Political problems and solutions, and the problem of Theresa May

17th May 2019

(The Lobby of the House of Commons, 1886,
by Liborio Prosper, National Portrait Gallery)

There was a Victorian conservative politician – probably Benjamin Disraeli or Lord Randolph Churchill – who sneered at a person mentioning a political problem.

The gist of the sneer was: dear chap, are you one of those who believe problems have solutions?

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It is a human habit of mind to think problems have solutions.

It is enough for many just to frame a thing as a problem to assume it must thereby have a solution.

You are halfway there, as the saying goes.

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But our Victorian politician is correct: not all problems have solutions.

One of the problems with Brexit at the moment is that our current Prime Minister is not capable of carrying out her – or any – Brexit policy.

No one can deny that this is a problem.

But is it a problem capable of any solution?

Replace May with somebody else and that new Prime Minister will not be capable of carrying out their – or any – Brexit policy.

The problems are structural not personal – though May’s deficiencies can be blamed for that now being the case.

You would think the modern heirs of the party of Benjamin Disraeli and Lord Randolph Churchill (and of Rab Butler and Harold Macmillan) would appreciate that political problems are not always open to (easy) solution – that politics is the art of the possible and events can throw one off-course.

But, no.

The modern Conservative party appears to have been infected by the wild radicalism of those who think there are easy solutions, or even that there are not really problems at all.

And that too is a problem which is not easily solved.

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The Pantomime Macabre of Brexit

15th May 2019

Welcome to the Shadow Dance of Brexit.

Every few days now is a play-cycle.

Theresa May stays as prime minister and announces she is bringing her deal back to parliament by some means or in some form.

Anyone against this makes her only more adamant.

And we all know that she will fail, as she has failed before.

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Elsewhere Brexit supporters will promote their proposals – proposals that have no substance.

Their pretence is that there are easy answers.

And against them there will be Remainers jeering and complaining about the Brexiters.

Few Remainers say anything positive about remaining: it is enough that they jeer at and complain about Nigel Farage and those who enable him.

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And this Shadow Dance, this Pantomime Macabre, will continue for what will seem an eternity.

Boos and cheers.

The same lines, the same rejoinders, the same effrontery.

And all the time, the departure of the UK from the EU by automatic operation of law comes closer.

The two extensions so far fool many into thinking extensions are easy.

Time grinds on, and the Shadow Dance continues.

And in all this, fewer and fewer remember or care what is actually at stake: the practical problems of EU departure and how they can be managed.

But that seems like something for another day.

We can deal with that after tomorrow.

**

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I expect to be blogging here more often, instead of spending time on Twitter.

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In defence of Game of Thrones, episode 8:5

SPOILERS – if that is not obvious from the post’s title.

There are a number of commentators – from newspaper pundits to earnest vloggers on YouTube (who have studied story-telling) – who are unhappy with Game of Thrones episode 8:5.

The story was not supposed to go like this.

Something has gone wrong.

The storytellers – the writers – have made a mistake.

The storytellers are to to blame.

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For what it is worth, I think the writers got it right.

The baddies are not always the ones who are bad.

Give a person lethal fire power they will tend to abuse it.

Give a person absolute power and, as Acton observed, that power can corrupt them absolutely.

War and chaos cut off and disrupt promising character arcs.

Descents into madness are not always gradual but are sometimes sudden and shocking.

Innocents – women and children and civilians – die when built-up areas are attacked.

Soldiers do disgusting things when nothing can stop them.

For me, episode 8:5 was more insightful about the real nature of war and destruction and chaos and ambition than all the other episodes of Game of Thrones put together.

For there to be complaints that war and destruction and chaos and ambition did not accord with expectations shows that the complainants perhaps do not understand the nature of war and destruction and chaos and ambition.

The whole point of war and destruction and chaos and ambition is that it does not accord with expectations.

The great merit of Game of Thrones is that it is more about politics than about fantasy, and the essence of politics is that things do not go the way you expect, and certainly not the way you have led yourself to expect.

