United States Law and Policy – Page 2 – The Law and Policy Blog

How Taylor Swift’s endorsement of Harris and Walz is a masterpiece of persuasive prose: a songwriter’s practical lesson in written advocacy

11th September 2024

Taylor Swift has endorsed the Democratic nominees Kamala Harris and Tim Walz.

Politically and culturally the endorsement is significant, but this is not really a political or cultural blog.

This is, however, a blog that sometimes provides close readings of key documents, and there are things about the endorsement that are perhaps worth noticing and remarking upon.

In essence: this endorsement is a masterpiece of practical written advocacy, and many law schools would do well to put it before their students.

Look carefully at the first three paragraphs – especially the use of the first person “I” and “me/my” and the second person “you” (emphasis added):

“Like many of you, I watched the debate tonight. If you haven’t already, now is a great time to do your research on the issues at hand and the stances these candidates take on the topics that matter to you the most. As a voter, I make sure to watch and read everything I can about their proposed policies and plans for this country.

“Recently I was made aware that AI of ‘me’ falsely endorsing Donald Trump’s presidential run was posted to his site. It really conjured up my fears around AI, and the dangers of spreading misinformation. It brought me to the conclusion that I need to be very transparent about my actual plans for this election as a voter. The simplest way to combat misinformation is with the truth.

“I will be casting my vote for Kamala Harris and Tim Walz in the 2024 Presidential Election. I’m voting for @kamalaharris because she fights for the rights and causes I believe need a warrior to champion them. I think she is a steady-handed, gifted leader and I believe we can accomplish so much more in this country if we are led by calm and not chaos. I was so heartened and impressed by her selection of running mate @timwalz, who has been standing up for LGBTQ+ rights, IVF, and a woman’s right to her own body for decades.”

In the first paragraph, she ensures that she identifies with you the reader – “Like many of you [comma]” and “As a voter [comma]”.

There are four “yous” in that first paragraph: you, you, you, you.

You are already half-nodding along. You and Swift have common ground.

In the second paragraph, she then describes things of personal concern – but here she avoids putting “I” at the start of any sentence. This makes it look that she is describing the situation objectively.

She deftly – and convincingly – justifies making a political endorsement. The sentences “It brought me to the conclusion that I need to be very transparent about my actual plans for this election as a voter. The simplest way to combat misinformation is with the truth.” are perfectly reasonable.

Two premises leading to a “conclusion”, and in just one paragraph.

You will see that so far she has avoided starting any sentence with “I”.

And then, with the third paragraph, wham.

The first sentence beginning with “I” is the actual endorsement.

And then every sentence in the third paragraph begins with “I”: bam bam bam.

Also, like any good advocate, Swift is careful to make the listener or reader feel that it is their own decision to make, and again this is skilfully done:

“I’ve done my research, and I’ve made my choice. Your research is all yours to do, and the choice is yours to make.”

Note the rhythm: I, I, you, you, you.

The most effective persuasion is often to lead the listener or reader to making their own decision – and to make them feel they are making their own decision.

Finally, the pay-off: the thing that will linger.

The reader is already half-aware of what is coming, because of the photograph.

A good pay-off is often a call-back – and here, cleverly, the call-back is to the visual clue the reader would have registered before even reading.

“With love and hope,

Taylor Swift
Childless Cat Lady”

This is, of course, a swipe and a blow against J. D. Vance, the Republican vice presidential nominee.

And so Swift mocks the Lilliputian.

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Supporting Donald Trump is too much for Richard Cheney

7th September 2024

Back in the halcyon days of that golden age of when politics seemed kind of normal, there was no greater illiberal pantomime villain than Vice President Richard Cheney.

(Of course, halcyon days and golden ages never existed, for that is a trick of our memories and histories.)

Richard Cheney was – and perhaps still is – a believer in something that is called ‘unitary executive theory’. This is a bundle of ideas that even has its own Wikipedia page:

In effect: the doctrine is about there being few limits – or at least few meaningful limits – to the sheer executive power of the United States presidency – and vice presidency.

(Note the word ‘executive’ there – it does not necessarily mean trespassing on legislative and judicial powers, though it does mean limiting the scope of legislative and judicial powers.)

There are even academic articles about Richard Cheney and this approach:

Richard Cheney is about as far from being a liberal constitutionalist as one can imagine, at least in terms of theory and principle.

