United Kingdom Law and Policy – Page 5

Constitutionalism vs constitutionalism – how liberal constitutionalists sometimes misunderstand illiberal constitutionalism

24th August 2023

One conceit of many liberal constitutionalists is that they have a monopoly on constitutionalism: that is the notion that constitutional rights and structures are fundamental to political thought and action.

An indication of this conceit is the immediate – indeed automatic – response of British liberals to certain political mishaps and transgressions: this shows the need for a written constitution.

This is said, with force and sincerity, regardless of the brute fact that written (that is, codified) constitutions can be very illiberal things indeed.

A codified constitution can entrench rather than limit executive power, and it can limit rather than entrench the ability of other organs of the state to check and balance executive power.

From a liberal perspective, the true test of a written constitution for the United Kingdom is whether it would be more liberal than our current uncodified constitutional arrangements.

There is no reason to believe it would be, especially if the government of the day – with its army of ambitious officials and clever legal advisers – has anything to do with its drafting and implementation.

Our current constitutional arrangements have obliged the executive to use legislation for the Article 50 notification and prohibited the government from using a prorogation for wrongful purposes; and our current constitutional arrangements also have led to two prime ministers losing power, notwithstanding the large majority of the incoming government in 2019.

Against these highlights, however, is the steady push of the executive to gain more and more discretionary power, especially in respect of interfering with the rights of individuals. So the current arrangements should not an excuse of complacency, for our constitution has many illiberal features too.

But the way forward to making our constitution more liberal is not to assume that illiberals do not care about constitutions; it is to realise and accept that they too care about constitutional powers, but not in the same way as liberals.

In a more vivid form, this can be seen in the United States where the Trumpites and others frame their objections to their government in terms of their constitutional rights, especially to bear arms and free expression, and states’ rights.

Even the events of 6 January were based on an elaborate ruse of gaming the constitutional role of Vice President (as president of the senate) and exploiting that role’s responsibilities in respect of electoral college votes.

This may not be constitutionalism which is to your liberal tastes – and indeed many conservative constitutionalists were opposed to this ploy.

But it is still a form of constitutionalism – in that certain constitutional provisions were being (mis)used to legitimise and achieve certain political ends.

What Trump and his conspirators wanted to do was to keep power by (mis)using constitutional provisions.

And, of course, he would not have been the first authoritarian populist to seize and retain power through constitutional arrangements, rather than in spite of them.

It is prudent in public matters to try to understand political opponents on their own terms, rather than to caricature them and their motives.

Liberal constitutionalists need to realise that their opponents also care about constitutional arrangements and constitutional legitimacy, but do so in a very different way and within a very different narrative.

The battle is not about constitutionalism against anti-constitutionalism.

It is between two contrasting and irreconcilable views of constitutions and what can be done with them.

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Performative justice and coercion: thinking about coercing convicted defendants to hear their sentences

(Source)

The court system is inherently about performance: about justice being seen to be done.

And the legal system, more generally, is inherently about coercion: about people being forced to do things they otherwise would not do.

So taking these two things together, performative justice and coercion, both of which are deeply fixed in our culture, it is difficult for many to understand why a convicted defendant cannot simply be coerced to attend a courtroom to hear the sentencing remarks of the judge.

The many have a point: it does seem an odd gap in the practice of criminal law, a lacuna in the world of courts and coercive force.

But.

There are genuine practical problems about having this particular form of coercion.

What happens if the defendant refuses to perform their allotted role and disrupts the court? Ordering back to their cells rather defeats the point of obliging them to be present.

And how do you meaningfully punish someone for non-compliance when they already face a life sentence?

There are also important points about placing at risk those court workers who would be expected to enforce the requirement against an unwilling defendant.

Like many things in criminal justice, and in the law generally, there are not easy answers to what seem easy questions: no deft solution to those who clamour that something must be done.

There is, however, perhaps another way of thinking about this.

And this is to focus on the sentence of the court being the actual punishment.

That sentence may include incarceration and other things.

But the sentence is the thing.

