The United Kingdom state and the asymmetry of information flows

19th October 2021

There is asymmetry in the United Kingdom state (and no doubt other countries) when it comes to information flows.

On one hand: we have the strict official secrets legislation, almost useless freedom of information legislation, and a neat and cosy political-media compact where things can be made routinely – even casually – public without accountability or attribution.

On the other hand: we have extensive surveillance and interception powers by which the state can have access, as and when it wan to almost all information about any individual.

The goal of the modern state is to know as much as possible about individuals, while ensuring individuals know as little as possible about the state.

For just as Frank Wilhoit once defined political conservatism“There must be in-groups whom the law protects but does not bind, alongside out-groups whom the law binds but does not protect” – the same is true of the state more generally, but with information flows.

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Lord Chancellor, there is already a mechanism for the law to be changed: it is called Parliament

18th October 2021

Usually when something daft about policy is reported in the Sunday papers, you can sort-of work out the chain of miscommunication.

For example: minister to ‘special adviser’ to time-poor reporter on a background (and thereby to be re-worded) basis.

There is little wonder that the final report is often, well, inexact.

But.

In yesterday’s Telegraph, there was a report based on an on-the-record interview with Dominic Raab, the new lord chancellor and justice secretary.

And as an on-the-record interview, the usual disclaimers do not apply.

This would be what the minister actually said (or a close approximation).

News reporters can be guilty of many sins, but they rarely make up direct statements, and still less quotations.

And the lord chancellor and justice secretary is reported to have said something very striking indeed:

‘Asked about his plans to reform the Human Rights Act, Mr Raab revealed that he is devising a “mechanism” to allow the Government to introduce ad hoc legislation to “correct” court judgments that ministers believe are “incorrect”.’

The scare-quotes are lovely – but they do indicate these are the words that Raab actually used, as opposed to the rest which may be paraphrased.

Just read that statement again.

And think about it.

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First: it is not for ministers to change the law on the basis of what they think are ‘correct’ or ‘incorrect’ court judgments.

This is about as basic a breach of the separation of powers as one can imagine.

Just as judges should not make policy decisions instead of ministers, ministers should not make judicial decisions instead of judges.

If a minister disagrees with a judgment then that is one thing – but it is not for the minister to gainsay the judge on the correctness of the law.

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But that is not even the strangest thing about the statement.

Raab wants to devise ‘mechanism’ for ministers to make these ‘corrections’ – and not parliament.

But it should be parliament, operating under the doctrine of parliamentary supremacy, that should make or unmake any law in these circumstances – and by the means of primary legislation.

What Raab is proposing is a separate ‘mechanism’ where (a) laws can be made or unmade by ministerial decision and (b) that decision will be based on a minister subjectively thinking that a judicial determination is ‘incorrect’.

And note: this is not just for any old laws.

Oh no.

This is for those laws where a court – usually a senior and experienced judge or panel of judges – has found that there has been a breach of fundamental rights.

If any legal ‘corrections’ should not be done in a fast-track way, without parliamentary involvement and on the basis of mere ministerial opinion, then it should not be where a court has found there to be breaches of fundamental rights.

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In essence, what the lord chancellor and justice secretary is actually proposing is that a minister can by executive fiat reverse a judgment on the basis of a subjective opinion about ‘correctness’ when a court has found there to be a breach of a fundamental right.

Think about that.

And who is proposing this?

The very cabinet minister who has a constitutional role, recognised in statute, of protecting the rule of law.

Maybe the minister was misquoted or misunderstood, but there has not been any correction or clarification of the Sunday press report.

So presumably Raab is therefore happy with how he has been reported.

But.

There is already a mechanism where the other elements of the state can respond to such (perceived) judicial over-reaches.

It is called parliament.

And it is for parliament to decide how to respond – and to do by primary legislation.

And not ministers.

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Or in the words of the the government’s former chief lawyer:

 

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When the justice system is in crisis, Dominic Raab should not be using finite ministerial time and scarce departmental resources to attack the Human Rights Act

17th October 2021

Sunday again, and another Sunday press piece about how the new justice secretary and lord chancellor Dominic Raab will do something-or-other against the Human Rights Act.

The criminal justice system in England and Wales is in crisis.

The ‘crisis’ word is not used easily: but we do have a serious situation the outcome of which is not certain.