But.

Yesterday came the astonishing news, initially through his daughter (the brave and estimable) Elizabeth Cheney, that the former Vice President is not supporting the former President Donald Trump in the latter’s attempt at re-election and will instead be voting for Democtratic candidate (and current Vice President) Kamala Harris.

This has now been confirmed directly from Richard Cheney himself:

Of course: there is a distinction between what one does with power and how one gets that power.

One can believe in the widest executive powers for a President (and Vice President) once elected, but still (genuinely) believe in a democratic process so as to obtain those powers. Indeed, there is a conceptual connection in that the wide executive powers are (somehow) justified by the democratic mandate.

And if you look carefully at Richard Cheney’s reported remarks, his objection is primarily to Trump’s abuse of the election process, and not to the abuses of presidential power itself.

In effect: yes you can have those wide powers, but you need to obtain them properly.

Yet, this is still quite the turn-up.

Once upon a time, liberals worried about the wide powers of a Vice President Cheney – and of a President Bush.

And now, in turn, illiberals like Vice President Cheney are worried about the undemocratic pretensions of a President Trump.

This is an interesting and significant development.

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Donald Trump is convicted – but it is now the judicial system that may need a good defence strategy

1st June 2024

On balance, the prosecution of Donald Trump in New York did not look likely to succeed.

The prosecution had to show that certain business records were falsified at the direction of or on behalf of the defendant, and falsified for a further unlawful purpose.

That was a lot for a prosecution to prove – especially when there is no documentary admission that the defendant said “I direct that these records be falsified” and “I also direct that those records should be falsified for this ulterior wrongful purpose”.

What made such a prosecution even more difficult was that a key prosecution witness was a self-confessed liar with a self-confessed grudge.

And what made such a prosecution even more difficult than that is that the jury verdict had to be unanimous.

Regardless of the celebrity – or notoriety – of the the defendant in this particular case, these general features made this look like an ambitious prosecution.

But.

The prosecution pulled it off.

The prosecution were able to satisfy the unanimous jury that the records were falsified at the direction of or on behalf of Trump for the unlawful purpose of affecting an election. The prosecution was able to corroborate the evidence of its key witness.

Overall, and again regardless of the identity of the defendant, it was an impressive piece of lawyering.

And as Joel Taylor remarked on Twitter, it was also an impressive piece of jurying.

Yet it must be said that it was an unimpressive piece of defending.

Of course, Trump had the right – indeed, as an American, a constitutional right – not to give evidence.

And, of course, it was open to the defence to test the prosecution case without putting forward a positive account of the facts – especially in an elaborate and complicated case like this.

But one gained a sense in this case that a wiser defendant would have allowed the defence to adopt a different approach.

Yes: Michael Cohen, the self confessed liar and grudge holder, could be attacked in respect of his credibility.

But when the prosecution has been careful to corroborate almost all the material points in his evidence, then attacking Cohen’s credibility may not be sufficient.

The defence strategy here was not hopeless – it could have worked had the jury become preoccupied with Cohen – but it was a risky one to adopt.

The defence really had to put forward an overall positive explanation for the sequence of documented communications, authorisations and payments that the prosecution put before the jury – an explanation more plausible (and lawful) than the (unlawful) explanation advanced by the prosecution.

An explanation that would, in essence, raise reasonable doubts that that the prosecution version of events would be the true one.

And it appears that the defence did not do so, leaving the jury with only one explanation that covered the mass of documentation that fraudulent records were created to disguise unlawful payments: the prosecution’s explanation.

Trump and his lawyers wanted to tell the story of a corrupt prosecution and a dishonest witness, but the story they really needed instead to tell was that which explained the entirety of the evidence before the jury.

They ended up telling the wrong story.

Previously I have pointed out that a court hearing – a trial – is where Trump is a fish out of the water:

What works for Trump in one, well-versed context does not work for him in another.

One can see why, among other reasons, he wants to put off the other court cases as long as possible, even if he can weaponise them for fund-raising and campaigning. Trials are a thing he cannot dominate by his usual strength of will and cunning alone.

(This also may be related to his aversion, when in office, of committing troops to combat situations – another means by which he would lose control of events and narratives.)

Because Trump cannot win in court, he has to win outside of court.

Just like because he did not win the last presidential election, he has to win outside of the electoral college.

