This week’s political excitement about social care and national insurance seems familiar.
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If you set aside all the noise and drama, all that has happened this week is that the government has – at speed – got a huge tax increase past its political and media supporters.
Indeed, a number of those very political and media supporters have clapped and cheered.
There will be no meaningful reform to social care.
There has been no meaningful scrutiny of any proposals.
And, as this blog averred recently, it is political and legal nonsense to say that the extra revenue being raised will be ‘ring-fenced’ for health or social care.
Had this not been done at speed then the implications of the huge tax hike and lack of policy substance may have become apparent.
It has simply been a political smash and run.
A deft exercise in getting something unpalatable past your own political and media supporters.
And it has worked – if you understand it in these cynical terms.
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What makes this seem familiar?
Well.
It is almost the same model of what happened with the Brexit exit and relationship agreements.
They too were rushed through parliament so as to prevent any useful scrutiny from the government’s media political supporters.
The brisk pace meant that many issues were hidden from view – until it was too late.
And, at the time, the government’s political and media supporters clapped and cheered too.
Many are not clapping and cheering now.
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I was once a central government lawyer for two-and-a-half years, dealing with public procurement, freedom of information and general commercial matters.
And one of the tasks I had was to support the United Kingdom (and thereby European Union) negotiators on the revision to the WTO agreement on public procurement.
This was exciting: international trade law!
How wrong I was.
In the two-and-a-half years I assisted on the the revision to the WTO agreement on public procurement, I do not think the negotiation moved forward substantially one jot.
“Not long after the implementation of the GPA 1994, the GPA parties initiated the renegotiation of the Agreement according to Article XXIV:9 of the 1994 Agreement. The negotiation was concluded in December 2011 and the outcome of the negotiations was formally adopted in March 2012.”
So: 1994 to 2012.
Eighteen years – to revise an agreement already in existence and the revision of which most parties to the agreement broadly were in agreement with.
Eighteen years.
My two-and-a-half years was in the middle of that period, and that period were not much more than a splash in a river.
Negotiators came and went for all parties, and one suspects there was not anyone engaged with the end of the agreement who had been concerned with it from the beginning.
The one thing I learned was that international trade and commercial agreements can be slow: very slow.
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But international trade and commercial agreements can also be quick: very quick.
One way that can be quick is if they are rollover agreements, a copy-and-paste of what was in place before and which all the parties are happy with.
Another way is to just accept what is on offer and to drop any demand which will not be met.
Such capitulations can be done very quickly indeed.
And so here is today’s news:
Sky News can reveal that ministers have agreed to drop binding commitments to the Paris climate change agreement from the UK-Australian post-Brexit trade deal
Of course: a trade agreement with Australia sounds very glamorous.
The sort of news that would make certain people gladdened just because of the anglophone, commonwealth connotation.
But a new trade agreement entered into at speed, other than a rollover, will tend to be to the disadvantage of one party and not the other.
Any trade deal that is worthwhile for both or all sides will not be done at speed.
We were once told that ‘no deal’ was better than a ‘bad deal’ by those who now clap and cheer at any deal.
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Another late-night revelation about our current government-by-essay-crisis:
More detail on tomorrow’s manifesto-busting national insurance increase: * The hike will be branded a health & social care levy * It will be ‘legally ringfenced’ to prevent it being siphoned off by future govts * Unlike normal NI it will also be paid by working pensioners
The phrase ‘legally ringfenced’ is a legal and political nonsense.
It is a legal nonsense because nothing in the United Kingdom can, in any meaningful way, be ‘legally ringfenced’ .
This is because of the doctrine of parliamentary supremacy, which means a parliament can make or unmake any act of parliament.
Nothing – to use a similar dishonest phrase – can be ‘enshrined in law’.
Even if there were a provision put in a statute – with super-duper protections intended to prevent its repeal or amendment – the provision and all those super-duper protections could be repealed or amended with a simple parliamentary majority.
And it is a political nonsense for it is a trick that that has been played before and which has been exposed as trick before.
The international aid budget was, supposedly, legally ringfenced.
The fixed-term parliaments act was, supposedly, enshrined in law.
But still politicians use this trickery – and still too many nod-along by these impressive sounding phrases.
The claims ‘legally ringfenced’ and ‘enshrined in law’ do have a rhetorical purpose, of course.
They invoke the majesty of law to charge up what would otherwise be a banal political utterance.
