Ultra Virus – the constitutionality and legality of the Coronavirus Regulations

8th April 2020

The Coronavirus Regulations are the law of the land, and as they are the law of the land they must be obeyed, and the reason we have emergency laws is because of emergencies, and this is an emergency.

That sentence is there because there is a sense among some legal commentators that they cannot either comment critically on these regulations or even comment at all, lest some idiot takes the criticism to mean that the laws should not be obeyed.

In my view, however, such quietism and self-censorship may be more irresponsible than any constructive criticism.

At a time of emergency, the scrutiny of emergency laws is vital.

The law still needs to be obeyed when it is in force, even if there are processes for challenging it.

And so it is on this basis that this post sets out the constitutional and legal issues of the Regulations, further to previous posts on this blog (for example here and here).

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One way of critically approaching the Regulations is to look carefully at whether they accord with the parent legislation.

This is because the Regulations are secondary legislation – in this case, a statutory instrument – that only have legal effect (“vires”) to the extent that they are within the scope of the primary legislation, in this case, the Public Health Act 1984.

(Note that although the Act itself was passed in 1984, it has been heavily amended since, and so the relevant provisions for this discussion do not necessarily date back to 1984.)

At the august and influential UK Constitutional Law Blog, the outstanding legal scholar Jeff King has in two posts (here and here) setting out why he sees the Regulations as within the scope of the law.

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Others looking at the detail of the parent legislation take a different view, and they aver that the Regulations may be outside the scope of the parent Act (see here and here).

And Lord Anderson QC, the former independent reviewer of terrorism legislation and an authority on emergency legislation, has also set out his doubts, and concludes (with elegant and careful wording):

“In summary, the impact on personal liberty in Regulation 6 goes right up to the limit of what is permitted under its parent statute, and arguably beyond. An ultra vires challenge would attract strong arguments in both directions. Ultimately, however, a court which is minded to uphold it as valid has, as it seems to me, a plausible legal argument for doing so.”

In other words: there are plausible grounds that a court may quash parts of the Regulations.

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As the head of this post sets out, the Regulations are the law of the land and must be obeyed.

The Regulations (or any part of them) would, however, cease to be the law of the land if a court of competent jurisdiction quashed the Regulations (or any part of them).

The possibility of this does not mean that, in the meantime, the laws cease to have effect – it means that there is a possibility that a court may one day take a different view.

And this is the case with any secondary legislation (and with any government action or inaction).

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So if there is scope for questioning the legality of the Regulations, what can be usefully said about the constitutionality of the Regulations?

In a sense this is a difficult area, as there is no codified constitution in the United Kingdom and to say something is “unconstitutional” is often not to say anything meaningful at all.

But there is a worrying constitutional feature about the Regulations which the approaches set out above, which focus on statutory construction and interpretation, to an extent overlook.

The Regulations have not had any parliamentary scrutiny or sanction.

They were given effect after Parliament was in recess.

The Regulations restrict or remove fundamental rights, including freedom of movement and freedom of association.

The Regulations create wide-ranging criminal offences.

In the two Miller cases, the Supreme Court ruled against two attempts by the United Kingdom government to do drastic things by ministerial fiat – to take the United Kingdom out of the European Union and to close down parliament for five weeks without any reasonable basis.

In both cases the Supreme Court, rightly, decided that something that fundamental should be decided and endorsed by parliament.

In the case of the Regulations, the government could have included the provisions in the Coronavirus Act, but chose not to do so.

And the government could (and, in my view, should) have used the Civil Contingencies Act, which has several built in safeguards and a supervision regime, but again chose not to do so.

Instead, the government chose to use the Public Health Act which even commentators who say that the Regulations are lawful accept is a bit of a shoehorn.

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My view is that they very decision to use the Public Health Act, rather than primary legislation (which parliament would vote on) or the Civil Contingencies Act (which gives parliament a defined supervisory role) is a decision which can be questioned both in terms of its constitutional propriety and indeed its accordance with public law principles.

The Regulations are to be reviewed shortly, and this blog yesterday put forward some modest proposals for taking the illiberal edge off from the provisions.

But there is a more fundamental question of ensuring that legislation that removes or restricts fundamental freedoms has parliamentary (and thereby democratic) approval.

Law not only should have authority – but ultimately also legitimacy.

The Regulations convert almost all normal social behaviour into anti-social behaviour, punishable as criminal offences.

Such upheavals should have democratic sanction, just as any other upheaval like leaving the European Union or closing down parliament.

