Category: United Kingdom Law and Policy

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

  28th August 2021

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

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

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

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

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

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

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

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

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

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

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

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

But there does not seem much point.

What a pointless thing to have done.

**

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The folly of diverging from the GDPR just because we can

26th August 2021

Like a dog that caught the car, the United Kingdom government is wondering what to do with Brexit.

Today’s offering, reported in the Telegraph is overhauling or replacing or something to do with GDPR – the European Union’s detailed data protection regime.

The flavour of the suggestion is in these tweets:

*

The proposal has the usual signs of superficial thinking, with the ‘ending red tape’ and ‘row with Brussels’ lines that are the substitute for any serious policy thought.

In fact, the rows will not be with Brussels – the European Union and its businesses will be at ease with the United Kingdom erecting yet another non-tariff barrier against the interests of British businesses.

The rows instead will be with those British businesses, which will now have two lots of red tape to negotiate instead of one.

This is so bleedingly obvious that it really should not need typing out.

None of this is to say that the GDPR is perfect legislation – it certainly is not.

But compliance with one technical and complicated regime is onerous enough – multiplying such regimes just because we can is folly.

*

Ministers and their political and media supporters will clap and cheer at this exercise in nose-cutting in spite of a face.

The European Union, like bemused household cats, will just stare at the spectacle.

It is all rather silly, and rather depressing.

*

The United Kingdom’s digital economy will not so much turbocharged but torpedoed.

**

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

25th August 2021

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

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

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

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

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

And a fourth is by means of rhetoric.

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

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

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

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

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

*

Brexit.

COVID-19.

Afghanistan.

*

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

What was required was not hindsight but foresight.

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

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

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

‘…with the benefit of hindsight’.

*

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

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

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

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

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

And this will not only be obvious with…

…well, hindsight.

**

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The unwise tweeting of the Home Office – an exercise in the misuse of official communications

23rd August 2021

Our story begins with this article on the Guardian website, published on Saturday evening.

The first part of the piece comprises a report of the following eight things about Afghan child refugees:

1. child refugees from Afghanistan are being held by the home office in hotels for weeks on end without shoes, spare clothes, money or access to healthcare;

2. one unaccompanied Afghan minor who arrived in the UK a month ago said they had also been given no legal advice or interpreter, their asylum claim had yet to be processed and they had no idea where they were or even where to find the nearest mosque;

3. despite repeated offers from a number of specialist charities, including Barnardo’s, to enter the hotels and assess the children, the home office has so far turned them down;

4. a Muslim community group that offered to supply child refugees in a hotel near Brighton with halal food was turned away despite complaints from some youngsters they were only being offered “boiled vegetables”;

5. there is a claim that children are being put into taxis and driven across the country with no escort or child protection system in place;

6. a child is said to have been driven by taxi more than 250 miles from the south coast to Yorkshire without an escort;

7. one hotel near Brighton is said to hold 70 minors;

8. a five-year-old Afghan refugee fell to his death from a ninth-floor Sheffield hotel window, days after arriving in the UK, and asylum seekers were previously removed from the hotel because it was unfit for them to stay in.

The remainder of the piece mainly consists of quotes from interested parties and the home office, and some background information.

But the the nub of the article comes from the above (eight) pieces of news, of which the first five are stated as facts and the other three are framed as claims.

Presumably that is because the first five were verified and sourced more than the final three.

On the face of it, this was a good strong news report about a worrying situation, resting on particularised examples as well as third party statements.

The sort of news item that not only would not be easily dismissed but should not be dismissed.

An article to be taken seriously.

*

But.

Late on Saturday night, the home office press office chose not to take the article seriously.

The home office did not say that it would look carefully at the worrying report and its numerous examples.

No, the home office chose to be silly instead.

The official home office account sent this tweet.

Just looking at the first sentence: the home office assert the article does not only contains ‘inaccuracies’ and ‘claims which are untrue’ (and what is the difference?) but also that the article is ‘littered’ with such ‘inaccuracies’ and ‘claims which are untrue’.