It is the sentence which provides (or is supposed to provide) the output of justice – the sanction which the court holds to be the proportionate and, well, just response to the offence that has been found to have been committed.

Anything in addition to the sentence, even things which seem must be done, is separate from the sentence.

We should be wary about adding performative elements in addition to the sentence handed down by the court – especially elements intended to show further retribution.

Of course, part of a criminal sentence often serves the purpose of retribution.

But even in the most extreme cases, the purpose of retribution has to be balanced by other elements by a court.

The further we go from the sentence being the punishment, because of a clamour for there to be even more dramatic performative elements, the less the sentence itself can be regarded as the product of the justice system.

Perhaps attendance orders for certain convicted defendants can be built into the court process, or even be made part formally of the sentence.

After all, as said above, there is already plenty of performative and coercive elements in criminal justice system. One more will not make that much difference.

But until such orders are properly integrated into the process, the concern should be that such elements are not made substitutes and supplements for the actual sentence.

The sentence is the thing, and it should always be the thing.

And even when the scales of justice are lopsided with the weight of the most awful of crimes, they nonetheless remain scales.

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Sir Keir Starmer and the Litigation Turn of Mind

31st July 2023

The leader of the opposition is a former litigator, and many litigators have a certain strategy – or at least a set of tactics: a certain cautious approach.

This approach is to think backwards from what may happen at trial – indeed sometimes to think backwards from what may happen with any appeal.

This sort of litigator anticipates what can go wrong with a case and thereby acts to, as far as possible, close the potential problem(s) down.

Other litigators can be more gung-ho, trying to make the most of their case at each and every point, from aggressive letter before action to expansive claim forms. Such litigators often encounter set-backs.

The more cautious litigator looks at everything the other way round, focussing on the strengths of the other side and the weaknesses of their own.

The merit of this approach is that if and when one gets to trial one is less exposed to defeat.

And often not being defeated on key points is enough for a good result.

If both sides adopt this approach then the “winning” party will be the one who has made the fewer mistakes.

But.

Politics is not law, and a general election is not a trial.

Yes, there is a place for mitigating or even eliminating predictable lines of attack.

And that may be enough for a political party to at least avoid a heavy defeat.

It may not, however, be enough to mobilise sufficient support so as to make an outright victory more likely.

For that there needs to be a positive message: to have points that the other party instead needs to mitigate or eliminate.

This is not to say that closing down lines of attack is a bad thing, just that it is not a sufficient thing.

A cautious litigation turn of mind has its place, but campaigning is not litigation.

A political leader – even those who were once lawyers – also needs a political frame of mind.

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A modest proposal for helping the Prime Minister “keep on top of government” and “to push priorities”

3rd July 2023

Over on Twitter, the estimable Dr Cath Haddon is live-tweeting a talk from a former cabinet minister to the Institute of Government:

Here is an idea for a Prime Minister to have something to help him or her keep on top of what is going on in government and to push priorities.

The Prime Minister should form a committee of, say, about twenty-two individuals, each responsible for a specific government department or public function.

Those on this committee should report directly to the Prime Minister.

And the Prime Minister should be able to appoint and replace members of this committee as he or she chooses.

This committee should meet at least a couple of times a week – and this meeting should be at Downing Street chaired by the Prime Minister.

There can also be sub-committees dealing with matters where more than one government department is concerned – and these sub-committees can also be chaired by the Prime Minister or their designate.

So as to ensure that priorities are pushed – and as politics should be the language of priorities as one politician once said – these appointees should be politicians not officials.

And appointing members of parliament to this committee would also mean that the Prime Minister would have a useful direct line to what is said about the departments in parliament.

Meetings of this committee should also be attended by the head of the civil service, so that he or she can be part of the discussions and to provide advice and practical insight.

The deliberations should be confidential so that discussions can be frank and not leaked.

And there should be collective responsibility for those on the committee, so that there is a single overall direction to the course of the government.

Those on this committee should also be paid a substantial amount in addition to their parliamentary salary so as to recognise the additional work and to attract the brightest and best.