And he does this, of course, by discrediting the process – by attacking the very legitimacy of institutions.

This hyper-partisanship regarding “stolen” elections and “corrupt” courts is dangerous.

Legitimacy can be fragile, and if the legitimacy of democratic and judicial processes is undermined then a polity will quickly become unhappy and fractured.

For if people do not believe in the legitimacy of democratic and judicial processes then they will tend to find other, less peaceful ways of addressing their political concerns.

And this is where the political and judicial systems themselves need to mount a plausible defence.

Trump may not be the master inside a courtroom, but he is a formidable and politically lethal operator outside the courtroom.

As always, it is not enough for justice to be done, justice needs to be shown to be done.

Trump and his supporters are now mounting an outright attack on the legitimacy of political and judicial institutions.

It may not only be Trump that needs a good defence strategy.

Trump’s case – a view from an English legal perspective

24th April 2024

I am not an American lawyer, but here are some thoughts from an English litigation perspective.

Trump is adept at what he calls (or his ghost writer called) ‘the art of the deal’ – that is a transactional approach based on exploiting leverage.

Such an approach is not unhelpful in pre-trial shenanigans, where it is one party dealing with another party. Pre-trial litigation is often deal-making by another name. But when a dispute gets to court (and most Trump-related litigation does not get to a courtroom) then such bilateral game-playing becomes far less important. A third party – the judge (and sometimes jury) takes power. Trump’s blustering and bargaining is not well suited for this. Bullying will now not be enough.

And there will also be another thing he now cannot control: evidence. And this evidence will feed into the media mainstream, with the added credibility of being on oath. For somebody who is a deft manipulator of the media and his public image this los of information control will also be painful for him.

I have no idea if Trump will be convicted. I suspect it will be hard to get a conviction.

But he is now a fish out of water, at least for a while.

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The coming constitutional excitements in the United States

The last post over at my Substack was fairly UK-centric – indeed Anglocentric – in its approach to the issue of constitutional crises.

That post averred that we do not often have constitutional crises in the United Kingdom though we (too) frequently have constitutional dramas and excitements. But it also warned that we are never far from a constitutional crisis, and that only self-restraint and deference to checks and balances have stopped constitutional tensions converting into contradictions.

Glancing at the United States, however, the situation appears to be far more serious. Over the Atlantic there seems to be a fundamental threat to constitutionalism, the effects of which may become very obvious in the coming year.

A few years ago, a complacent liberal might have assured you that in a democracy the perils of illiberalism could be dealt with in two simple ways.

First: politically one could defeat illiberals by winning struggles within political parties and by winning elections between political parties.

Like the proverbial poor, illiberals are always with us, but they could be kept away from power by gatekeepers and electoral prowess.

But what happens when the gatekeepers fall away and then the legitimacy of elections is itself contested? When the electoral wells are poisoned?

This is the immense problem created by the Trumpite lie about the “stolen election”. What good is defeating illiberals in a general elections – and being seen to defeat illiberals by sizeable votes – if the legitimacy of those elections is denied?

The old certainty that the best way to defeat illiberals is by defeating them at the ballot box is no longer sound if the ballot box is not respected.

Second: even if the illiberals gained executive or legislative power, the individual would still have the protections of their civil liberties as guaranteed by an independent judiciary. In this way the minority would be protected against any apparent majoritarianism.

But what if the very notions of civil liberties and of an independent judiciary are also trashed? What if the systems of rights and of their enforcement are, like elections, robbed of their legitimacy?

Here the illiberals are fighting the second front of their overall campaign. Just as electoral verdicts against them are dismissed, so are judicial verdicts. Their objective is to have no constraints on what they can when they have power, to have nobody who can say “no”.

Of course, the illiberals have not so far won either of these battles. Trump and his supporters are still out of presidential power, whatever they say about elections results. Illiberals have also not discredited the systems of rights and their enforcement (and indeed they have mixed feelings, given they often wish to rely on their “right to bear arms” – as they interpret it).

But these parameters of constitutional action are being continuously contested, even if they are not yet destructed.

If the results of elections are not accepted, and if the rulings of the courts are respected, then the conventional political and judicial checks on illiberalism may be insufficient.

And if so, what happens?

Nobody knows – and even best guesses may not be accurate. Like Withnail and Marwood, we could be drifting into the arena of the unwell, making enemies of our future.