Like many such weak public relations statements, it claims that there are many mistakes in a hard-hitting piece but it does not specify them.

In particular, nothing is said directly about any of the key eight things reported about Afghan children refugees.

The follow-on tweets from the home office were also in general terms.

Nothing in any of these tweets met the detailed news reported.

It was a broad-brush denial that, in effect, denied nothing.

It was also a wrongful – indeed disgraceful – use of a government social media account.

This was not official information nor an informed precise rebuttal.

The author of the piece set out his response:

Then another home affairs journalist shared her experience from January following this home office tweet:

*

The home office press office is perhaps clapping and cheering at such misdirection and misinformation.

Perhaps the press officers think themselves very clever.

But a moment’s thought should make them realise that this is being very foolish.

Credibility in official statements can be lost.

And once that credibility is lost then there can be serious political and social implications.

*

If a detailed press article is incorrect then, of course, a government department can seek to correct it – but the correction should be as detailed as the report.

Else the official objection reeks of bluster and bombast – and it has no place as an official publication.

The home office has many faults – some of which are depressingly familiar – but in its desire to manage bad news, it should avoid such disgraceful late night tweets.

The currency of official information can be debased, just like any other currency.

A wise home office should realise this.

**

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Why ministerial resignations and sackings are often a substitute for genuine accountability for policy failures

22nd August 2021

A couple of days ago the post on this blog was about Dominic Raab and ministerial resignations.

In that post I averred that this clamour for a ministerial resignation tells us three things: that the minister had enemies within government (else the incriminating material would not be available); that the press was not protecting the minister; and that there was sufficient interest from the public for the issue to be subject of so many news reports.

The one thing the clamour did not tell us – at least directly – was whether the minister had actually done anything wrong.

And ministers get things wrong all the time – it is just that the relevant material is not disclosed and/or the press do not join the attack and/or few outside Westminster would be interested.

Accordingly, a sustained clamour for a ministerial resignation will always tend to tell you more about political weakness rather than policy failure.

In essence: a political scandal is a function of having political or media enemies and not of policy incompetence.

Now, I want to develop this point to say that even when there is a resignation, this is not an especially practical form of accountability.

The failures that may have prompted the resignation will usually still be there – and the catharsis of the resignation may change the political mood, but may not mean any substantial change, still less redress or compensation for those affected.

The minister who has resigned often does not have any long-term adverse effects to their political career – and after a suitable period, they will often resume their senior political roles – sometimes again and again.

In this way, a ministerial resignation is too often not an exercise in accountability – but a substitute for it.

The resignations – which now can have a ritualistic quality – are what the political and media classes do to pretend to themselves and others that there is accountability within our political system.

‘there are calls on [x] to resign’

‘there is increasing pressure on [x] to resign’

‘[x] has resigned’

[…]

‘[x] returns to office’

And nothing else changes.

*

More effective accountability would be for [x] to stay in office, and account for failures and the reasons for the failures on the floor of the house of commons and before select committees, to appear before relevant public inquiries, and to co-operate with bodies such as the national audit office.

That is for ministers to own their mistakes and to, well, account for them – for that is the very meaning of that word: accountability.

But we get none of this, and we get cosmetic personnel changes instead.

*

Much the same as the above can also be said for ministerial sackings.

Again, this is often political theatre – even soap opera.

Little if anything actually changes with a sacking, little is accounted for.

Some political drama, perhaps, that is forgotten in a day or two.

*

Dismissals and resignations are, of course, part of any system of accountability – as resorts and sanctions.

But they are not the entirety of any meaningful form of political accountability.

For meaningful political accountability is the last thing any politician actually wants.

**

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Decaf Nation – a passing anecdote about Brexit

21st August 2021

Someone somewhere – I think P. D. James – says that no coffee tastes as good as it smells.

And given that most people drink coffee not for the taste but for the (perceived) caffeine kick, some people do not seem to see the point of decaffeinated coffee.