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“But the writers…”

“But the plotlines…”

“But the character arcs…”

“But I was so invested…”

Try Harry Potter?

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Thank you for reading me on this new(ish) blog, where I am hoping to blog almost daily.

I expect to be blogging here more often, instead of spending time on Twitter.

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Zombies and Brexit

30th April 2019

Once upon a time I had an idea for a scenario for a story about the Undead.

The scenario addressed two questions: where would the Undead get their energy from, and how would they expend that (no doubt) scarce energy.

I posited that undead humans would be like fungi, and get their energy somehow from being deposited in decaying matter.

I then dismissed the idea that that they would ever have enough energy to be a biped, let alone lift their arms in front of them.

Instead, they would jolt and writhe around in these pools of excrement and other compost, like so many overgrown maggots in a tray.

And as fungi need no light, all this could happen in pitch blackness.

Masses of unthinking, aimless people convulsing around in shit and in darkness.

But not knowing what to do with this (admittedly) dramatic image, I left the story unfinished for another day.

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The image came back to me today when thinking of Brexit.

Somebody on Twitter said the UK had a Zombie government.

But it is not only a Zombie government.

Brexit policy is a Zombie policy.

Furthermore, by reason of the lack of a government majority and the lack of time to do anything other than Brexit, we also have Zombie policy everywhere.

And all this in the framework of Zombie politics, with the two main parties drained of political vitality, going through what motions their lack of energy can muster.

Our whole polity thrashing around, with the slightest approximation to a polity with any vitality.

And like me, with my unfinished short story, nobody knows quite what to do with this extraordinary situation.

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Thank you for reading me on this new(ish) blog, where I am hoping to blog almost daily.

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After the Brexit break, Brexit is still broken

25th April 2019

File:Pandemonium.jpg

(Pandemonium by John Martin, c 1841)

UK politics has resumed after the Easter break, and Brexit is still broken.

The governing party wants a new leader, but like St Augustine, not yet.

The cross party talks appear to be at cross purposes.

The three ends of Brexit – Deal, No Deal, Revocation – loom and each has a plausible pathway.

But we are no nearer making any positive choice for any of the three ends available.

And things may now get worse.

The upcoming European Parliament elections may inject a destabilising agent into the current politics of Brexit.

The performance of the Brexit party, and of other parties, may lead to political decisions being made which otherwise would not be made.

What these decisions may be cannot be forecast with any certainty.

But the impact on Brexit of the European Parliament elections is a known unknown.

Like a disaster or horror movie twenty minutes from an expected end, something new may cause a shock. (And this may mean there has to be a sequel.)

After the Brexit break, Brexit is still broken, and it all may get worse.

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Causes and effects and Brexit

24th April 2019

Battle of Naseby.jpg

When thinking and writing about Brexit I often recall the wise words of the great historian Conrad Russell.

Russell set about, between the mid-1970s and the early-1990s, re-considering and then revising the matter of what led to the English civil war.

His conclusion was, in effect, that we were asking the wrong questions.

His view was that to explain causes you had to consider first effects.

Here, the passage which I keep remembering is in his The Causes of the English Civil War, the printed edition of his Ford Lectures of 1987-88:

“In investigating causes, the first necessity is to match them with effects, and it therefore seems a logical priority to begin by trying to establish the effects for which causes must be found.

“If the effects are wrongly postulated, the causes will be wrong also.

“If we discuss causes without any investigation of effects, we are simply indulging in unverifiable speculation.”

(Sentences separated out for ease of on-screen reading.)

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So what are the “effects” of Brexit which we would need to explain if we are to understand the “causes” of the current predicament.

It would not be enough to explain why there was a referendum in June 2016, as the result was close and could have gone differently.

It would also not be enough to explain why there was a close Leave victory, as that would not explain (by itself) why the UK government then adopted the approach it did, from all other possible approaches.