And it is not “irresponsible” to point this out – indeed, it seems to me irresponsible to pretend this is not of any urgent concern.

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Thinking about emergency legislation

22nd March 2020

The current coronavirus pandemic is a public health emergency and, as with any emergency, there can be the need for emergency legislation.

By definition, there is not often the need for emergency legislation (or, at least, there should not be), and so emergency legislation is not something that often needs to be considered.

Now in the United Kingdom the government is bringing forward emergency legislation.

There is a bill before parliament that will be enacted in days.

And yesterday there was a statutory instrument issued under public health legislation.

Both instruments raise particular issues, but rather than dealing with the detail of the provisions, this post asks what can be usefully said about emergency legislation generally.

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Emergency legislation is, of itself, a good thing.

This may seem trite and obvious, but the existence of emergency legislation means that those responsible for dealing with an emergency are doing so in accordance with the rule of law.

Emergency legislation means that even though there are exceptional and dangerous challenges, the government is still wanting to place their actions on a lawful basis.

And by doing so, it means in turn that in principle those adversely affected by the legislation have (or should have) the ability to challenge decisions made under it – though in practice this may well be difficult.

There may be an emergency, but (at least in theory) the rule of law is still in place.

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Emergency legislation, however, should be exceptional.

This means that once the emergency is over then the legislation should lapse.

It also means that the legislation should not be used for purposes other than dealing with the emergency.

A genuine fear is that emergency legislation, once enacted, is too convenient for a government to then let go.

And for the executive-minded, any emergency – whether regarding terrorism, public health or anything else – can be the pretext for an executive power grab.

Never let a good crisis go to waste, as the saying goes.

But the prospect that the emergency powers can be abused is not a reason for the powers not to granted for their proper purpose.

(The “thin end of the wedge” argument is often a substitute for thought.)

Emergency powers need to be time-limited and subject to judicial review and democratic supervision.

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Most importantly, emergency legislation also has to be useful.

All because there is an emergency, it does not necessarily follow there is a need for emergency legislation.

The executive already has wide legal powers.

There are already many public health and related statutes.

There is always the risk of a “something must be done” sentiment meaning that emergency legislation is enacted just because something needs to be seen to be done – like an assertion of political virility.

Every piece of emergency legislation should make a difference and be relevant to the emergency faced, as well as going no further than required or lasting longer than is needed.

In other words: emergency legislation should always be necessary and proportionate.

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In technical terms, much emergency legislation falls into two categories:

– first, to provide a legal basis for the government to do a particular thing that it would otherwise not be able to do at law; and

– second, to remove a legal restriction that would otherwise mean the government cannot do a particular thing at law. 

In both situations, the legal status quo may be there for a reason – that parliament and the courts have provided for settled legal arrangements for what can and cannot happen in usual, happier, non-emergency times.

Emergency legislation is thereby a sudden interruption to these settled legal arrangements, for a specific urgent reason.

So when you look at a piece of legislation, you can see clauses that suspend some legal powers and clauses that create other legal powers.

But in both cases the three questions to be asked are the same:

– is that change necessary for the purpose of the particular emergency?

– does that change go further (and last longer) than necessary for this particular emergency?

– what are the safeguards against abuse?

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That the government is bringing forward emergency legislation to deal with an emergency is to be welcomed – for that is why emergency laws exist or should exist.

And a government seeking to enact such legislation should have nothing to fear from anxious scrutiny.

But if there are genuine concerns that the laws are not necessary, or go further or last longer than required, or do not have safeguards against abuse, then those concerns should not be shouted down with “don’t you know there is a virus (or a war) on”.

Emergency legislation is for emergencies only – and proper scrutiny, like the rule of law, should never be suspended.

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Cummings and Commentary

6th March 2020

When something new happens, there is often a lag in finding the right words to describe it or in forming the right thoughts to think about it.

And so we make do with old words and concepts.

Take for example the radical approach to government of the prime ministerial adviser Dominic Cummings. 

One usual approach to reporting on Westminster is to focus on personalities and briefings: the lobby system.

Another is to treat parliament as a pantomime: the tradition of parliamentary sketches.

The lobby system has its merits, and many lobby journalists are first class.

And when there is drama or comedy, the sketches can be outstandingly insightful as well as funny.

But Brexit has brought many new things, and one of the new things it has brought is the appointment of Dominic Cummings to a position of political power.

And Cummings’ approach to power, and the use to be made of it, does not lend itself fully to either the lobby system or the sketch writers. 