An utterance intended to reassure waverers or even win over somebody who would otherwise be opposed.
And in that way, it is perhaps slightly significant that politicians still feel law has sufficient respect so that political statements can be framed as grand legal announcements.
But it is trickery all the same.
Any politician who uses the phrases ‘legally ringfenced’ and ‘enshrined in law’ is a knave – and a knave taking you to be a fool.
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Long ago, before 2016, ‘mandates’ were not taken that serious in the politics of the United Kingdom.
To the extent that a mandate from a general election made any constitutional difference, it meant that in practice (and by convention) the house of lords would not block anything that had been in a manifesto of the majority house of commons party.
There certainly was not any firm obligation on the government to bring each manifesto commitment to the floor of the house of commons, let alone pass any legislation.
And from time to time – for example, with the poll tax (‘community charge’) endorsed in the 1987 general election – a government will reverse a policy contained in a manifesto within the same parliament.
Because, long ago, mandates were seen as weak things in our representative, parliamentary democracy
And then.
And then came the 2016 referendum on membership of the European Union, which had a small though clear majority in favour.
This result – in a non-binding referendum – became ‘the will of the people’.
The result was a mandate that no person or institution would be allowed to gainsay.
If senior judges said that there needed an act of parliament for the Brexit notification to be made, they were howled at as ‘enemies of the people’.
Members of parliament opposed to the departure were similarly denounced.
An electoral mandate was no longer a weak thing.
The mandate was the strongest thing in politics.
A force so strong that nothing could stand in its way.
And then.
The United Kingdom departed from the European Union.
Now, the same government that insisted that ‘the will of the people’ was absolute is now seeking to renege on its manifesto commitments.
The international aid budget has been cut, and it looks like the ‘triple lock’ commitment and tax commitment are both going, perhaps this week.
The government no longer cares that much about mandates.
The government no longer cares about the will of the people as expressed through a ballot box.
Mandates are weak things again.
It has been a strange few years, politically.
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Bless the justices of the supreme court of the United Kingdom.
As you may be aware, there has been a substantial – and amusing, even embarrassing – disclosure under the freedom of information act of documents relating to the departure of former supreme court justice Jonathan Sumption.
My post is just a footnote to the disclosure and Rozenberg’s post – from the perspective of a former central government freedom of information lawyer.
And, in summary, the footnote is: bless.
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By which I mean no disrespect to the justices of our supreme court.
Quite the opposite: they should be cherished.
For they must be the only senior public sector officials who comply with the freedom of information act in the spirit in which the legislation is intended.
Senior figures at any other public body would have worked with their freedom of information officer to invoke cynically any exemptions to delay and/or block publication.
Indeed, most senior figures in public bodies would not have been so naive as to create things which are capable of being FOId in the first place.
If the freedom of information act worked as it was supposed to work than the sort of disclosures we now have from the supreme court would be commonplace throughout the public sector.
But it isn’t, because it doesn’t.
The freedom of information act is, in effect, an ornament not an instrument.
There is not real sanction for non-compliance or evasion – and any appeal will take years to get anywhere.
It is almost impossible to have disclosure from a public body against its will.
And it is actually impossible to do it short of years’ long process of appeals.
Everyone concerned knows this.
And non-disclosure letters from public bodies are the most dismal, unconvincing and insincere documents produced by public bodies.
Nobody produced in the production, dispatch and receipt of a freedom of information non-disclosure letter has any sincere belief in the contents.
The supreme court, bless them, has taken the scheme of the freedom of information act seriously – and thereby taken the rule of law seriously.
Good on them.
For even though there is no real risk of sanction – nor even compulsion – the supreme court has followed the act, and it made potentially embarrassing disclosures properly.
More than (yet another) ponderous extra-judicial speech about the ‘rule of law’ this disclosure by itself shows how the supreme court takes the rule of law seriously.
As a supreme justice once averred in another context: that is a relief.
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‘The difficulties come from the way the Protocol is constructed, not just the way it is being implemented.’
This sentence is not only key, it is crucial.
Of course, it is not enough for those who are sceptical of (or hostile to) the government’s Brexit policy to jeer that ‘you signed it’.
The onus is on anyone interested in the matter to be as constructive as possible – even if that is to resolve the mistakes of others.
But.
But but.
But but but.
It has to be said that this protocol was not only signed by this government, it was negotiated by this government.
The protocol is within an agreement for which this government campaigned for and obtained a mandate.
