as practical as well as an ideal, there is no inherent reason why the European Union will not last longer than the United Kingdom as a union of nation states.

*****

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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.

*****

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Six reasons why those who want to shift the relationship between the United Kingdom and the European Union need to now think in five-year cycles

29th December 2020

Imagine you are in some remote rural area where the bus or train only comes on a given day at a given time.

This is what it will be like for those who want to substantially change the relationship between the United Kingdom and the European Union once the trade and cooperation agreement is in place.

But instead of the the weekly or monthly bus or train, this cycle will be every five years.

And if that opportunity is missed, then it will be another five years before the opportunity comes around again.

This is because of one major reason – and also (perhaps) because of five other reasons.

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The first reason, as this blog set out yesterday, is that the European Union itself works in five-year cycles.

Each European Commission is appointed for five years and each European Parliament is elected for five years.

The Presidents of the European Council tend to also have five-year terms.

And after each five-year cycle, the European Union project is then (in effect) handed over to a new European Commission and President of the European Council.

It would thereby appear to be no accident that the review cycle for the trade and cooperation agreement is five years.

This means the European Union’s relationship with the United Kingdom will be dealt with in a manner that is convenient to Brussels and not London.

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This leads to the second reason.

The United Kingdom is no longer sufficiently important to disrupt the normal European Union political and policy life-cycle.

This will come as a shock to many in the United Kingdom who are used to demanding time and immediate attention from the European Union.

From the supposed re-negotiation of 2016, through the withdrawal negotiations, to the relationship negotiations, the European Union kept responding to the sound of the clicking fingers of the United Kingdom.

And the European Union had to do this, as the departure of a Member State could not be taken lightly.

But this effortless priority is now over.

Any substantial changes to the new relationship will have to fit in with other matters and be dealt with at what is the natural pace of Brussels.

And, in any case, many in the European Union are bored and tired of Brexit.

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The third reason is that it is only with five-year cycles that the European Union will be able to assess the stability and sustainability of any United Kingdom political and policy position on the European Union.

Even if there were some sudden political shift in favour of the United Kingdom joining, say, a customs union or becoming part of the single market, the European Union would want to see if that was a settled and consensual position.

The European Union is all too aware of the rapid convulsions that the European Union issue can cause to the politics of the United Kingdom.

Remember that in 2015 there was a general election in the United Kingdom where every major party was in favour of membership of the European Union – and three prime ministers and two general elections later, the United Kingdom is no longer a member state.

And 2015 was, well, five years ago.

The European Union has no interest in a substantial shift in its relationship with the United Kingdom which could quickly become undone.

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The fourth reason is also to do with the United Kingdom.

Will there even be a United Kingdom of Great Britain and Northern Ireland in five or ten years’ time?

As this blog has previously averred, two natural consequences of Brexit are a united Ireland and an independent Scotland.

These are not things which will necessarily, still less automatically, happen.

But they are foreseeable.

And so five-year cycles will allow the European Union to see not only how the politics and policies of the United Kingdom settle down, but also how the United Kingdom itself and its constituent parts settle down.

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And this structural point goes both ways – for the fifth reason is that the European Union itself in five and ten years’ time may itself be a different creature to what it currently is.

Freed from the reluctance and relentless scepticism of the United Kingdom, the European Union can now go in a different direction.

And so not only will the European Union want to see what the United Kingdom is like in five and ten years’ time, it will want to see what its own position will be like.

It will not be re-fighting the issues of 2016 or 2020 in its engagement with the United Kingdom, like some geo-political historical re-enactment society.

Regardless of what changes (if any) happen within and to the United Kingdom, the European Union will be thinking in terms of what suits it in 2026, or 2031, or whenever.

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The final reason is beyond the power of both the United Kingdom and the European Union.

In 2026, and in 2031, and so on, the world itself may be very different from now.

Many things may be different: a post-Trump (or revived Trump) United States, a post-Putin (or retained Putin) Russia, China becoming (or not becoming) the world’s largest economy, ongoing pandemics and climate change, and so on.

It may then suit the European Union and the United Kingdom to huddle together – or to huddle apart.

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In setting all this out, I do not wish to give false hope to Remainers/Rejoiners that if with sufficient focus and energy, they could shove the United Kingdom back towards the European Union in 2026 or 2031 or so on.

Indeed, the five-year cycle could even lead to greater divergence.