And it would not be enough to explain why the UK government handled Brexit policy so badly after the referendum, as a great deal also came down to how EU27 responded, and this would need explaining in turn

There would seem to be no one grand cause of Brexit but a complex of different origins, any of which could have been different, and could have ended with different outcomes.

In the years to come, some historians and pundits will posit that whatever outcome we end up was inevitable all along.

(Those historians and pundits currently, however, have not any idea what will happen.)

As one great wit put it: history is a box of tricks we play upon the dead.

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Russell himself contended that the “effects” of the English civil war which needed explaining were: the Bishops’ wars, the English defeat, the failure to reach settlement, the failure to dissolve or prorogue parliament, the choice of sides, the failure to negotiate, and the problems of the king’s diminished majesty.

He averred:

“The removal of any one of these seven things could have prevented the civil war as we know it.”

This was his view, of course, other historians disagree – though few if any serious historians now suggest that there was just one or two big causes of the English civil war.

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The task for those of us who are seeking to explain the extraordinary contemporary phenomenon of Brexit is not to get caught up too much in the excitement of daily events, and also to not readily adopt the easy benefits of hindsight.

In other words: the key question is not only about why and how Brexit has unfolded in the way it has, but to also grasp why and how events did not go differently.

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What is “law and policy”?

23rd April 2019

As this blog is described as a “law and policy” blog, and I describe myself as a commentator on “law and policy”, it may be a good idea to explain what this means (at least what it means to me).

There are many excellent legal commentators out there who will explain the “black letter” law with accuracy and insight.

I sometimes do this, though I am not anywhere as good as they are.

There are also brilliant commentators who will show you what practical law is like in action – most notably the Secret Barrister but many others.

I can try to do this, but again I am nowhere as good as many already doing so.

What I try to do is different from either explaining the law or depicting what happens with courts and clients.

I enjoy looking at legal messes.

In other words: complex situations where there is uncertainty as to either the law (and/)or the outcomes of a legally related process.

I have a particular interest where the impact of the mess is on the wider public, and where the unfolding of the mess takes place in a policy and political context.

Policy takes place in a legal framework, and that legal framework in turn is set by policy choices and priorities. There is a reciprocal relationship between law and policy.

And politics, and everyday life, takes place within this joint law and policy framework.

Usually, this works fine.

But sometimes there is a “disturbance in the force” – situations arise where it looks like the settled framework of law and policy cannot cope.

In a word: crises.

This happened in respect of media law and policy at the time of the Leveson; earlier it happened in respect of the relationship of social media and law, and in respect of the severe problems of libel law.

Long-term followers may recall my commentary and involvement in these matters.

Just before Brexit, I was looking at the “contracting state” and exposed the Saudi prisons contract fiasco of the Ministry of Justice. This is a subject I want to get back to writing about.

And then Brexit came along: the most extraordinary legal and policy mess any of us are likely to ever see.

So my working answer to the question posed above is that “law and policy” describes the practical relationship between, on one hand, law and legal processes (including making legislation and deciding cases) and, on the other hand, the wider public interest (including policy making/implementation/failure and political activity).

I find this relationship fascinating, and that is why I blog and tweet about it (often for free!) and I am looking to write more.

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The cave paintings of Brexit

20th April 2019

I have an inexpert fancy about our prehistoric ancestors.

It is about cave paintings.

These wonderful surviving works deep in caves, painted no doubt by firelight, are often held to be significant and representative: a key to understanding the prehistoric mind.

Perhaps they are.

But I cannot help thinking that there were probably paintings everywhere – on cliffs, on boulders, on trees, on every available surface.

It is just that the ones in the caves are the ones which happened to survive to our day.

All the others were washed off, or otherwise lost.

And in their time, the sort of person who went deep underground to paint by firelight was probably as unrepresentative as an eccentric person of our own day who would go off and do the same.

Similarly, one suspects early civilizations were not obsessed by pottery, no matter how many vases and bowls survive.

In other words: one should try not be biased by available sources.

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Anyone writing about Brexit encounters the problem of the lack of reliable information from the usual sources.