The protocol flows even from a change of policy made by this government against the ‘backstop’ policy of the previous prime minister.
And the person for the United Kingdom who was primarily responsible for negotiating and thereby the content of the protocol?
David Frost.
The problem we have now as a nation is that International agreements – like other legal agreements – cannot be set aside just because of a ‘bad bargain’.
Let the buyer beware, says the maxim.
Else there will be buyer’s remorse.
If a party to a negotiated agreement does not want to comply with a certain provision, then that party should not sign that contract.
For once it is executed, it is binding, for that is the intention of legal agreements.
We all know the rushed circumstances of how the United Kingdom signed the agreement.
And that time pressure was entirely self-inflicted – by the United Kingdom government.
It was as preposterous a situation then as it seems now.
But supporters of Brexit clapped and cheered at the time, and hailed ‘Brexit getting done’.
And now the government is stuck with what it signed.
Yes: one should be constructive if one can be as a critic of the government’s predicament.
But ultimately the government has to brace itself that it will have to comply with what it freely agreed to.
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Over at Prospect, my column this month is on the (to me) fascinating relationship between the law of intellectual property and fictional characters – in this case superheroes.
Enjoy – and please leave any (non-irksome) comments or questions below.
Imagine Whitehall obsessing about somehow salvaging a post-imperial policy delusion costing billions – which we cannot afford and probably serves no modern purpose.
But enough about Brexit.
This is a post about Trident.
In the event of an independent Scotland, what would happen with Trident?
(And for those who think Scottish independence ‘would never happen’, remember other things that would never happen, until they did – like Brexit.)
The Financial Times has published some information on what the current United Kingdom government sees as the options.
But from a constitutional perspective – rather than a defence policy perspective – the notion of the rump British state having some sort of ‘pocket’ in an independent country is a curious one.
Of course there are examples such as the Irish ports mentioned in the thread – or the two bases in Cyprus.
Such naval and related arrangements are not novel.
But.
There seems a difference in principle as well as scale in the notion that a base for nuclear warfare should in another independent country, where that country will be assuming the risk of being targeted by nuclear weapons in return.
That would be quite a significant thing to have within your polity over which you would not have any direct political control.
And given the propensity of post-Brexit politicians to overestimate their position on the world stage, one would not really want to take on the risk of the (literal and metaphorical) fall-out of nationalistic bombastic posturing.
That said: perhaps leasing the site to the London government during the necessary transition period could provide the very financial injection that would make independence more viable than otherwise.
And so it could be a boon for Scottish independence – as well as a predicament.
But on any view: what to do with an unwelcome nuclear warfare base in a newly independent state will raise constitutional and political issues – at least in the short-term.
At least Whitehall is thinking through these issues in advance.
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The word ‘accountability’ in a political context means that a person with political power is required to give, well, an account of what they do and do not do.
This in turn means that exercises in political theatre – such as dramatic resignations and sackings, or prime minister’s questions, and so on – are not examples of political accountability.
Indeed, they can often be a substitute for the minister explaining about what happened on their watch.
And general elections are not an exercise in practical accountability: even taking the electoral system into account, parties campaign on broad manifestoes and are not obliged to fulfil and mandate if elected.
The nearest we have in the United Kingdom parliament at Westminster to the means of practical political accountability are select committee hearings.
And to a certain extent this worked as an exercise in accountability: some further information was provided as to the circumstances of the evacuation from Afghanistan.
But rather than providing a full account of what happened, the foreign secretary often seemed uninformed and unaware, and he sought to hide behind long discursive answers unrelated to the questions asked.
Of course: by showing the vacuity of the foreign secretary the session was an exercise in political transparency, if not in accountability.
But there was nothing the committee could do – at least in the session – to require the foreign secretary to give a more complete and direct account of what happened.
And the session was not long – about an hour or so.
Yet this is the best we will get – the foreign secretary is now safe again from being probed closely as to what happened and did not happen.
We will return to ‘politics as normal’.
Perhaps one day, some earnest public inquiry will piece together a fuller account of what happened with Afghanistan.
And the time there is account, the relevant politicians will have long gone from being held to that account.
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Some would say that the story of the departure of the United Kingdom begins with the founding of the European Economic Community itself, or even of the European Coal and Steel Community.
For even then the supranational approach that the United Kingdom was to find so repugnant was obvious (see here).
Others can point to the accession of the United Kingdom to the European communities in 1973 or (a view with which I have sympathy) the treaty of Maastricht of 1992.