Such a model would, at a stroke, keep a Prime Minister on top of what is going on in government and for priorities to be pushed across government.

And this is the important thing…

…if a Prime Minister cannot effectively use such a committee to keep on top of what is going on in government and to push priorities, then no “Prime Minister’s Department” is going to be of any greater help.

The only thing left is what to call this committee.

Pic source.

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Why the United Kingdom government cannot leave the ECHR without either breaching or re-negotiating the Good Friday Agreement

1st July 2023

The overlooked obstacle to the United Kingdom withdrawing from the ECHR

From time to time the demand comes from a government minister, or from one of their political and media supporters, for the United Kingdom to leave the European Convention of Human Rights.

This short blogpost sets out the most obvious obstacle for the government in doing this.

The obstacle – if that is the correct word – is the Good Friday Agreement.

That thirty-six page document – which is not as read as widely as it should be – contains a number of express provisions in respect of the ECHR:

“The British Government will complete incorporation into Northern Ireland law of the European Convention on Human Rights (ECHR), with direct access to the courts, and remedies for breach of the Convention, including power for the courts to overrule Assembly legislation on grounds of inconsistency.

[…]

“There will be safeguards to ensure that all sections of the community can participate and work together successfully in the operation of these institutions and that all sections of the community are protected, including: […]

“(b) the European Convention on Human Rights (ECHR) and any Bill of Rights for Northern Ireland supplementing it, which neither the Assembly nor public bodies can infringe, together with a Human Rights Commission

[…]

“The Assembly will have authority to pass primary legislation for Northern Ireland in devolved areas, subject to: (a) the ECHR […]”

And so on.

The ECHR is not just mentioned in passing in a recital.

Instead the ECHR is integral to the Good Friday Agreement.

Rights under the ECHR that can be relied upon in Northern Ireland are a fundamental part of the agreement.

It was important to Ireland – and to the nationalist community – that there were rights beyond the reach of Westminster and Whitehall (and Stormont) that could be enforced directly against the state of the United Kingdom, including against the police and security services.

When this obstacle is pointed out, sometimes the response is “Aha! Why not just have the ECHR applicable in Northern Ireland?”

Of course, there is nothing in the Good Friday Agreement which expressly requires rights under the ECHR to be directly enforceable elsewhere in the United Kingdom.

But.

Article 1 of the ECHR provides:

It may thereby not be open to the United Kingdom to be a party to the ECHR and pick-and-choose who within its jurisdiction can have the benefit of the rights.

This would be in addition to the political issues about having a further legal “border down the Irish Sea”, which presumably would not be welcome to unionists.

Perhaps the government of the United Kingdom could seek to renegotiate the Good Friday Agreement?

This would mean Ireland agreeing that those – especially nationalists – in Northern Ireland should have their existing legal rights against the United Kingdom state removed.

It would also mean Ireland agreeing that it would not be able to take the United Kingdom to court in Strasbourg.

And it would also mean – in practice – the United States and the nationalist community agreeing that legal rights and protections are removed.

This is not at all realistic.

And the difficulty cannot be resolved by simply copying and pasting the Convention rights into a domestic statute for Northern Ireland.

For unless the rights are as constructed and interpreted by the Strasbourg court, and unless a disappointed party can petition the Strasbourg court directly, they are not “convention rights” – even if identically worded.

(This is partly why even Dominic Raab’s “Bill of Rights” that was to repeal the Human Rights Act had the convention rights in a schedule and a duty on public authorities to comply with those rights.)

Part of the difficulty of Brexit was because some did not know or did not care about the particular situation of Northern Ireland. Some also pretended it was not an issue, but as we now know it needed special care and attention – and it still has not been fully resolved.

Similarly those who believe just leaving the ECHR would be easy may again be overlooking the Irish and Northern Irish dimensions.

And unless the Good Friday Agreement is re-negotiated, the United Kingdom leaving the ECHR would place the United Kingdom in breach in Good Friday Agreement.

Well, at least as long as Northern Ireland remains part of the United Kingdom.