This post was prompted by the discussions about whether Trump should be disallowed on various ballots by reason of his participation as an “insurrectionist”.

Such an huge intervention would have implications.

The normal inclination would be to oppose such a restriction on political choice: that the way to defeat Trump is at the ballot box and, if then appropriate, in the courts that apply electoral law.

But, comes the response, what if Trump and his supporters flatly reject the legitimacy of the ballot box and the courts applying election law? What if that standard liberal constitutionalist stance is no longer valid?

It is a difficult if not impossible question to answer, at least by the application of usual liberal principles.

And so the new year is going to be interesting.

2024 has the potential to be a very exciting year constitutionally.

And as we know, constitutional law should not be exciting, it should be dull.

Brace.

Best wishes for the new year, and thank you for your support and following.

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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Of impeachments and indictments – how many of the criminal indictments against Trump are a function of the failure of the impeachment process

15th August 2023

There is an old Hebrew proverb which can be roughly translated as:

What is the difference between a wise person and a clever person?

A clever person can get themselves out of situations a wise person would not have got into.

There are many points of similarity (as well as of contrast) between Boris Johnson and Donald Trump.

One common feature is their manoeuvrability.

They can perhaps be seen to get themselves out of situations which more prudent politicians would not have got into.

The impression conveyed is a constant short-term living-on-ones-wits, with a deft dodge here and will-to-power there, which would exhaust most other mortals.

But.

Each improvisation comes with a potential cost, for what deals well with one situation may not be helpful in another situation.

And this is the difference between tactics and strategy.

To put this in more concrete terms: Johnson and his lawyers appear to have hit on a good defence to possible criminal liability over the Downing Street parties.

A previous blogpost sets out how useful this line – about the need to show leadership in a work situation – was in dealing with the police and any potential fines or prosecution.

But that defence came with costs.

One cost was that it provided no defence to his own birthday party: and so that was the one for which he was fined.

And another cost was that it offered no relief in respect of the House of Commons investigation: what was a good defence in one context had no traction in another.

Johnson’s attempts to “lawyer-up” for the committee fell flat, his legalistic and supposedly “devastating” submissions got him nowhere – nowhere, that is, other than outside of the House of Commons.

His tactics worked regarding the potential criminal liability, but his strategic approach to holding power was so inept that he went from being an incoming Prime Minister with a sizeable majority to not even being a member of parliament in less than a single parliamentary term.

A similar thing can perhaps be seen now in the United States.

Trump somehow headed off not one but two impeachment exercises: he may have been impeached twice, but he was not convicted for either.

The latter impeachment was, of course, for the events of 6 January.

And so he avoided the punishment set out in the constitution for political misconduct.

But where the impeachments have failed, it appears that indictments have taken up the political slack.

It is maybe difficult to imagine that any of the current indictments against Trump – even the document retention ones – would now exist had Trump been convicted on impeachment.

(Logically, of course, the events of 6 January would have been different had the earlier impeachment ended with a conviction.)

Had Trump been convicted on impeachment – even if he had then received a Ford-Nixon type pardon – and thereby formally dismissed from office and unable to return, then it is possible that it would have seen that he had been punished enough.

An exercise of political misconduct – his role in the events of 6 January – would have then been dealt through the constitutional mechanism of impeachment – and so would have had a political solution.

Instead that political misconduct has been converted into criminal charges.

This is not to say that the criminal charges are not sound and evidenced – some of the cases look very strong and Trump’s position looks correspondingly very weak. Trump is in serious legal jeopardy.

The point is that these indictments (with the possible exception of the document retention charges) are really doing the job that should have been with the second impeachment, had Trump and his Senate allies not manoeuvred for an acquittal.

That tactical success, however, offers no defence to the criminal charges he now faces.

And instead of disgrace and permanent removal from office, he now faces criminal liability and even prison time.

The Georgia charges look especially bad for him, as there seems no pardon would be available – either from a president or the governor of the state.

In essence: it would seem that the impeachment process failed in the very circumstances such a political and constitutional remedy should have succeeded.

And, if you will pardon the pun, that is quite an indictment of the US constitution.

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A note of caution for those clapping and cheering at the latest indictment of Donald Trump

8th August 2023

(Picture credit.)