Trials are now not taking place for years after the alleged offences; there are not enough courts or enough lawyers for hearings to take place; victims, witnesses and defendants (some of whom will, of course, be innocent) have the stress of delays and uncertainty as an everyday factor in their lives.

One would think sorting out this predicament would be the priority – perhaps the absolute priority – for the incoming justice secretary and lord chancellor.

On the face of it he is in the strong position.

He is deputy prime minister, and so he has a strong position in cabinet and is well-placed to take on the treasury for more funding.

He is a qualified lawyer with actual experience of practice, and so has the potential insight of knowing how law works in practice rather than just as a thing in the news.

He could – as this blog averred recently – become one of the great modern lord chancellors.

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The ministry of justice is not a big department in Whitehall terms, and it is has little purchase on the parliamentary timetable.

A bill to ‘overhaul’ the Human Rights Act will be instead of ministry of justice legislation on more practical (and pressing) concerns.

Civil servants and ministers working on Human Rights Act ‘overhaul’ are necessarily doing that instead of something more useful.

Resources being used for Human Rights Act ‘overhaul’ are also necessarily diverted from something more useful.

And not since the days of Mackay, Irvine, Falconer and Clarke have we had a lord chancellor in such a strong political position within cabinet and with the prime minister.

Think of the good that this deputy prime minister could do for the justice system as a whole.

Think of it.

And now remember that this lord chancellor’s priority is contriving a fight with ‘Europe’ in respect of a symbolic assault on the Human Rights Act.

The sheer triviality of these relative priorities is enough to make sensible people weep.

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Last year judges were too activist, and now they are being reined in – but neither claim is correct

16th October 2021

Those who write about the politics of the judiciary in the United Kingdom have their very own two-for-one offer.

First, you write about whether the judges are too activist and need to be reined in.

Then, after a while, you write about how the judges are no longer too activist and have been reined in.

And loop.

Over at Prospect – the only United Kingdom current affairs magazine to take law seriously (and where I, ahem, currently have a column), there was this cover story back in March 2020.

The sub-headline asked us solemnly: have the judges overplayed their hand?

It was a great, well-researched and detailed article, and it rewards careful reading.

But.

I thought it was misconceived, and I said so in the April 2020 issue.

My contention was that there were (and are) two different things.

The first is the political-media narrative of ‘judicial activism’ – and this has a life of its own.

And then there is the mundane plodding everyday reality of the work of the administrative court and of public lawyers, where ‘ambitious’ points invariably fail and conservative judges certainly do not want to make policy decisions or trespass outside the judicial arena.

The two things have little in common.

Thrilling narrative v boring reality.

(Administrative law and public law are names for the special area of law which provides the legal obligations and powers of public bodies and the rights of those whose seek to challenge those public bodies, usually by ‘judicial review’.)

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Anyway,  Prospect now has a piece – lo-and-behold – explaining how the judges have been reined in:

“The government wanted to rein in the Supreme Court. Now it may not need to.”

Well, what a surprise.

This is not to say the piece is not great, well-researched and detailed – it is – and again it rewards careful reading.

But also – as before – it is in my view misconceived.

The mundane plodding everyday reality of the work of the administrative court is just as before.

As usual ‘ambitious’ points invariably fail and conservative judges still do not want to make policy decisions or trespass outside the judicial arena.

What has actually happened is that the political-media narrative has swung around.

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‘Judicial activism’ has long been a political-media rather than a legal event.

The two Miller cases are exceptional – dealing with distinctive (and literally unprecedented) constitutional predicaments and were (and are) not representative of the general casework of the courts.

The last real bout of judicial activism in administrative law ended in the early 1990s, with cases like M v Home Office (a decision far more significant in general public law terms than either Miller case).

And even that 1980s/1990s bout was nothing compared to the big shifts in 1960s, where cases such as Ridge v BaldwinPadfield, and Anisminic created public law as we now know it.

Other than the extraordinary but unique Miller cases, public law has generally been dull for the last few years.

(I know this because I became a lawyer at the turn of the century so as to do public law, and it really has not been an activist area of law.)

The fact that the recent government-supported review into reforming judicial review was such a damp squib was because it was based on what the courts were actually doing – and not on what the political-media narrative said the courts were doing.

Almost all the leading cases are still from the last century.

The main principles are still those asserted in the 1960s and then articulated in the 1984 GCHQ case: irrationality, unreasonableness, and procedural irregularity.