And that would be another story.

This post is partly drawn from this earlier blogpost.

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Understanding the significance of today’s Court of Appeal decision on the Rwanda removals policy

29th June 2023

Today the Court of Appeal ruled that the United Kingdom government’s controversial Rwanda removals policy was unlawful.

The judgment is here and there is a court-prepared summary here.

By saying the policy was itself unlawful, this means that each and every possible removal of any asylum seeker to Rwanda for their asylum application to be processed is currently unlawful. There are no current circumstances where a removal would be lawful.

The reason for the unlawfulness is that Rwanda is not a safe place for the processing of asylum claims:

This goes beyond the decision of the High Court that each particular removal happened to unlawful, on a case-by-case basis, because an appropriate process had not been followed. The High Court had said that the general policy was lawful, but each application of it so far had been unlawful.

The Court of Appeal now says that even the policy was unlawful. No removal, even with elaborate procedural compliance, would be allowed.

So both in practice and in the round the Rwanda removals policy has been held unlawful.

Opponents of the policy can celebrate – to an extent.

Here are some further thoughts about what this decision signifies and does not signify.

First, and from a practical perspective, the government’s far bigger problem was the initial High Court judgment. It does not really matter if a policy is (theoretically) lawful if the procedural protections required for each individual case are such that, in practice, removals are onerous and extraordinarily expensive.

I blogged about these practical problems when the High Court handed down its judgment:

Today’s ruling that the policy itself is unlawful makes no real difference to the government’s practical predicament with the policy in individual cases.

And the government appears not to have appealed the adverse parts of the High Court judgment.

The Home Secretary, and her media and political supporters, can pile into judges and lawyers because of today’s appeal judgment. But their more serious problems come from the last judgment, and not this one.

The Home Office is simply not capable or sufficiently resourced to remove many, if any, asylum seekers to Rwanda even if the policy was lawful.

Second, the Court of Appeal decision today is likely to be appealed to the Supreme Court.

And, from an initial skim read of the relevant parts of the judgment, one would not be surprised if the Supreme Court reverses this Court of of Appeal decision.

Today’s Court of Appeal decision is not unanimous – the Lord Chief Justice was in the minority on the key question of whether Rwanda was a safe country for processing asylum claims.

The Supreme Court is (currently) sceptical of “policy” type legal challenges, and is likely thereby to defer to the Home Secretary’s view that Rwanda was a safe country for processing asylum claims – a view also shared by the two judges at the High Court and the Lord Chief Justice.

If the Home Office appeals to the Supreme Court then one suspects it is likely to win.

(Though it must be tempting to the Home Secretary to now abandon this – flawed – policy, and blame the judges.)

Third, any appeal to the Supreme Court will take time. As it has taken until June 2023 for an appeal decision for a December 2022 High Court decision, it may be another six months before there is a Supreme Court hearing and decision.

And in that time, and unless a competent court decides otherwise, all removals will be unlawful as a matter of policy.

If the government wins at the Supreme Court then there would presumably be further delays while individual challenge-proof removal decisions are made.

In other words, the period for any actual removals before a general election next year will be short.

Even with a Supreme Court win, it will be that few if any asylum seekers are removed to Rwanda before a likely change of government.

(Though it cannot be readily assumed that an incoming government will change the policy.)

Fourth, it should not be overlooked by opponents of the Rwanda removals policy that the appeal lost today unanimously and comprehensively on every other ground:

These defeats are not any cause for opponents of the policy to celebrate.

Finally, there is a possibility of a work-around, which the government could adopt.

In the Abu Qatada case it was held by the courts that a deportation to Jordan for a trial was unlawful because of the use of evidence extracted by torture in the Jordanian legal system.

And so the United Kingdom government did a deal that the Jordanian legal system changed its ways so that the deportation could take place.

Abu Qatada was then, lawfully, deported.

(And then acquitted by the Jordanian court in the absence of such evidence.)

This deportation was presented by the United Kingdom government as a win against pesky human rights lawyers – when in fact the government had in reality complied with the judgment.