(Such people include me, for what it is worth.)

But some people do, and it appears that they will currently be disappointed if they go into a chain of well-known coffee shops.

For in those coffee shops there is no decaffeinated coffee.

I established this in two branches of the same well-known coffee shop near where I live – and not with loaded questions but with a general ‘how come’ when told they had none.

Both times the answer was: Brexit.

(The first mention was prompted by overhearing someone else being told there was no decaf, the second was prompted by me inquiring generally.)

The second person who told me this I did not know, but the first – the manager of the most local branch – is as undramatic and unpolitical person as you can imagine.

I had – and have – no idea if this is the true reason for the lack of stock.

Perhaps it is a coffee shop urban legend.

Perhaps it is the desperate excuse of a desperate area manager.

But it was the explicit, resigned reason given in two separate shops, independently of each other.

I mentioned the first incident on Twitter – and it seemed to affirm what others had experienced.

https://twitter.com/davidallengreen/status/1429007481762615296

So: either there was a number of people lying, or there is a mass delusion, or a number of people are experiencing shortages and these shortages are being attributed to Brexit.

A quick infantile response to this is to say ‘so what’ and dismiss it as a ‘first-world problem’ (which may affect, of course, coffee growers not from the first-world.)

Perhaps it is: access to decaffeinated coffee may well be up there with guacamole and vegan bacon as the least of all our concerns.

But.

If this is true – and it certainly is the sincere belief of honest people – then it provides a micro-example of the inconveniences and misadventures that unsurprisingly will follow the United Kingdom ceasing to be part of the European Union single market.

There were always going to be some effects – and this could just be one.

And perhaps in the medium term, the supply lines will adjust, and decaffeinated coffee shall again be available in chain stores.

If so, then – other than passing complaints – Brexit will have taken effect without the huge backlash that many – especially Remainers – predicted.

On the other hand, if this inconvenience is added to others, and then to others, and they accumulate then – maybe – voters will see the point of the United Kingdom being part of the single market – and politicians could respond accordingly.

What will practically shift minds will be certain things being unavailable – even minor things – and people attributing the shortage to the explanation.

The taste of Brexit, like coffee, may not be as good as what some people expect it be.

*

(And for what it is worth, I support the United Kingdom being part of the single market but no formally rejoining the European Union – which some of you will say is the political equivalent of liking decaffeinated coffee.)

*

In the meantime…

…it looks as if we will now go further into Brexit with a caffeinated, heightened sense of nervous energy.

And what could go wrong with that?

**

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The three reasons why Foreign Secretary Dominic Raab is facing demands for resignation – and why it is not because he has actually done anything wrong (which he has)

20 August 2021

There are serious calls for the foreign secretary Dominic Raab to resign – so serious that there is a real possibility that he may actually soon do so.

This political situation means, in practical terms, that three pre-conditions have been met.

*

The first is that there are those in government – officials and/or politicians – who want the foreign secretary to resign (or at least be significantly embarrassed).

Without those in in government being opposed to the foreign secretary, the media would not have been provided with the material with which they are supporting the demands that he should resign.

*

The second is that those in the news media also want the foreign secretary to resign (or at least be significantly embarrassed).

If the foreign secretary had good (that is, information supply) relations with the lobby and other political journalists then, even if somebody else in government was against the foreign secretary, he could ride this crisis out.

But, for some reason, the news media have done a cost-benefit analysis of Raab staying as foreign secretary, and they see no reason to shield him.

*

The third is that the public – or at least a significant portion of the public – care.

Something in this story has received public attention.

For even if those in government wanted Raab out, and the press saw no advantage in shielding him, there still would be no clamour for his departure – unless there was also any interest by the public.

It would be a Westminster village thing, and so on.

But there is public attention, and the public appear to be unimpressed.

*

So, for there to be a serious political-media demand that the foreign secretary should resign the following three conditions have been met: (1) someone in government – minister or official – wants him out, (2) the media will not protect him, and (3) the public are sufficiently interested so as to make this a story.