The Westminster lobby – where there are many fine journalists – has only been as good as the information available to Westminster politicians and Whitehall briefers.

And because much of the process to date has been driven by Brussels, there has not been that much information available to the lobby to report.

Government press offices have been, in my view, of little use and the number of genuinely helpful Brexit documents published by Whitehall can be counted on one’s fingers.

And so the two usual sources of information for those following British politics – the political press and the government – have been relatively dry.

A Brexit historian with access only to the front parts of UK newspapers and to government publications would be like the classical historian convinced that the Romans were pre-occupied with crockery.

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But there has been a great deal of useful detailed information published about Brexit, it has just not come from the traditional sources for British politics.

The European Union has published (in English!) a comprehensive set of reliable documents.

The Brussels correspondents of the British press have all been far more instructive to follow than their Westminster colleagues.

Irish journalists have given us brilliant insights into the issues which have affected and now stalled the Brexit process.

Parliamentary committees have been far more informative – especially in publishing evidence and in their witness sessions – than any front benchers, and all this is available on the parliamentary websites.

Similar praise can be made of the House of Commons library and their in-depth, authoritative and impartial reports on Brexit matters.

Expert bodies such as the Institute for Government and the Centre for European Reform have been magnificent in producing detailed commentary and reports.

And on social media, a host of genuine experts – on trade, on parliaments, on the EU, on the civil service – have emerged to inform and explain in ways which more established newspaper pundits would not be able to do so.

Brexit is a complex and many ways novel phenomenon.

And so the sources of good information have been also been (in many ways) new.

There is good information out there, just not in the traditional places.

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Brexit exceptionalism

19th April 2019

One common accusation in the debates about Brexit is that of “exceptionalism”.

This often happens when there is a sense that the person you (think you) disagree with is asserting something arrogant or special about the UK or Great Britain or England.

“That is British [or English] exceptionalism,” will come the charge, fairly or unfairly.

But for those of us caught up in the dramatics of Brexit, and who are seeking to understand and explain it, there is another potential peril.

Brexit exceptionalism.

This is not a surprise: as Brexit unfolds in all its spectacular messiness, it is natural to assume it is unique.

And there are certainly parts of it which are novel.

But as a fascinating post at the OUP sets out, however, there are many examples of states leaving intergovernmental organisations and with serious consequences.

Departures are not unusual, and nor are painful departures with profound consequences.

Over time, commentators and historians will no doubt describe Brexit in contexts and perspectives which will counter our contemporaneous view that this is all about us.

But.

The EU does have special qualities: it is not just an intergovernmental organisation.

The EU provides for a new legal order which provides rights and obligations which are “vertical” and so attach themselves on individuals and companies within the member states.

The member state, however, retains ultimate sovereignty and also autonomy in many areas of law and policy.

There is no other international organisation which does this: the nearest analogue would probably be states fully within a federal system (for example, the USA or Germany).

A state seeking to depart such a new legal order will necessarily have unprecedented legal and other problems.

That is because the international organisation being quitted will itself have been unprecedented.

And so Brexit is, to a significant extent, exceptional.

The challenge for commentators and historians will be to work out what can be explained (away) by context and perspective, and to describe and account for what about this mess has never been seen before.

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The three ends of Brexit

18th April 2019

There are only three ways which Brexit – by which I mean the departure of the UK from the EU following the Article 50 notification of 29 March 2017 – can end.

These are for the UK to leave with a withdrawal agreement under Article 50, or to leave without such a withdrawal agreement, or to revoke the notification.

In short: Deal, No Deal, Revocation.

There are ways and means to these destinations: extensions, referendums, general elections, and so on.

But even perpetual extensions would only be putting-off one of the three ends, not an end in itself.

And there are plausible paths to each of the ends.

(A politician once said that he wanted all students to get “above average” examination results. In a similar manner, so plausible is each of these ends, one could say each had a higher than 50:50 chance.)

As of today, nobody knows which of these three ways Brexit can end.

And doing nothing is no help: that just makes No Deal the end come 31st October 2019.

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