Similarly, the United Kingdom government may work with the Rwanda government to improve the asylum system, and correct the evidenced defects, so that concerns of the majority of the Court of Appeal are addressed.

No doubt the government would then similarly present any Rwanda removals on this basis as a win against pesky human rights lawyers – but again it would be the government complying with what the court would have approved.

The judgment released today is long – and nobody commenting on the judgment today – politician or pundit – can have read it and properly digested it.

This post is thereby based only on initial thoughts and impressions.

That said, there is reason today for opponents of the Rwanda removals policy to celebrate.

But perhaps not too much.

This has been cross-posted from The Empty City Substack.

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“How did this person die? – And what lessons can we learn?”

27 June 2023

A sensible policy proposal to monitor the recommendations of coroners’ inquests

“How did this person die?”

In any organised society this is one of the most important and basic questions that can and should be asked.

Was it a death that could have been prevented?

Are there things that can be done so that similar deaths can be avoided?

These questions are not just about the immediate, medical cause of death – but the wider circumstances which led to a person dying.

“How did this person die?” is a question which the legal system can often only answer indirectly. A police investigation and a criminal trial can sometimes ascertain the circumstances of a death when there is potential criminal liability. A civil trial can sometimes ascertain the circumstances of a death when there is potential civil liability.

But not all preventable deaths or lethal system failures are matters for the criminal and civil courts. And the purpose of court proceedings is not directly to inquire into facts generally, but to allocate legal liability – which is not always the same thing. For example, criminal proceedings especially have very strict rules of evidence.

There therefore needs to be another way of inquiring in the circumstances of the death and drawing any lessons – distinct from and in addition to the criminal and civil courts.

A way where the focus is not on the rights and liabilities of persons, but on simply finding out what happened and what that tells us.

And there is such another way.

In England there is the ancient office of the coroner.

Coroners have long provided the public good of conducting inquests into the circumstances of deaths – and coroners can make recommendations that may prevent further deaths and avoid similar lethal system failures.

It is difficult to think of anything that serves a more fundamental public interest.

But.

There is little wider point in coroners conducting their inquiries and making recommendations if nothing comes of the lessons that have been identified.

And this is a serious problem about our coronial system.

Here is a worked example provided by Inquest, the charity that provides expertise on state related deaths and their investigation:

And here is another case study:

As Inquest say at the end of that case study:

“…there is no central body dedicated to collating and analysing the Government’s follow-up to these recommendations to encourage positive action to prevent further deaths. Instead, it falls to families, lawyers, charities and coroners to join the dots.”

In essence, the lack of any body (and, indeed, anybody) being responsible for monitoring what happens to coroners’ recommendations robs the coronial system of any wider efficacy.

A public good may be being served by individual inquests into particular deaths, but this public good is not being converted into a wider social benefit.

That there is even this gap is extraordinary.

Other public entities have, in turn, their monitors – for example, the inspectorates of the police and of prisons.

There are many bodies that answer Alan Moore’s question of who watches the watchmen (or, as Juvenal once put it, quis custodiet ipsos custodes?).

Given the fundamental public interest in avoiding preventable deaths and lethal system failures, it would seem to be a no-brainer of a public policy proposal.

Inquest are today launching a campaign for such a body:

Inquest have also published this persuasive guide – from which the above case studies are taken.

Though the proposed name of a “national oversight mechanism” is a bit cumbersome – I would suggest OffQuest – there can be no sensible doubt that it is required as a thing.

And as we approach the next general election, it would seem straightforward for political parties to commit to such a body in their manifestoes.

It is a gap that should be filled and can be filled, and it is a proposal that can only have benefits.

For after all, the reason why “How did this person die?” is such an important question is that the answer can often help those who are still alive.

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Over at his Substack, Joshua Rozenberg has written a good post on this topic.

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This has been cross-posted from my Empty City substack.

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Photo credit: wikimedia commons.