However: wait another year or so and there will again be earnest concern about ‘judicial activism’.

Then some time after that the judges will be ‘reined in’.

And so on – until it is perhaps finally realised that the media-political narrative of ‘activist judges’ has a life of its own, and is not closely connected with the general public law work of the courts.

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The Brexit compact: the EU does not mind the UK getting the credit, as long as the EU gets what it wants

15th October 2021

There is a lovely quote from Ronald Reagan:

‘On my desk in the Oval Office, I have a little sign that says: There is no limit to what a man can do or where he can go if he doesn’t mind who gets the credit.”‘

(Source)

And this describes more-or-less where we are now with Brexit.

The European Union does not care what the political and media supporters of the United Kingdom say or do.

But it knows the United Kingdom government cares desperately what its political and media supporters say or do.

So we are now in the situation where there is a convenient compact.

The European Union decides what will happen at each stage of Brexit so as to protect its interests and those of member states, especially Ireland.

Speedy Article 50 notification without prior negotiation; sequencing; the joint declaration; the financial settlement; the exit agreement; the trade and cooperation agreement; the Northern Irish protocol proposals, et cetera.

And in turn, the United Kingdom can call each stage a triumph for its hard bargaining, and so get the domestic coverage it craves.

Everyone is a winner.

(Or they think they are.)

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Understanding the secrecy of the United Kingdom over its proposals for the Northern Irish protocol

14th October 2021

We are told that the United Kingdom government has provided its proposals to the European Union for changes to the Northern Irish Protocol.

We can assume this to be true – else the European Union would say that they have not received such proposals.

(It is sad we cannot trust the word of the government on this without express or implicit corroboration.)

But these proposals do not appear to have been made public.

This cannot be explained by the usual ‘cards close to the chest’ excuse – as the European Union know what those proposals say.

So there must be another reason.

And the only possible reason appears to be is that the United Kingdom government does not want the people of the United Kingdom – or the press of the United Kingdom – to know what is in those proposals.

Just think about this.

Brexit was supposed to be about the United Kingdom people ‘taking back control’ from the European Union.

But now the United Kingdom government is allowing the European Union to be privy to proposals on what happens with one part of the United Kingdom – and not the people who live and work there.

It is an extraordinary situation, if you think about it.

This is the reality of ‘taking back control’.

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A hard look at the latest Brexit speech of Lord Frost

13th October 2021

Yesterday the Brexit minister David Frost gave a speech – and it is a speech that is worth considering carefully.

One reason to consider it carefully is that – unlike many ministerial speeches (and articles) that are produced by advisors and other functionaries – it is plain that this speech is the product of the minister’s mind.

As such, the speech has more historical and probative value that the usual erratic yet dry sequences of banalities, evasions and misdirections that constitute most ministerial communications.

We have an actual insight into one key minister is thinking (or not thinking) at this key moment, and this is rare, and we should appreciate it.

And as he is the minister who negotiated the two Brexit agreements – the withdrawal agreement and the trade and cooperation agreement – an insight into his thought (and lack of thought) is especially important at this time.

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The explicit inspiration for the title of yesterday’s speech is a pamphlet by the eighteenth-century Whig writer and politician Edmund Burke.

And yesterday’s speech is, in turn, expressly a sequel to Frost’s Brexit speech in February 2020, which was also named after a publication by Burke.

In that February 2020 speech, English-born Frost described Burke as ‘one of my country’s great political philosophers’.

Burke was Irish.

And Burke died in 1797, before the Act of Union between Great Britain and Ireland.

This is just not a debating point: the slip is indicative of the shoddy combination of showiness and shallowness – about Ireland and other matters – in both of Frost’s speeches.

The Burke cited is the Burke of the quotation dictionaries, and of the beginnings and conclusions of C-grade A-level history essays, and not the Burke of history.

The Burke of history would probably have impeached this illiberal government in an instant.

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The two Frost speeches, looked at together, reveal tensions.

For example, the February 2020 speech praised agreement negotiation at speed.

Referring to the then-prospective trade and cooperation agreement, 2020 Frost said:

‘…we can do this quickly. We are always told we don’t have enough time. But we should take inspiration, I think, from the original Treaty of Rome back in 1957. This was negotiated and signed in just under 9 months – surely we can do as well as that as well as our great predecessors, with all the advantages we have got now?’