So we have had coverage of Cummings which is based on briefings, often taking the estimation of him as a “genius” and a “big brain” at face value.

There has also been a catalogue of his various tactical failings and mishaps which one can regard as all being “Classic Dom”.

There are elements of truth in all this, though Cummings is not a genius (as far as one can tell), he just thinks very differently to many in the political and media world, and his many mistakes and misdirections are part of a more interesting vision of how to gain and use power.

So Cummings, like Brexit itself, is showing the weaknesses of the old ways of covering politics.

Yet for every action, of course, there tends to be a reaction – and some journalists and commentators are combining fine political reporting with a grasp of the policy and structural issues that inform the ongoing struggles for power.

One of these pundits is Harry Lambert (who I do not know) who works at the New Statesman – and his piece this week on Cummings and what is happening (and not happening) in Downing Street is a fascinating read.

There are others – and the quality of analysis and reporting prompted by Brexit and its aftermath(s) is one of the good things to have come out of the whole botched enterprise.

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Brexit: the end of the beginning

2nd March 2020

If Brexit were a boxset, we are now about the start of season two.

The first season, of course, had a story of its own: a referendum that did not need to be held, leading to a result that was not expected (or anticipated), resulting in a departure on withdrawal terms few positively wanted.

(It is difficult to think that we are still within what would have been the five-year term of the 2015 parliament, where David Cameron had a good Commons majority elected on a manifesto that included a commitment that the United Kingdom be at the heart of the European Union single market.)

Now the United Kingdom is outside the European Union (let alone the single market) as a matter of law, even if the terms of the withdrawal agreement will make it a Brexit in name only until (at least) the end of this year.

Certain elements of the withdrawal agreement – on citizenship, financial contributions, and on a range of technical matters – will endure beyond the transition period.  

Accordingly the threat of “no deal” at the end of this transition period is not as drastic as it would have been had there been no deal for the departure itself.

The scope of issues to be agreed (or at least capable of being agreed) is narrower than before the withdrawal agreement.

What is now to be negotiated (or not) is the future relationship beyond the end of the transition agreement.

One way of following this is by the heady heated excitement of political commentary, where one can form two different views a day (or an hour, if you are on Twitter) on any relevant issue.

And the politics of Brexit are crucial – it is only by understanding the politics of Brexit that you will understand why otherwise incomprehensible decisions are taken and daft unsustainable positions adopted.

But politics is not the only way of understanding Brexit – and a politics-only approach is itself limited and will miss many things.

For along with the pomp and propaganda, there is process.

And the process is about arriving (if possible) at an agreed text.

And a process which is intended to end with an agreed text tends, if the parties are taking it seriously, with a number of preliminary texts.

And it is by having regard to the texts and the process that one can (often) understand where Brexit is going and not going.

Again – form and structure are not everything – but they can provide the situations against which politicians and the media then react.

The two key texts for this negotiation are the negotiation guidelines of the European Union and the United Kingdom’s Command Paper on the those negotiations.

Of course, these are opening positions – but this does not mean they are trivial and can be dismissed.

On the European Union side especially, thought will have gone into what they want to achieve in the final text, and the guidelines will have been compiled by thinking backwards from what they want to achieve with that final text.

And in respect of the withdrawal agreement, early texts of the European Union can be seen as leading directly to final positions.

Remember: this is not the European Union’s first rodeo: they have the valuable experience of negotiations over Grexit, and of association agreements and free trade agreements.

This does not mean they are always right, or that that they will prevail, but to the extent that experience provides an advantage, the European Union will have the benefit.

Against this process-minded approach, there will be the temptation for those supporting the United Kingdom government to adopt again the bluster and silliness that was a feature of the exit negotiations.

Given the membership of the cabinet, that is a real risk.

So it is a relief that the United Kingdom’s Command Paper on the upcoming negotiations is a serious and not a silly document.

And with the two parties prepared (if unevenly) for the negotiations, and as both parties want an agreement (if possible), the second season of the Brexit boxset can begin.

It may well be that the second season will be yet more exciting (and scary) then the first season – but at least we (and the parties) will be ware of how the first season went.

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The Executive Power Project: the extraordinary resignation of a senior civil servant

29th February 2020

What this blog calls the “Executive Power Project” – in affectionate mockery of the so-called “Judicial Power Project” – is not just about attacks on an independent judiciary.

The Executive Power Project is about all the current concerted attacks on those elements of the state that check and balance executive power.

And so it is as much about the attacks on the impartial civil service as it is about the assault on the courts.