(And there is a non-trivial chance the United Kingdom may terminate the relationship agreement with one year’s notice.)

But if there is to be a closer relationship – or even an eventual application to rejoin – the United Kingdom will have to have regard to the five-year cycles of the European Union.

As I mentioned above, the days of snapping fingers for attention are over.

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My own view, for what it is worth, is that I hope the five-year cycle leads to an increasingly solid and sustainable association arrangement between the United Kingdom and the European Union – and that it becomes something that endures perhaps longer than the actual membership.

And I hope that the five-year cycles are used to adjust the relationship appropriately.

(I also support an Ireland united by consent and an independent Scotland and Wales, and these developments will also, in my opinion, be easier with an association agreement between United Kingdom (or just England) and the European Union.)

But these are mere hopes, and they can be dashed or discarded.

What is and will be in place, regardless of hopes (or fears), is that it will not be quick and easy for the United Kingdom – or England – to move substantially towards the European Union, let alone rejoin.

The eventful, exhausting 2016-2021 Brexit five-year cycle is over.

Let us see what future five-year cycles bring.

*****

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).

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Comments are welcome, but they are pre-moderated.

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European Union law and the United Kingdom – an obituary

14th December 2020

Over at Prospect magazine my column for the Christmas/New Year special edition was an obituary – for European Union law in the United Kingdom.

Please go over there to have a read – and I just want to develop and add some points here.

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European Union law is radically different from the common law of England and Wales (I am not qualified to speak of the laws of Scotland and Northern Ireland, though similar points may be valid).

By ‘radical’ I mean (literally) that it went to the root of things.

The effect of European Union law was not only to benefit particular policy areas (for example, employment and the environment and so on) – though there is no doubt that whole ranges of policy are better off for the influence of European Union law.

The impact of European Union was also to how one thought about law – and about policy and politics.

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First, the law of the European Union is often ‘purposive’ – in which to understand any legal instrument (a directive or a regulation or a legally binding decision) one often has to go through pages of recitals, other materials, and even back to the ultimate bases of the the provision in the European Union treaties.

This, of course, can be an interesting – sometimes exciting – intellectual exercise but it really does not serve the purpose of legal certainty.

And often it was difficult to say with confidence what the ultimate tribunals of European Union law (the court of first instance and the court of justice) would say the law would be in any given situation.

And unlike courts in common law jurisdictions, the judgments of European Union law judges are often not reasoned but are instead declarative, even assertive.

As a general rule of thumb: a European Union legal instrument is as helpful and detailed as European Union court judgment is not.

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Second, the public law of the European Union has a conceptual unity that the public law of England and Wales does not – or at least did not before the United Kingdom’s membership of the union and its predecessor European communities.

(Public law is the term for the law that regulates public bodies and those exercising public functions and provides for what rights can be enforced against them.)

In England and Wales we, in many respects, did not even have anything one could even call ‘public law’ until the 1960s.

There was instead a mix of actions and proceedings one could take against the crown, against statutory corporations, against courts, and against those holding various public offices.

European Union public law instead provided for a general approach to emanations of the state – and of the rights one could enforce against them.

The European Union legal concept of ‘proportionality’ (that is that a public body should only interfere with the rights of others to the extent necessary to serve a legitimate purpose) was also a welcome change to the brutal and permissive approach of our administrative law – which can be fairly described as allowing public bodies to get away with what they can, unless it is irrational.

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Third, the European Union and its predecessor organisations are creatures of law as much as of policy and politics.

And although one should never underestimate the push and shove of policy and politics, when dealing with the European Union one always should have regard to law.

This was a recurring mistake for United Kingdom politicians.

For example, before the 2016 referendum there was an attempt by then prime minister David Cameron to force through a ‘deal’.

But as this blog has previously explained, the Cameron team wrongly thought it would just be a matter of bombast and confrontation – that the United Kingdom just needed to want something and to demand it loudly.

There were, however, real limits to what the European Union could agree to, at least without treaty changes.

And the same problem happened again and again during the exit negotiations and now the negotiations for the future relationship.

The European Union takes process and legal texts seriously, and the United Kingdom under Theresa May and Boris Johnson did not.

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You will note that this post – and the Prospect column – are not unmixed celebrations of European Union law.

Instead, I have attempted a critical appraisal (though one set out simply and I hope accessibly).

And this is partly because my own ultimate view on Brexit is ambivalent.