More recent start dates would be the referendum of 2016 or the timing and circumstances of the Article 50 notification in 2017.
It depends on the nature of the story you want to tell.
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This post looks at another starting-point.
The ‘Bloomberg speech’ of then prime minister David Cameron in January 2013.
Cameron, of course, is now little more than a pantomime villain in the story of Brexit, reduced to texting ministers and officials for commercial favours while the audience groans and hisses.
And the prospect of reading – still less sitting through – an old Cameron speech may not be a welcome one.
But.
This 2013 speech, when taken together with the ‘renegotiation’ of 2015-16, shows fault lines that later shaped how Brexit evolved in practice, and it is worth looking back at.
To the extent the speech is remembered now – if it is is remembered at all – it is because it contained the promise by the head of the then coalition government of an ‘in/out’ referendum, in the event that the conservatives won outright the next general election.
And that announcement is of significance as, unlike many political promises, it was carried out.
But also of significance is the framing of the announcement – what the speech did and did not say.
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One premise of the speech is that the referendum would be tied to a ‘renegotiation’ which, in turn, envisaged treaty changes for the benefit of all member states.
It would be this new ‘settlement’ that would then be promoted as part of the referendum campaign.
To the extent that there is a fundamental critique of the European Union it is in terms of ‘sovereignty’ and the ‘gap between the EU and its citizens’.
And to the extent that there is a detailed practical critique it is about the ‘unfair’ relationship between Eurozone members and member states such as the United Kingdom that were not part of the Eurozone.
The speech has structure and coherence – and, after the experience of Theresa May and then Boris Johnson, it is a strange feeling to read a prime ministerial speech that has structure and coherence.
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But.
There is a lot missing.
There is not a single mention of immigration – even though by the ‘renegotiation’ of 2015-16 this had become a perceived political priority.
This is because although the Eurozone crisis had begun, the perceived migration crisis (and the rapidly increasing domestic political support for UKIP) was in the future and as yet unknown.
Some now contend that Brexit was always about immigration and migration and ‘taking control’ of our borders – yet the issue is not mentioned once in the major speech that initiated the political process that led to the referendum.
There is also not a mention of ‘freedom of movement’ or indeed any of the ‘four freedoms’ that the European Union aver are integral to the single market.
For Cameron and the United Kingdom, the single market could be discussed and extolled without any reference to the foundational principles of that market.
It was almost as if the same single market was different things to the United Kingdom and to the rest of the European Union, described in different ways, and with each side talking past the other.
Ireland gets one brief mention – and is bracketed with the United Kingdom for having border controls against the rest of the European Union.
But there is nothing at all about how the single market and shared membership of the single market and the customs union meant there was no need for a regulatory or customs border on the island of Ireland.
There is also nothing about how shared European Union membership provided a solution to the hard political problems of the Irish border (and similarly there is no mention of Gibraltar either).
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And there is a complacency about treaty changes – an assumption that the fundamental reforms to the European Union that could only come about by amending the treaty texts would be an easy task in a tight time frame.
The referendum was to be in the ‘first half’ of the next parliament – in effect the entire process of renegotiation and referendum would need to take place between 2015 and 2017.
Looking back from 2021, we now know that there has been no new European Union treaty at all – the last general treaty is still that of Lisbon in 2007 – and there is no appetite for a new treaty and the politics it would entail.
But without treaty changes there was a severe limit to what could be achieved in a negotiation, especially against a strict deadline.
And so – unsurprisingly – the ‘renegotiation’ was damp and squibby.
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The Bloomberg speech revealed a lack of realism about what could be achieved from the beginning of the ‘renegotiation’ process, with expectations raised that could not be fulfilled.
And this had a significant political consequence.
For, from the very beginning of the referendum process, the government made no positive case for the United Kingdom to be part of the European Union as a matter of principle.
The government’s case was instead to be for the United Kingdom to remain part of the European Union on renegotiated terms and as part of a new overall settlement.
But when those renegotiated terms fell flat, and the new overall settlement failed to come into existence, then the government had nothing positive to argue and campaign for.
Indeed, given the lacklustre government campaign – directionless after the failure of the ‘renegotiation’ – it is remarkable that the referendum was as close as it was.
The government’s own run-up to the referendum, from the announcement of the referendum onwards, had been misconceived.
And you can see why this was by reading what was in – and what was not in – the Bloomberg speech of January 2013.
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