This morning we have had a further manifestation of the Executive Power Project – the resignation of the senior civil servant at the Home Office, Sir Philip Rutnam.

His piece to camera announcing his resignation is extraordinary, and should be watched in full (and it can be read here).

(From a defamation law perspective, it is striking how carefully drafted this statement is – the “I do not believe her” stands out especially – and if Patel countersues she will struggle to do on this wording.)

It is a measure of how rotten this government is that it can make a senior home office civil servant seem sympathetic, even a hero.

The Home Office routinely is brutal and excessive in the administration of its duties.

But what Rutnam has done today is admirable: he could have, as he alludes, taken the payout and signed a non-disclosure agreement.

Instead he has made the matter public and, he says, will sue to uphold his rights at a public tribunal.

In the days to come, his personal reputation will be trashed – just as attempts to do so when Sir Ivan Rogers resigned – and he appears to have factored that into his decision.

But beyond that knee-jerk trashing (which will be facilitated by the very free press that is also a target of the Executive Power Project) there is the issue of the extent to which ministers are now placing civil servants and diplomats in untenable positions.

For this resignation to be so public, and for the the follow-on suit to be just as public, means that the minister-official tensions are now hardening into contradictions.

Even in these strange political times, this is an important and worrying event.

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The Executive Power Project

28th February 2020

A blog, like Winston Churchill’s puddings, should have a theme.

Otherwise there is the risk that a blog drifts or (worse or better, depending on one’s view) is not updated at all.

This blog will now, I think, have two themes.

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The first is a detailed – almost forensic – look at key documents relating to law and policy.

This is because independent blogging (with the ability to freely link to sources, non-irksome comments, and with no word counts) is a natural medium for such exercises.

And I have started towards this by identifying two key Brexit texts which will be examined closely in post to come (to which you can add a third and fourth, the United Kingdom’s Command Paper on the upcoming negotiations and this speech by Michel Barnier).

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The second is what I will call (with affectionate mockery of the “Judicial Power Project”) the “Executive Power Project”.

My column at Prospect magazine this month sets out one of my general views on this: that currently there is a period of relative judicial lack-of-activism, and that behind the current “something must be done about the judges” moral panic is nothing more than a turnip-ghost.

The revolt against the judges in the United States and Poland, and the United Kingdom, and elsewhere, is little or nothing to do with actual cases and judgments.

It is instead about removing or discrediting those independent checks and balances which prevent those with executive power from easily getting their way.

As such the attacks on the independent judiciary need to be seen as akin to the attacks on the impartial civil service and and diplomatic service, the free press, public service broadcasting, and those parts of the legislature beyond the executive’s easy grasp.

The one uniting factor in all this is an attempt by those currently with executive power to remove or discredit anything that can counter them.

Another part of this is the invocation of heady snappy legitimising phrases (such as the “Will of the People”, “Taking Back Control”, “Get Brexit Done” and “Restoring Sovereignty”) that are intended to over-ride any opposition or concerns.

Here one is reminded of the words attributed to Madame Roland as she was led to the guillotine, “O Liberté, que de crimes on commet en ton nom!” (O Liberty, how many crimes are committed in thy name!) or Stephen Dedalus’s wry “I fear those big words which make us so unhappy”.

For the authoritarian, phrases and concepts that confer legitimacy (whether leftist, rightist, centrist or anything else) tend not to be the reason for what they do but their excuse and pretext.

And the language of populism suits the authoritarian perfectly: for who can be against the will of the people?

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So, rather than commenting on anything and everything (and thereby nothing in particular), this blog will tend to focus on these two themes.

It may not make much (or any) difference but it seems a good thing to do anyway.

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The moral hazard of the United Kingdom casually breaching the Political Declaration

27th February 2020

The Political Declaration is a formal, negotiated document agreed between the United Kingdom and the European Union.

You can see the document here, hosted on the United Kingdom’s own website – all 31 pages of detailed prose, over 141 numbered paragraphs.

It is a serious document, to be taken seriously.

The United Kingdom government says itself on its website:

“The new Political Declaration sets out the framework for the future relationship between the European Union and the United Kingdom and reflects the Government’s ambition to conclude an ambitious, broad, deep and flexible partnership across trade and economic cooperation with the EU, with a free trade agreement with the EU at its core, alongside agreements on security and other areas of cooperation.”

The Political Declaration, however, is not legally binding.

And there is now a suggestion that the United Kingdom government can and should disregard the commitments set out in the Political Declaration.