But 2021 Frost does not like agreement negotiation at speed: the Northern Irish Protocol was ‘drawn up in extreme haste in a time of great uncertainty’.

The problem here is that there is no deeper thought beneath the phrases employed.

Frost has a fine phrase for negotiation at speed, and he has a fine phrase against negotiation in extreme haste.

But he does not realise nor care that the two phrases conflict: they are both simple expedients to get him through to his next paragraph.

This explains why during the Brexit negotiations Frost has been so constantly wrong-footed.

There is no substance, for all the paraded erudition.

The big negotiation taking place here is not between the United Kingdom and the European Union, but between the David Frost of 2020 and the David Frost of 2021.

And, somehow, both are losing.

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Looking more closely at yesterday’s speech, you will see that it is structured (superficially) as a sequence of five ‘points’:

‘First to say that Brexit has changed our international interests and hence will change our patterns of European relationships – not necessarily fundamentally, but significantly. Second, that Brexit means competition – we will be setting a different path on economic policy. Third, that Brexit was about democracy – it is a democratic project that is bringing politics back home. Fourth, that the EU and we have got into a low-equilibrium somewhat fractious relationship, but that it need not always be like that – but also that it takes two to fix it. And fifth and finally, that fixing the very serious problem we have in the Northern Ireland Protocol is a pre-requisite for getting to a better place.’

Each of these points, however, turn out to be exercises in characterisation.

The United Kingdom position is characterised, and the European Union position is characterised.

Each characterisation is loaded and self-serving: the United Kingdom is portrayed as blameless and misunderstood, and the European Union is depicted as ignorant and even spiteful.

These characterisations are so extreme that both are better described as mischaracterisations.

And so the characterisations dissolve on closer examination as nothing more than excuses and accusations.

For example, take the issue of policy.

At one point Frost says that the United Kingdom will develop more substantial policy relationships with some European Union countries and not others, rather than the European Union as a whole.

But then he complains that the European Union is too rigid in binding the member states together in matters of policy:

‘In most EU member states many important things can’t be changed through elections – trade policy, monetary policy, fiscal policy, important elements of immigration policy, indeed some important aspects of industrial policy.’

Frost does not seem to realise that the United Kingdom is – and will be treated as – a ‘third country’.

The tactic of trying to circumvent the European Union and with engaging member states directly did not work during the Brexit negotiations, and there is no reason to believe it would work now.

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But the most important part of this speech is about Northern Ireland.

Here he makes some general contentions about sovereignty and the role of the European Court of Justice.

He then insists that the import of these contentions is that the Northern Irish protocol needs to be replaced.

In a way this is a reversal of the usual caricature of continentals being obsessed with airy abstractions, in contrast to our robust Anglo-Saxon empiricism.

For the complaint as articulated by Frost does not amount to much more than a general objection to the European Court of Justice on conceptual grounds.

And, in the meantime, the European Union is proposing a range of practical measures to give efficacy to the Protocol but without removing the minor and residual role of the European Court of Justice.

And so he is wrong-footed again.

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The one thing in common between the two speeches is that Frost is brashly defiant in his support for Brexit.

He is certain that it was a historical necessity that the United Kingdom had to break free.

This, in turn, means he sneers at the European Union for not understanding the true nature of Brexit and its implications.

But both the 2020 and 2021 speeches reveal that the real failure to understand the implications of Brexit are with Frost and other United Kingdom ministers.

The European Union, on the other hand, seem to understand the (current) United Kingdom government all too well.

Frost complains about lack of trust: ‘we are constantly faced with generalised accusations that can’t be trusted and are not a reasonable international actor’.

But these accusations are not ‘generalised’ – instead they are, to use a phrase, ‘very specific and limited’.

And, according to statements today from a former Brexit adviser, the accusation of bad faith is well grounded.

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So, yes.

Frost’s speech has historical and probative value.

But it is not an impressive piece of work.

Characterisations (and mischaracterisations) do the work of propositions; accusations pile upon excuses; assertions are implicitly undermined by other assertions; and (ahem) very specific and limited concerns are dismissed as too general to matter.

And so the true historical and probative value of the speech is not as an insight into the thinking of the government at this stage of Brexit, but to its lack of thought.