In the early 1990s I believed that it would have been better for the United Kingdom to have left the European Union at the time of Maastricht treaty.

It seemed to me then that the trajectory of the European Union towards wider competencies (foreign policy and justice and home affairs) and currency union would not end well in respect of the United Kingdom.

(And it did not.)

But by around 2000 I thought any extraction of the United Kingdom from the European Union would not be worth the time and effort to deal with decades of entwined law and policy.

(And it has not been.)

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The break of the law of the jurisdictions of the United Kingdom from the law of the European Union is going to be messy.

It is not going to be a neat clean break.

And the laws of the United Kingdom are not – thankfully – going to revert back to 1973.

The direct effect and application of European Union law in the United Kingdom may be over – and that is why an obituary is appropriate.

 Its influence, however, will continue for decades.

The United Kingdom may have ‘taken back control’ of its laws – but Brexit will certainly not free domestic law from the impact of the law of the European Union.

*****

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.

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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How Brexit may lead to Scottish independence and Irish unification

1st December 2020

So familiar is the three-word phrase ‘the United Kingdom’ that it can be forgotten that it does not name any particular country.

It is instead a description of dry and abstract political arrangement – the kingdoms that are (somehow) united could be anywhere on the globe.

Of course, the term is short for ‘the United Kingdom of Great Britain and Northern Ireland’ – but the shorter form is more common.

It is worth pausing and thinking about the phrase, as it reminds us that the United Kingdom is itself a political union, as much as the European Union or the Union of Soviet Socialist Republics.

And political unions come and go: there is no inherent reason why any political union is permanent.

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This post is prompted by a tweet yesterday from the Conservative leader in Scotland.

The sentiment of the second sentence of the tweet can, however, be applied to another example of ‘independence’.

https://twitter.com/davidallengreen/status/1333459489383649282

And this will be a recurring problem for British Conservative politicians in opposing Scottish independence: the arguments they deployed in respect of Brexit and against the European Union can be re-fashioned in turn by those in favour of dissolving the United Kingdom of Great Britain and Northern Ireland.

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For what it is worth (and it is not worth much as someone writing from England), I happen to support both Scottish independence and an Ireland united by consent.

This is not because I am anti-English and a rootless cosmopolitan, but a recognition that, in the end, all political unions will tend to come and go.

And although I dislike all forms of nationalism (which often tend to be illiberal), self-determination is very much a liberal value.

The people of Scotland and of Northern Ireland (and of Wales) should decide on their own political arrangements.

The United Kingdom is not necessarily a permanent arrangement.

Indeed, but for events before the Norman conquest, England itself could have carried on for many centuries being a geographic expression with a collection of smaller kingships (Wessex, Mercia, Northumbria), just as Spain did until the early modern period, and Italy and Germany did until the nineteenth century.

‘Great Britain’ itself – a combination of the union of the English and Scottish crowns and then of parliaments 1603 to 1707 – has no greater claim for political permanence than, say, the combined role of the British monarch being also the Elector of Hannover (which lasted from 1714 to 1837).

(On ‘Great Britain’ being a construct, it is worth reading – or at least knowing about – Linda Colley’s Britons: Forging the Nation 1707–1837.)

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But liberal arguments may work both ways.

The liberal principles of internationalism and self-determination can often be used both for and against any particular attempt at political union – for example, an independent Scotland (having exercised self-determination) will seek to be part of the European Union.

The European Union itself has no claim either to permanence, and it may one day join a list of historical attempts at unifying Europe.

Brexit and the recent political events in Poland and Hungary are an existentialist challenge to the European Union, which it may or may not survive.

The point is that no political structure is necessarily eternal.

Many once thought the sun would never ever set on the British Empire, before its fairly rapid dismantlement after the Second World War.

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There is also a plausible argument that it was only membership of the European Union of both the United Kingdom and Ireland that enabled the peace process in Northern Ireland to work and the Good Friday Agreement to be put in place.

Take away the European Union and that handy practical solution becomes unstuck.

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So one particular irony that may come from Brexit is that the so-called Conservative and Unionist Party – by its absolute insistence on forcing through departure from the European Union – may be instrumental in breaking up the union of England, Scotland, Wales and Northern Ireland.

An independence referendum in Scotland and a border poll in Norther Ireland are both now more likely than not in the next few years – and both may well go against being part of a United Kingdom.

And that would be an exercise in ‘taking back control’ – just not the ‘taking back control’ that Brexiters perhaps had in mind.