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There have been, broadly, two responses to the United Kingdom government apparent desire to breach the terms of the Political Declaration.

The first is first is to say that as the Political Declaration is not binding then it does not matter if it is breached, casually or otherwise.

The second is to say that the Political Declaration is a formal and negotiated document, and that it does matter if it is breached.

These two views appear to be be in conflict to the point of contradiction.  

And if they are in conflict then the question becomes which is the better view.

The two responses are not actually in conflict as they are dealing with different things: there is therefore no hard contradiction.

But the better view is that the Political Declaration should be taken seriously – even if it is not binding.

Indeed, that the Political Declaration is not binding makes it more important that the government takes it seriously.

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What does it mean for a formal commitment to be “binding”?

Not all formally negotiated documents are (legally) “binding” – so what is it which gives them this quality.

In general terms “binding” means that there are formal sanctions available in the event of the breach.

These sanctions may not necessarily require the party in breach to specifically perform the commitment.

The sanction may be that the other party can terminate the agreement, or that there is some remedy or benefit for the other party.

But whatever the sanction, the notion is that the agreed commitment can be enforced against the party in breach so that the other party does not suffer the disadvantage of the breach.

Making a commitment (legally) binding is one way of showing that the party undertaking the commitment is being serious.

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In foreign affairs and international politics, however, a preoccupation with whether a formal serious commitment is “binding” or not is in good part a legalistic red herring.

A serious formal commitment is intended to be taken seriously and formally: that is its very point.

And this is regardless of whether it is technically “binding”.

Resiling from an obligation on the technicality that it is not legally binding is not to take such a commitment seriously.

(A useful comparator are the United Kingdom’s pre-Brexit financial commitments to the European Union – there were question marks over whether they were legally binding – how could they be litigated? which court? – but this was not the point: the United Kingdom had made a commitment and was expected to stick to it.)

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All this said, there may be a good reason for a country to depart from a formal serious undertaking.

And both the United Kingdom and the European Union knew that the Political Declaration was not (legally) enforceable.

Both sides accepted it could and would be departed from, in certain circumstances.

The crucial question would be: how and on what basis?

And in this way, the Political Declaration is, in effect, a test for a post-Brexit United Kingdom.

How seriously does the United Kingdom take non-binding commitments and assurances?

Do the words matter?

The less seriously the United Kingdom takes non-binding commitments, the stronger the signal to the European Union that anything important needs to be tied down in strict legal provisions.

This is why the daft posturing of the United Kingdom about casually breaking the the Political Declaration matters.

It matters as much, if not more, than if the Political Declaration was “binding”.

In effect: the Unite Kingdom is sending a signal of “don’t trust us, insist on strict legal obligations”.

And this signal is not just being sent to European Union – the signal is now being broadcast to every nation in world, to all the countries where, post-Brexit, United Kingdom may want to have “trade agreements”.

The United Kingdom may think it is saying to EU “screw you” but in fact it is telling the world “screw us”.

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Brexit was an opportunity for the United Kingdom to show the world how serious it was about having an independent trade policy.

Instead, the United Kingdom keeps showing the world how lacking in seriousness it is in entering international commitments

One day this lesson of moral hazard will be learned – if not by current ministers then it will be understood by future ones.

But that may be too late, as something important will already have been lost, and it will be hard to regain.

The United Kingdom government is still not taking Brexit seriously.

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Two new texts on Brexit

26th February 2020

There are two new important texts of interest to those following Brexit.

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The first are the latest negotiation guidelines of the European Union.

As with the lead-up to the withdrawal agreement, the detail of the European Union’s published position will probably be the best single source for understanding both what will happen next and what the final agreement will look like.

This is not to say that is a complete source: politics and circumstances will make a difference, and there is – as with the exit arrangements – a non-trivial risk of no deal.

But even taking account of such contingencies, the directives are the best place to start.

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The other text is a speech by the United Kingdom negotiator David Frost.

There is a lot in the speech to dismiss – but there are some fascinating passages too.

And the overall importance of the speech is perhaps not  in any of its components but in the very fact of its existence: a serious and no doubt sincere attempt by an official to set out the post-Brexit vision of the United Kingdom government.

This blog will look carefully at both texts in the next few days, as both documents reward careful attention.

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A challenge for those in favour of the United Kingdom joining the European Union

6th February 2020

Here is a challenge for those who support the United Kingdom joining the European Union.

The challenge is: can you forget that the United Kingdom was ever a member?

