9/11 x 20

11th September 2021

The general lot of law and policy in the last twenty years has not been a happy one.

Torture used and regularised; an invasion and occupation that not only had no legal basis but also greatly discredited politics itself; the growth of the surveillance state; and the general illiberal turn to nationalistic populist authoritarianism.

All this followed the terrorist attack twenty years ago today.

That these things followed that attack cannot be disputed, as a matter of chronology.

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But what about causation?

Did 9/11 cause the illiberal turn?

Anyone with an interest in the subject will have a view.

But I am afraid I think the illiberal turn would have happened anyway.

There was never any rational connection between 9/11 and the Iraq invasion – and so there would have just been another pretext instead of the ‘war on terror’.

Those with power will torture if they can get away with it – and how the United Kingdom so readily participated in torture would not surprise anyone with knowledge of what the British did in Kenya and Northern Ireland in the post-war period alone.

Those with power did not need a reason to use and regularise torture: they just need an excuse.

And the developments in computer and communications technology since 2001 would have meant the state seeking more surveillance powers, regardless of the attack on the twin towers.

So in essence: it is plausible that all the bad things in law and policy that have happened since 9/11 would have happened anyway.

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The sordid return of ‘the will of the people’

10th September 2021

This government is abandoning manifesto commitment after manifesto commitment.

This is notwithstanding that, in a representative parliamentary democracy, it is only by manifestos that we have anything that approximates to mandates for a majority party returned in a general election.

Such manifesto commitments are not, it seems, binding commitments on the government.

But.

Elsewhere in government, the ‘will of the people’ is being invoked – and perhaps in the mist sordid and disgusting way imaginable to any any sensible and humane person:

Because of this policy, fellow human beings will die.

There will be those who will be dead tomorrow who otherwise would not be dead but for this policy.

This policy is not in any manifesto.

The invocation of ‘it is what people want’ is nothing more compelling than speculation.

But it is enough.

Because ‘it is what people want’ then other people will die.

This is a ‘pick and choose’ approach to representative democracy.

Things that had been explicit in a manifesto on which people people had actually voted are casually discarded.

And by reason of the slogan ‘it is what people want’ lives of fellow human beings will be just as casually discarded.

The common feature is executive arrogance.

Ministers believe they can do as they wish to anyone, regardless of actual mandates.

This does not mean well for our democracy.

Brace brace.

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How the government has bounced this week’s tax hike through parliament like it bounced through the Brexit deals

9th September 2021

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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It is easy to get trade deals – if you accept what you are offered, and drop what you want

8th September 2021

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.

(This was not my fault.)

In the words of the WTO website:

“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:

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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Why ‘legally ringfenced’ is a phrase used by political knaves to take you for a fool

7th September 2021

Another late-night revelation about our current government-by-essay-crisis:

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.

The current triple-lock on pensions likewise, and so on.

And so on.

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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To Brexit and back again: how political ‘mandates’ have returned to meaning nothing

6th September 2021

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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Why we should cherish the Supreme Court of the United Kingdom for complying with the Freedom of Information Act, when other public bodies would not have done

 

5th September 2021

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.

A pdf of the disclosure is here – and it rewards being read in full.

I was alerted to this disclosure by this thread from Adam Wagner.

And Joshua Rozenberg has set out a characteristically detailed post about the situation on his blog.

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.

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A bit like pizzas, in a way:

Source: The Onion

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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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David Frost’s crucial admission: ‘The difficulties come from the way the Protocol is constructed, not just the way it is being implemented.’

4th September 2021

Here is a speech from David Frost, the minister responsible for what follows from Brexit.

And here is a passage from that speech:

‘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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Trident and Scottish independence

2nd September 2021

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.

https://twitter.com/SebastianEPayne/status/1433151630157942785

https://twitter.com/SebastianEPayne/status/1433153845757104135

https://twitter.com/SebastianEPayne/status/1433154687482703873

https://twitter.com/SebastianEPayne/status/1433155450850136065

https://twitter.com/SebastianEPayne/status/1433163642665684994

 

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Dramatic stuff.

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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