Here it should be noted that Frost relies on the (supposed) popularity of Brexit as its ultimate justification:

‘That’s why I don’t see anything wrong with Brexit being described as a populist policy. If populism means doing what people want – challenging a technocratic consensus – then I am all for it.’

The wise counterpoint to this populism, of course, was once put as follows: that our ministers and representatives owe us their judgement – and that they betray us instead of serve us if they sacrifice their judgement to public opinion.

And who made this compelling counterpoint so eloquently?

Edmund Burke.

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Why does it matter if the United Kingdom government breaks international law? And do such a breach really mean the Rule of Law is under threat?

12th October 2021

Yesterday many celebrities of legal Twitter were engaged in a detailed discussion about whether the government of the United Kingdom was really threatening ‘the rule of law’.

(Celebrity in legal Twitter is akin to what Jasper Carrott once said of the disc jokey Ed Doolan: world-famous in Birmingham.)

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The discussion was prompted by this thought-provoking tweet and thread from @SpinningHugo:

https://twitter.com/SpinningHugo/status/1447447283570774017

The proposition is as follows: (a) nobody disputes that the United Kingdom breaking international law is a bad thing; (b) but the reason it is a bad thing is not because it offends the ‘rule of law’.

The proposition contains a clever and subtle distinction, and the tweeter (who I do not know personally) puts it forward with characteristic charm and the confidence that is an endearing quality of their Twitter account.

But I fear it is not entirely correct.

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What is correct is that the phrase ‘the rule of law’ can be deployed almost unthinkingly.

And the notion of a thing offending ‘the rule of law’ can also be too easily adopted.

Not every unlawful action by a government is an assault on the ‘the rule of law’.

A government can commit a tort or some other civil wrong; a public authority may act outside of its powers; and agents of the state can commit criminal offences.

That in each instance the courts are capable of holding the relevant entity or individual to account is an example of the rule of law working, rather than it being subverted.

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What is also correct is that ‘international law’ is not like other sorts of law.

For example, much of it exists without any practical means of enforcement or even adjudication.

At law school, I heard an eminent professor describe international law as ‘a fiction’.

There is a saying that domestic law is a matter of law, foreign law is a matter of fact, and international law is a matter of fantasy.

And there is another saying that if a rule is not capable of enforcement then it is not really a ‘law’.

If these sayings have any purchase, then an assertion that there has been breach of international law may perhaps have a political or normative meaning, but it does not necessarily have much legal meaning.

And so a breach of international law by a nation state is not by itself enough to say that the very principle of ‘the rule of law’ – which is attached to all law, domestic and international – is being attacked.

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And, for completeness, ‘the rule of law’ is not always necessarily a good thing.

Many evil things – from slavery to torture – can be placed on a legal basis, and compliance with such laws is not a good thing.

To the extent that we should care about the principle ‘the rule of law’ then other principles are at least as important, such as equality, due process, accountability, democracy, legitimacy, the separation of powers, universal human rights, and so on.

The rule of law, and nothing else, can sometimes be indistinguishable from tyranny.

*

But.

I think @SpinningHugo makes two errors.

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The first error is to suggest (by implication) that the breach of international law by the United Kingdom is not capable of being an attack on the principle of ‘the rule of law’.

There are breaches, and there are breaches.

And some breaches can be trivial or substantial examples of non-compliance, and some breaches can be intended or designed to undermine systems (if they exist) of enforcement and adjudication, and may also create a moral hazard that discredits the legal regime more generally.

Such breaches not only mean a rule has been broken, but that the very rules themselves are placed into peril.

In essence: some breaches of international law are also demonstrations that a state actor simply does not believe that legal rules apply to them.

And as ‘the rule of law’ – if it means anything – means that all are subject to the law, then – logically – such an act of open disavowal can only violate that principle.

In essence: any state actor is capable of breaching international law in a manner that undermines the general principle that the law should be obeyed.

Even the United Kingdom.

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The second error is to aver that the recent (and ongoing) post-Brexit conduct of the United Kingdom is not itself a threat to ‘the rule of law’.

(So not only is the United Kingdom capable of breaking international law here in a way that is a threat to the rule of law, but that it is actually doing so.)

The United Kingdom government last year sought to legislate so as to deliberately breach obligations it had entered into under the Northern Irish protocol.

The protocol provides legal obligations on the United Kingdom (and the European Union):

(a) that were freely entered into,

(b) that are capable of enforcement and adjudication through an agreed formal process; and

(c) which have been placed into domestic law by statute.