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The Anatomy of a Potential Constitutional Crisis – Part III – the Failure of the Gatekeepers

14th September 2020

For the current constitutional drama to have got as far as it has means that various ‘gatekeepers’ have either failed to perform their proper function or have been impotent.

By way of recap, the government of the United Kingdom is proposing to enact legislation that is deliberately intended to make it possible for ministers to make regulations that would break international and domestic law.

(See my posts here and here.)

That the legislation is before Parliament means that the process is fairly well advanced – for presenting a Bill to Parliament is about stage seven of a process, not stage one.

The first gatekeeper would have been the head of the government legal service – the Treasury Solicitor – and we know that this is the issue over which the Treasury Solicitor has resigned.

But that resignation has made no difference: the process has continued anyway.

A second gatekeeper would have been the Cabinet Secretary, who is the guardian of the Ministerial and Civil Service Codes.

Yet, somewhat irrationally and inexplicably, the Cabinet Secretary has determined that what the Treasury Solicitor has described as breaches of law are permissible under the Codes.

So much for the civil servant gatekeepers.

Now for the politicians.

The Attorney General, who is nominally the government’s chief legal adviser, is enthusiastic about this law-breaking.

The Lord Chancellor, whose oath of office contains a commitment to the Rule of Law, has said that there are breaches of law that are ‘unacceptable’ over which he would resign, but this is not (yet) one of them.

And on the floor of the House of Commons, the Northern Ireland Secretary spoke of ‘limited and specific’ breaches of law being permissible.

So the gatekeepers of the Attorney General, the Lord Chancellor and the Cabinet generally have also permitted the the process to continue.

These gatekeepers are all checks and balances within the executive, and they usually should stand in the way of any attempt by ministers to abuse or misuse the law.

And all have failed.

So we now move on to the formal legislative process of Parliament and, if the provisions are enacted, the Courts.

And it may well be that the legislature and the judiciary are able to restrain this rogue legislation making it possible for ministers to break the law by regulations (that is, by decree).

If so, that would be an example of a working constitution.

But for this proposal to have even got to this stage, parts of the constitution have not worked.

The constitution of the United Kingdom is not codified and is reliant on checks and balances in practice that have little force other than by convention.

Only at the margins should constitutional tensions be resolved by litigation.

But what happens when the conventions do not work or are flouted?

The current constitutional drama may ultimately show, through Parliament or the courts, how the constitution works – but so far it has also show how the constitution does not work.

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The Anatomy of a Potential Constitutional Crisis – Part II

13th September 2020

Yesterday this blog set out an ‘anatomy of a potential constitutional crisis’.

In that post, there were two extraordinary facts stated that went to the current constitutional drama being serious and also novel.

The first was that a cabinet minister said to the House of Commons that the deliberate intention of the government was to break the law.

The second was that the government’s senior legal official – the Treasury Solicitor – had resigned on this issue.

These two facts indicated – perhaps demonstrated – that the current situation was significantly different from previous threats from the government to disregard the law, which have often only been briefed to the weekend media.

There were third and fourth facts which also should have been listed.

The third fact is that the government has published a Bill with the explicit power of making regulations that would break international and domestic law.

The fourth fact is that the Cabinet Secretary has expressly sanctioned this intention of breaking the law as being compatible with the Codes for ministers and civil servants.

And today there is a fifth fact: the Lord Chancellor suggesting on television that a distinction can be made between ‘acceptable’ and ‘unacceptable’ breaches of the law.

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None of this – yet – constitutes a constitutional crisis.

The crisis would occur if such intended law-breaking survived parliamentary scrutiny and judicial supervision.

If such intended law-breaking did not survive parliamentary scrutiny and judicial supervision that would be checks and balances working as they should in a constitution.

But that said, this is a very different type of constitutional drama to what has gone before in Brexit, and one perhaps has to go back to the unionist threats to disregard the law before 1914 to find a historical parallel.

Of course, all this may just be politics – and there is some planned (or hoped for) political manoeuvre that the government is to execute under cover of this drama.

Such a political game does not, however, justify direct threats by the government to break the law.

Perhaps this is just a passing row, and the government u-turns this week on this proposal.

But that the government risked a constitutional crisis (as well as self-trashing its reputation as a reliable party to international agreements) will linger.

There will be an impact.

And so even if this extraordinary situation is now brought quickly to a halt, what this has created cannot end well.

**

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