The former president of the United States is facing serious legal trouble, with a serious criminal indictment which takes seriously his role in the 6 January insurrection, and – what is more – he also faces a serious judge taking her job seriously.

No matter how many times one types “serious” it is hard to overemphasise how serious this is for Trump and, by extension, for the United States generally and for the liberal constitutionalist notion that nobody, not even Donald Trump, is above the law.

But.

Taking this seriously also should also mean that those looking on should not give way to elation and celebration.

And this is because, as with all contested litigation, there is the possibility that this case can be lost as well as won.

It is too early to be clapping and cheering.

Imagine the following scenario: the prosecution throw everything they can at Trump. Each charge is evidenced and each witness comes up to proof.

Imagine that the case against Trump could not be framed better and could not be put before the court better.

Imagine a dream prosecution, one where everything goes right.

Imagine all that and then imagine, for this is litigation and all contested litigation is ultimately uncertain, that Trump is found not guilty.

This is not actually a fanciful point: the laws being relied upon by the prosecution are not commonly prosecuted and there is doubt as to the reach of those laws.

And Trump will be fighting for his political life – and whichever lawyers he manages to employ the duration of the trial will also be seeking the best possible presentation of the defense.

There is a non-trivial possibility that Trump may be found not guilty.

What this would mean – or at least what Trump and his supporters will take it to mean – is not that Trump has escaped condemnation and conviction.

It would instead be taken to mean complete and absolute vindication of Trump both in respect of the incidents of 6 January and of his framing of the prosecution as a “witch trial”.

The consequences of such a vindication will be profound and lasting.

Of course, this possibility does not mean that the prosecution should not go ahead.

Nothing in this post should be taken to mean that the prosecution should be aborted.

The point of this post is not about prosecution practice and discretion: indeed, as far as one can tell, the prosecution is doing a good, impressive job.

The point of this post is to counter the jubilation at the indictment.

This is high-stakes litigation, in a case which may (as they say) make law.

Perhaps the prosecution wins and, after exhausting all and any appeals, Trump is held to be criminally liable for his role. If so, those opposed to Trump can then clap and cheer.

But we are not yet near that outcome, and the implications of the prosecution not succeeding need to be taken seriously too.

A great deal rides on this case, and the outcome is not certain.

Brace, brace.

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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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Why the dropping of the REUL sunset clause may be very bad news for Rejoiners

11th May 2023

There is a glorious, telling passage in the new book from Anthony Seldon about Boris Johnson.

It is the day of the Brexit referendum result:

“Boris Johnson had expected Remain to win: ‘Holy s**t, f**k, what have we done?’ he uttered under his breath on hearing the result. […]

“‘Oh s**t, we’ve got no plan. We haven’t thought about it. I didn’t think it would happen. Holy crap, what will we do?”

What will we do, indeed.

As a Canadian diplomat remarked at the time: the Brexiters were the dog that had caught up with the car.

And that has pretty much been the general position since: what do we actually do with the possibility of divergence from EU law and policy?

Because there have been few answers to that question, there have been a succession of simplistic, gesture-ridden proposals.

For example, the Johnson government promoted a Bill that would mean that all retained EU law would be repealed automatically on a given date: a so-called “sunset clause”.

As Brexiter ministers could not think of anything specific to repeal, they decided to repeal everything, all at once.

This was silly.

The unintended consequences of sudden removals of forty-five years worth of technical legislation would have been horrific.

And this sudden removal ignored the fact that much of that legislation had been crafted and shaped by United Kingdom ministers and officials in our interests and to meet our needs.

The proposed legislation was a reckless exercise in superficial politics.

The government, now recovering some of its wits under the new Prime Minister Rishi Sunak, has now announced that the sunset clause will be ditched.

This is a sensible and welcome move.

Some who want the United Kingdom to rejoin the European Union may want to gloat at the government’s reversal.

But.

Rejoiners should perhaps be worried instead.

For this shift – like the Windsor framework – is a signal that Brexit silly season may be coming to an end.

And that long-term, fundamental divergence is about to begin.

The government is now getting real – and realistic – about Brexit.

The clowning legislation of Jacob Rees-Mogg is being dumped.

Of course: some Brexiters are upset at this symbolic sunset being itself sunsetted.

For them the politics of Brexit is just about symbols and gestures.

And so they too are quite unaware that the real Brexit is now beginning.

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