The Northern Irish protocol is therefore, by any meaningful definition, ‘law’.

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Last year the United Kingdom government was not about to breach the Northern Irish protocol by accident or through recklessness, or on the basis of a grey area of interpretation.

The United Kingdom government intended to breach the the Northern Irish protocol – by deliberately using domestic legislation.

This was, in essence, the United Kingdom government asserting that a legal obligation did not bind it.

Since that threatened (but withdrawn) threat the government has not been so blatant in its commitment to law-breaking.

Yet it is still seeking ways for it to avoid or ignore a legal commitment it entered into, on the basis of a belief that some legal commitments do not apply to the United Kingdom.

This instance of subversive intent, if translated into solid political action, is a threat to ‘the rule of law’.

It is not just that the United Kingdom government will break a legal commitment.

It is also not just that the United Kingdom government does not care that it will break a legal commitment.

It is because the United Kingdom government is intending to break a legal commitment on the basis that it does not believe that it should be bound by that legal commitment.

For such a move not only is a breach of a particular rule, but a fundamental repudiation of the general principle that a legal command should be obeyed.

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Perhaps some may say that some legal commands should not be obeyed.

But we should not fool ourselves into thinking that such disobedience is not a breach of ‘the rule of law’.

It is a breach of ‘the rule of law’ – but it is a breach that you think does not matter.

It is to assert that ‘the rule of law’ sometimes does not matter absolutely.

And that – well – is a different proposition to saying that a breach of international law cannot be a breach of ‘the rule of law’.

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The Brexit Policy of Admiral Boom

11th October 2021

You will remember from Mary Poppins the character of Admiral Boom.

In the first Poppins book of 1934 the admiral is introduced early, almost as the first absurd or magical element of the story:

‘…Mr Banks popped his head out of the window and looked down the Lane to Admiral Boom’s house at the corner.

‘This was the grandest house in the Lane, and the Lane was very proud of it because it was built exactly like a ship.

‘There was a flagstaff in the garden, and on the roof was a gilt weathercock shaped like a telescope.’

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Given the problems of the United Kingdom government in procuring a post-Brexit trade flagship, perhaps building one in a garden, with a flagstaff, is not as absurd or magical in 2021 as it would have been to readers in 1934.

But in the book there is no time gun.

The cannon was devised for the 1964 film:

And as you will remember, the firing of the cannon is regular and loud and a cause of few moments’ inconvenience.

But ultimately the cannon fire is inconsequential: the vases and the pictures are put back as before, and the characters carry on as before.

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Admiral Boom is now, it seems, in charge of Brexit policy.

On a regular basis – usually at the weekend for the excitement of the Sunday press – there is an explosion.

Article 16 of the Northern Irish protocol will be triggered, or something.

There is then a sudden flurry of a frenzy, but soon the political actors carry on as before.

This is not to say that Article 16 will not get triggered – the United Kingdom government has done stranger things during Brexit.

And it is not to say that – under cover of Article 16 – a deal could not be done by the European Union and the United Kingdom – for realpolitik can take many forms.

But it is to say these regular threats of triggering Article 16 are being regarded as only as loud and momentarily inconvenient as the firing of Admiral Boom’s cannon.

Either Article 16 should be triggered or it should not be, but the performative politics of regularly threatening to do so should be avoided.

Article 16 is intended for urgent situations – but this long run up indicates a lack of urgency.

(And Article 16 does not say what those currently wanting to trigger it thinks it says, as this blog has previously averred.)

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The current Brexit minister David Frost – who is the one usually saying that Article 16 will be triggered – is not in a credible position.

Here are his tweets from when the agreement was signed.

‘excellent deal with the EU’

‘the jurisdiction of the European Court of Justice ends’

‘a fully independent country once again’

The current news is that Frost is citing the (very limited) role of the European Court of Justice in the protocol as the basis for ‘a significant change’.

 

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So we have the preposterous negotiation of Frost against Frost.

The Frost of 2020 who not only trumpeted the Brexit deal in general but that it ended the role of European Court of Justice in particular against the Frost of 2021 who now says the role of that court is fundamentally important.

And somehow in this negotiation both Frosts are losing.

Both were/are wrong.

The Frost of 2020 did not want to admit the small continuing role of the European Court of Justice.