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The government is running out of time

26th June 2023

In the words of the eminent jurist Paul Simon:

“Time, time, time
See what’s become of me

“Time, time, time
See what’s become of me
While I looked around for my possibilities”

One hard structural fact about the politics of the United Kingdom is that the government is running out of time.

By automatic operation of law the next general election has to take place by 28 January 2025.

That gives the current government about 580 days left, maximum, before a general election which many forecast that the governing Conservative party will lose.

About 580 days sounds a lot, but it really is not – at least in parliamentary terms.

That date presupposes that the general election is called at the last possible moment – 17 December 2024 – leaving the longest possible election campaign.

Current speculation is that the next general election will be in October 2024, which means the last parliamentary session will need to be over by September 2024, and given summer breaks, that basically means legislation will need to passed by June/July 2024.

So that is about 365 to 400 days.

We are still – remarkably – within the same parliamentary session that commenced two prime ministers and one monarch ago in May 2022.

And as the Hansard Society averred in May, few of the Bills announced in that speech have become law:

It is expected that there will be a new King’s Speech this November.

This means that it is highly likely that there is just one more parliamentary session left before a general election – November 2023 to June/July 2024.

(There is the theoretical possibility of more than one remaining parliamentary term if the government has a sequence of truncated parliamentary sessions, with multiple openings of parliament.)

One implication of there being only one more parliamentary session before an election is that it is probable that there is not enough time to force any new legislation through the House of Lords under the Parliament Act, for that requires a Bill to be approved in successive sessions.

And then there are the recesses:

As one adds up the delays and holidays, and the speculation of an election by October 2024, the gross figure of 580 days becomes a lot less in practical legislative terms.

The grand hourglass of parliamentary time is running out for the current government.

We are not talking years, we are now talking months – and soon we will be talking weeks.

And not only time is against them – there is the problem of legislative preparation.

Put simply: this government is not very good at preparing legislation.

As the Hansard Society politely put it:

Parliamentary time for bills should not be, say, “step one’‘ of a process but about “step four” – after policy formulation, consultation and development – all within or by departments.

And so if you factor in the time to actually put together new practical – that is, passable – legislation then not even the maximum 580 days are really enough.

Even if following the conference season this year there is a “whizz-bang” King’s Speech with lots of legislative proposals, that whizzery and bangery needs to being prepared now in departments, and there is not a lot of evidence of any whizzery and bangery taking place anywhere in Whitehall at present.

Not only does the government need enough time to get legislation through parliament and implement it before the next general election, ministers and departments need lead-in times to get the legislation to be in any state to pass.

The time left looks very tight.

Too tight.

What we have is a government that not only is running out of time, but in some ways has already ran out of time to do anything radical and substantial in its one (likely) remaining parliamentary term.

And what makes this even more remarkable that this is a government elected in December 2019, on the back of Brexit, which had a substantial majority – only the second overall majority the Conservatives had had since 1992.

In legislative and policy terms, that majority has been largely wasted.

(Which may be a good or bad thing, depending on your politics.)

This is a government running out of possibilities.

“Time, time, time
See what’s become of me

“Time, time, time
See what’s become of me
While I looked around for my possibilities”

How to approach the oral evidence at the Covid Inquiry

Midsummer Day, 2023

There are now big political names giving oral evidence at the Covid Inquiry for the first “module” covering the preparedness of the government for a pandemic.

This is just a brief post to point out that you should not over-emphasise the theatrics of certain exchanges between the witnesses and counsel, however dramatic or even gladiatorial those exchanges seem to be.

This is not a film or a play; it is not even a trial.

The best way to understand what each witness has to say, once the evidence has been given, is to click onto the “documents” part of the Covid Inquiry site.

And then you should find at least two documents. The first is the witness statement of the relevant witness provided before the questioning, and the second is the transcript of the questioning.

For example, this is David Cameron’s witness statement – and this is the transcript of his session.

Sometimes the Inquiry will also publish other documentary evidence that has come up in the oral evidence sessions, for example this.

By comparing the witness statement with the oral evidence (and any additional documentary evidence) you will see exactly where the Inquiry is probing – and also where the Inquiry may not be satisfied by the content of a witness statement.