The absence of any one of these three pre-conditions would mean the foreign secretary would probably be safe.

That these three pre-conditions have all been met is what makes him politically vulnerable.

*

But.

Notice what is not one of the pre-conditions.

There is no pre-condition that the minister has actually done anything wrong.

That factor is almost politically irrelevant.

In fact, ministers get things wrong all the time.

But such ministers are usually safe – as no other minister or official wants him or her out, and/or the media will protect him or her, and/or the public are not sufficiently interested so as to make it a story.

This means there is no necessary corresponding link between (1) a minister doing (or not doing) something that means that he or she should resign and (2) that minister facing any serious clamour for him or her to resign.

*

In an ideal polity, all ministers – all of the time – would be under the same critical scrutiny as to the performance of their duties as Raab is now.

And our political system would be better for it.

But most of the time – almost all of the time – such practical accountability does not happen.

Ministers get things wrong constantly, but they are usually protected.

And this is because no other minister or official wants him or her out, and/or the media will protect him or her, and/or the public are not sufficiently interested so as to make this a story.

So they are often safe.

And this is the difference between a political resignation or sacking story in the news – and there not being one.

This is the accountability gap.

**

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They are proclaiming Magna Carta at Edinburgh Castle

 

19th August 2021

Time for some summer fringe fun from Edinburgh (from my Twitter feed) – but also with a serious point at the end.

https://twitter.com/davidallengreen/status/1427893171984470018

https://twitter.com/davidallengreen/status/1427895325382135812

[Sadly the link in the above tweet has now been deleted.]

https://twitter.com/davidallengreen/status/1427897234360881154

https://twitter.com/davidallengreen/status/1427898649305128961

https://twitter.com/davidallengreen/status/1427899636006670339

https://twitter.com/davidallengreen/status/1427909500179296263

https://twitter.com/davidallengreen/status/1427910530455457792

https://twitter.com/davidallengreen/status/1427911683918503936

https://twitter.com/davidallengreen/status/1427912438314373124

**

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“The British constitution is whatever government can(not) get away with”

18th August 2021

There are only two particular things I knew about Austin Mitchell, the former member of parliament whose death was announced today.

The first was that, before he became a politician, he was a capable historian and the author of “The Whigs in opposition, 1815–1830”.

The second was his phrase that (I think) I can remember reading back in the 1980s but which I can only track online to 1997:

‘The British constitution is whatever government can get away with.’ 

This phrase has stuck with me as a politics student in the late 1980s, as a history student in the 1990s, and as a lawyer and constitutional commentator thereafter.

It is a perfect way of summing up a descriptive (as opposed to prescriptive) approach to constitutional matters.

(Anyone can witter on about what a constitution ‘should’ do, and constitution-mongering is easy – the difficulty is often working out exactly what in practice a constitution is – and is not – doing and why/how.)

And the phrase correctly focuses on the most serious predicament in the constitution of the United Kingdom: the lack of real checks and balances on the executive.

I personally prefer to render Mitchell’s dictum slightly differently, though the ultimate meaning is the same (emphasis added):

‘The British constitution is whatever government cannot get away with.’ 

In other words: if one was to plot all the instances where the executive cannot just do as it wishes then you would have a fair descriptive portrayal of the constitution.

To an extent that depiction would correspond with the text books on government and law – but also to an extent that depiction would not be in many academic books or papers.

As different as a picture of an elephant drawn by second-hand description against a high-resolution photograph.

So I know little about Mitchell as a person or as a politician – but that one phrase of his set off over thirty years of practical constitutional thinking and writing.

Or at least the constitutional commentary that I can get away with.

**

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

17th August 2021

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

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

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

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

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

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

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

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

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

*

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

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

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

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

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

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

*

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

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

Here is our current foreign secretary:

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

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

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

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

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

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

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

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

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

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

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

*

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

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

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

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

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

But political power hangs on, well, threads.

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

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