The Frost of 2021 does not want to admit that the small continuing role of the European Court of Justice is of almost no practical importance.

The European Court of Justice is a sham issue – it is a contrived, bad faith attempt to find something – anything – to open up the protocol.

As an exercise in misdirection, it is up there with the Chewbacca defense:

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The current politics of the United Kingdom have a surreal quality – where things are better illustrated by references to Mary Poppins and South Park than by citing precedents from political history.

We have a Brexit agreement negotiated and celebrated as ‘excellent’ by the same minister who now says it is so flawed that it needs to be re-negotiated.

Like the (literally) ship-shape house introduced at the beginning of Mary Poppins, what should seem very odd has very soon become very normal.

Yet, as the attorney in South Park avers in another context, ‘it does not make sense.’

And the key to understanding so much of current law and policy of United Kingdom is that it does not make sense, but it is happening anyway.

Brace, brace.

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Hard questions for liberal sensibilities – the play White Noise and its implications

10th October 2021

*Spoiler warning for the play White Noise*

In the play White Noise – currently showing at the Bridge Theatre in London – there is what the programme calls ‘an extreme proposition’.

This blogpost is about that ‘extreme proposition’ – and please only read on if you have seen the play or do not mind the key plot point being spoiled.

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*Spoiler warning for the play White Noise*

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In the play, set in America, the black male character, an artist, proposes to sell himself into temporary slavery to the white male character, a (supposedly) liberal professor.

The play then shows how that transaction affects all involved.

For the liberal professor, for example, slave ownership seems to come naturally, and he swiftly adapts to exercising the ‘rights’ of a slave owner.

Indeed, all four characters swiftly – and convincingly – adapt.

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Watching this play unfold prompted a number of thoughts and recollections.

One was this recent tweet:

https://twitter.com/TweetsByBilal/status/1445681197317689351

The second was reading about the (in)famous Stanford prison experiments and the Milgram experiment where it it appears a number of individuals also adapted quickly to behaviours that were cruel.

The third was an insightful comment by the philosopher Richard Rorty about Nineteen Eighty-four: that the last third of the book makes sense if you see it as not about Winston Smith, but about O’Brien – from the perspective of the torturer, not the tortured.

The fourth was a comment I once heard attributed to another philosopher, Isaiah Berlin, that the most difficult question to put to many British people was whether they would have collaborated with a Nazi occupation.

The fifth was to the valuable work of David Olusoga and others in highlighting how prevalent and routine slave ownership was in the United Kingdom until the 1830s:

And the last thought was about my recent posts on slavery and the lawyers – about how lawyers and other professionals and business people casually provided the infrastructure for the slave trade and widespread slave ownership:

https://twitter.com/davidallengreen/status/1271696745836228608

https://twitter.com/davidallengreen/status/1272069550746546176

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What the play shows is the ease with which notions of slave ownership – and attendant cruelty – can be revived in a contemporary setting.

One of the other characters – a white lawyer – does not prevent this transaction – and indeed her law firm provides a deed of transaction for the parties to sign.

Whether such a transaction would be void under the United States constitution or by reason of public policy is not tested.

For the parties, it is enough that the deed does provide for legal rights and obligations.

The solemn formal legal document says a thing, and so the parties regulate their conduct accordingly.

And, far from the transaction being voided by the law, the play suggests that the police are more respectful of the ‘slave’ – for he is now the property of a white person, and so under his protection.

The law adapts, the law recognises, the law provides.

And so one of the many disturbing points about this extraordinary play is – in addition to the effects on the characters – is the plausibility about how the law – both in terms of the law of property and policing – would let this happen.

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Back in August this blog had a post setting out other areas where the law and lawyers facilitated and facilitate a range of horrible situations.

We are always only a step or two away from the law being there to enable cruelty – indeed, there are many areas of human activity from interrogation and prisons to the treatment of animals – where dreadful things happen out of sight and out of mind, with the full protection of law.

Civil liberties and human rights and humane treatment are all fragile standards.

It is not only ‘other’ people who will clap and cheer at humans being systemically inhumane.

It is not only ‘other’ people who will just carry on with a shrug and without a care at humans being systemically inhumane.

For most of us it will only be noise.

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Each post takes time, effort, and opportunity cost.

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This law and policy blog provides a daily post commenting on and contextualising topical law and policy matters.

*****

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