The nature of any inquiry does not lend itself to sudden courtroom fireworks; indeed, a line of questioning may seem very dull to onlookers until you realise what is said in the statement.

Remember, inquiries are often reliant on the evidence provided – a sort of GIGO principle.

And these oral sessions are intended to complement the written witness statements, and so the transcript should be read with the statement.

Those who only read media summaries, or catch snippets of the more notable exchanges, often end up surprised with what any inquiry produces.

Before you form Very Strong Opinions on what witnesses to the inquiry are supposed to have said, take a few moments to read the witness statement and then the transcript for yourself.

And you are lucky: because of the internet and an impressive Covid Inquiry website this – actually intellectually satisfying – exercise can be done with ease.

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Life after Brexit – and “exceptionalism”

20th June 2023

There is a useful general rule of writing: if more than one person, in good faith, mistakes the point you are making then it is the fault not of the reader, but the fault of the writer.

This is a general rule, not a universal law, and so it has exceptions; but it is true far more often than not.

And so, when on Friday, in response to my quick post on life after Brexit a number of usually sensible respondents (here and elsewhere) thought I was guilty of the very “exceptionalism” of which I was accusing others, it was moment to think and reflect.

Was I unclear? Or was I being inconsistent, even hypocritical?

I hope it is not the latter, and so I am going to take advantage of this being my own blog to have another go at setting out my view on what the United Kingdom should do now it is outside the European Union.

First, the situation is – well – exceptional. No sovereign state has ever before become an “ex-member” of the European Union.

The nearest analogue is Greenland – not a sovereign state – which left the (predecessor) European Communities – not the European Union.

And so whatever relationship the United Kingdom now has with the European Union necessarily will be distinct and unusual, regardless of the attitudes of those in both the United Kingdom and the European Union.

Second, in saying that there should be joint institutions – “I would prefer the United Kingdom to formally remain outside the European Union while, over time, and in substance, evolving joint institutions, policies and rules in partnership with the European Union” – I am only referring to things which are already in place.

The Trade and Cooperation Agreement provides, for example:

And in the withdrawal agreement, for example:

To say that a suggestion that the United Kingdom and European Union should evolve joint institutions is “exceptionalism” is simply to say you have not read or understood the agreements already in place.

The institutions are already there.

My view is that as the agreed institutional framework is already in place – though in embryonic form – they should in a trial-and-error manner become a ever-firmer basis of the United Kingdom’s relationship with the European Union.

This would make the ongoing relationship practicable and sustainable, rather than some whizz-bang big-bang set of new institutions.

Third, any institutional relationship should be at the pace of both the United Kingdom and European Union – a collaborative approach that is, I aver, distinct from “exceptionalism”.

It is just as important that it works for and suits the European Union as it works for and suits the United Kingdom.

The United Kingdom should not get (and certainly will not get) special, selfless treatment from the European Union.

But there are possible association relationships that would suit the ruthless self-interest of the European Union as well as the interests of the United Kingdom.

The foreseeable future is unlikely to be either the United Kingdom following a trajectory towards an illusory goal of splendid isolation or the United Kingdom being accepted back as a full member state of the European Union.

The United Kingdom instead has to prepare for life on the outside of the European Union, seeking to build the most practical and sustainable relationship consistent with the political totem of the 2016 referendum result.

You may hate the 2016 referendum result – and you are welcome to keep re-fighting the 2016 referendum – but given that neither the governing nor main opposition party are seeking to reverse Brexit (or even offer a further referendum) then the result of that referendum has to stand.

And our policy for the next five to ten years at least has to accept this.

The United Kingdom and the European Union have two detailed agreements with joint institutions.

I would submit that it is not “exceptionalism” to see how such a structured relationship now goes, and to also see what the United Kingdom and the European Union can jointly make of it.

I would submit that “exceptionalism” is pretending that that this is not the mundane reality and that – perhaps by magic – something else can and should happen instead.

There is another rule about writing that one should never answer critics.

Well.

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