By this I mean: can you make out the case for the United Kingdom joining the European Union without reference to the fact that the United Kingdom was a member?

Can the case be made out in contemporary, modern terms, as if the United Kingdom had never been a member and (without the United Kingdom’s internal influence from 1973 to 2020) the European Union had evolved to its current state?

This would require putting side arguments about the rights and wrongs of the 2016 referendum, or about the merits or otherwise of various government policies and personnel since the referendum.

In essence: if the United Kingdom had never been a member of the European Union (and its predecessor forms) what would be the case for joining now?

The first reason for posing this challenge is simple: it is unlikely, if not impossible, that (re-)joining will be based on addressing past grievances of Remainers.

There has to be a positive case.

The second reason is to see if there are arguments for joining which cannot also be met by an Association Agreement.

Association Agreements can be in many forms, and in principle there is no reason why one cannot be the basis of a relationship so close as to be practically indistinguishable from membership.

So: what is the positive case for the United Kingdom joining today’s European Union – and is that a case that only full membership can meet?

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A tale of two texts – what the United Kingdom should have published yesterday but did not

4th February 2020

Yesterday was the first working day since the United Kingdom formally left the European Union.

The European Union chief negotiator produced draft negotiation guidelines for the next stage of the Brexit process: that is the future relationship agreement between the United Kingdom and the European Union.

You can read the draft here, thirty-three pages of detailed guidelines, which if adopted will shape the next stage of the negotiations.

Back in March-April 2017, after the Article 50 notification, a similar set of guidelines shaped how the European Union approached – and then prevailed in – the withdrawal agreement negotiations.

The European Union negotiators put thought into and prepare for such negotiations: they understand process.

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Yesterday, the United Kingdom government could have published a similar document: say, a draft negotiation document for the Prime Minister to put before Parliament for approval.

There would be no problem with the Prime Minister doing this: he has had the civil service machine at his disposal since summer – plenty of time for the government to know what it wants from the next stage of negotiations, especially as he wants the agreement in place by the end of this year.

And there would be no risk for the Prime Minister in doing this either: unlike his predecessor, he has a majority in the House of Commons and so he could be confident of any such guidelines getting parliamentary approval.

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But the United Kingdom government did not produce similar guidelines.

There was, it must be admitted, a written statement, but it was in such a high-level wish-list form that it would barely qualify as heads of terms for the upcoming negotiation.

The failure of the United Kingdom government to publish a document as detailed as that of the European Union has one obvious explanation, given what happened (and did not happen) between 2016 and 2020.

That explanation is not that the United Kingdom government has some cunning plan that it is keeping close to its chest.

The obvious explanation for the United Kingdom government not publishing a document as detailed as that of the European Union is that it has (currently) no proposals as detailed as those of the European Union.

As in 2016-2020, the United Kingdom does not have a clue in practical or detailed terms what to do next.

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There was, however, a significant text published yesterday – the first working day of Brexit – by the United Kingdom government.

This was the tub-thumping speech of the Prime Minister about free trade.

A speech that did not mention Brexit once.

A speech so full of cod-economics and cod-history that it would make an A-level student blush.

A speech that was an exercise in whimsical nostalgia, rich in superficial cleverness.

A speech you would expect from the eternal essay-crisis examination-crammers of this witless winging-it government.

This was the first blast of the United Kingdom government’s trumpet on its first working day of supposed liberation.

There could have been no more telling contrast to the detailed European Union proposals published the same day.

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Any sensible person wants these negotiations to go well, and as a United Kingdom citizen and resident I want these negotiations to go well for the United Kingdom.

Nothing here is a cheer for the European Union, who are now to us as much of a “third” entity as we are to them.

But one does not do well in negotiations (or any bilateral exercise) by not understanding counter parties or opponents.

The United Kingdom government should be meeting detail with detail, process with process.

There is certainly no excuse not to realise this, given the hard experience of the exit negotiations.

And the United Kingdom government can do detail and process when it wants to do: after all, the European Union’s single market is itself a triumph of British pragmatism and planning.

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At some point, it will become painfully obvious that yet more flag waving and bombast will not be enough.

(And anyone with a decent grasp of history will tell you that flag waving and bombast was certainly not enough in those supposedly glorious Elizabethan, Victorian and World War II times beloved of Brexiteers: drudgery and attention to detail always mattered.)

The two texts of the first working day of Brexit – the European Union detailed proposals and the Prime Minister’s Greenwich speech – are the first two moves for the next phase.

And one shows serious preparation for what happens next, and the other shows none at all.

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