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.
****
Comments Policy
This blog enjoys a high standard of comments, many of which are better and more interesting than the posts.
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.
****
Comments Policy
This blog enjoys a high standard of comments, many of which are better and more interesting than the posts.
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.
*
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.
*
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.
*
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).
*
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.
*
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.
**
Hello there – please do support this sceptical Brexit blog – and do not assume it can keep going without your support.
If you value this daily, free-to-read and independent legal and policy commentary for you and others please do support through the Paypal box above, or become a Patreon subscriber.
***
You can subscribe for each post to be sent by email at the subscription box above (on an internet browser) or on a pulldown list (on mobile).
****
Comments Policy
This blog enjoys a high standard of comments, many of which are better and more interesting than the posts.
Over at the Foreign Affairs journal is this fascinating, well-argued article:
Intermittent terrorist attacks have blinded us to a deeper trend: the steady increase in the coercive power of the technocratic state. Technology has made organized rebellion virtually impossible in rich states, I argue in @ForeignAffairshttps://t.co/9zyhPb6kq4
From a liberal perspective, there are parts of the piece that are both convincing – and disturbing.
For example, the author Thomas Hegghammer avers that not only is the west better resourced:
‘Western governments have also proved to be less scrupulous about preserving civil rights than many expected in the early years of the war on terrorism. When faced with security threats on their own soil, most Western states bent or broke their own rules and neglected to live up to their self-professed liberal ideals.’
The gist of this seems true – and what is disturbing for the liberal is that it may well have been a ‘price worth paying’.
Hegghammer amplifies this point in respect of privacy laws and the surveillance state:
‘The reason information technology empowers the state over time is that rebellion is a battle for information, and states can exploit new technology on a scale that small groups cannot. The computer allowed states to accumulate more information about their citizens, and the Internet enabled faster sharing of that information across institutions and countries. Gadgets such as the credit card terminal and the smartphone allowed authorities to peer deeper and deeper into people’s lives. I sometimes serve as an expert witness in terrorism trials and get to see what the police have collected on suspects. What I have learned is that once the surveillance state targets someone, that person no longer retains even a sliver of genuine privacy.’
*
Hegghammer sets out that surveillance and the disregard for civil liberties are just one element of a general anti-terrorist strategy – alongside techniques, resources, intelligence, and the dynamics of the state-terrorist relationship.
And it is not clear whether it is an essential element.
Had Western governments and their citizens been more mindful (or to critics, precious) about their civil liberties, would it have meant that the other elements of anti-terrorism policy would not have worked so well?
And what would it have practically meant for Western governments to have been more ‘scrupulous about preserving civil rights than many expected in the early years of the war on terrorism’ rather than less?
Most liberals will accept that the state can do all sorts of things for the purpose of anti-terrorism, as long as it has a lawful basis and is subject to democratic and judicial supervision and the principle of proportionality, and it lasts no longer than necessary.
Would such requirements really have hindered the security services in their work?
*
To a certain extent Hegghammer’s argument has a flavour of ‘just so’ story – there is less terrorism now than before, and so what happened between then and now must explain why there is less terrorism.
But that said: Hegghammer’s observation that the state now has access to online information and communications data that makes it difficult-to-impossible to use electronic devices, media and payments for the purposes of organised terrorism is compelling.
However: terrorism, like other forms of human cruelty, adapts.
It may well be that we have not ascertained or imagined how the next generation of terrorists will work out how to be cruel.
But in the meantime: we will still have the surveillance state – and no state voluntary surrenders its powers.
Perhaps that was – and will continue to be – the ‘price worth paying’.
The price was a high one, all the same.
**
Hello there – please do support this sceptical liberal constitutionalist Brexit blog – and do not assume it can keep going without your support.
If you value this daily, free-to-read and independent legal and policy commentary for you and others please do support through the Paypal box above, or become a Patreon subscriber.
***
You can subscribe for each post to be sent by email at the subscription box above (on an internet browser) or on a pulldown list (on mobile).
****
Comments Policy
This blog enjoys a high standard of comments, many of which are better and more interesting than the posts.
A recent post on this blog set out why one should be sceptical of ministerial resignations – at least as a form of practical political accountability.
Many resignations – and sackings – are political theatre, and they are not instances of political accountability but substitutes for it.
The post averred that resignations still have their place, but that – all other things being equal – such resignations are not really about accountability.
No account ends up being given of how things went wrong, and why.
Instead there is a political CTL+X or CTL+Z and the political typing goes on as before.
*
That said, one famous ministerial resignation was that of Lord Carrington in 1982.
‘The Argentine invasion of the Falkland Islands has led to strong criticism in Parliament and the press of the Government’s policy. In my view much of the criticism is unfounded, but I have been responsible for the conduct of the policy.
‘I think it right that I resign.
‘As you know, I have given long and careful thought to this. I warmly appreciate the kindness and support which you showed me on Saturday. But the fact remains that the invasion of the Falkland Islands has been a humiliating affront to this country.’
‘The nation feels that there has been a disgrace. Someone must have been to blame. The disgrace must be purged. The person to purge it should be the minister in charge. That was me.’
He is generally regarded as having resigned for not having anticipated the Argentine invasion of the Falklands Islands.
Few historians now blame Carrington – and indeed the minister more responsible for signalling to Argentina that the United Kingdom may have a weak resolve to defending the Falkland Islands was the defence secretary, who stayed in his job.
*
Another resignation, though now less famous, was that of Estelle Morris as education secretary in 2002 – and it one of the most remarkable and refreshing political resignations of modern times.
‘I’m good at dealing with the issues and in communicating to the teaching profession. I am less good at strategic management of a huge department and I am not good at dealing with the modern media. All this has meant that with some of the recent situations I have been involved in, I have not felt I have been as effective as I should be…’
She resigned because she was not in the right job, and she said so.
And good on her – and it would be better if more people with political power were so candid.
*
The current foreign secretary Dominic Raab is criticised in today’s press for failures to engage properly with the issue Afghanistan in the run up to this month’s evacuation.
This is a serious charge – perhaps almost the most serious charge that could be made against a foreign secretary.
This is not just getting a foreign policy issue wrong – say, like what was alleged against Carrington – but not even engaging with it in the first place.
If the charge is correct then Raab cannot even give an account of what he did wrong and why made those errors, as he did not do anything.
He cannot offer any account, for there is no account to be given.
And so there cannot – literally – be accountability.
If he were to now resign in these circumstances, it should be more of an Estelle Morris resignation than a Lord Carrington resignation.
*
And just as resignations and sackings are substitutes (usually) for accountability, another things is stark.
If the newspaper report is accurate, being ‘totally focused on Brexit’ is a substitute for good policy and government.
**
Hello there – please do support this sceptical law and policy Brexit blog – and do not assume it can keep going without your support.
If you value this daily, free-to-read and independent legal and policy commentary for you and others please do support through the Paypal box above, or become a Patreon subscriber.
***
You can subscribe for each post to be sent by email at the subscription box above (on an internet browser) or on a pulldown list (on mobile).
****
Comments Policy
This blog enjoys a high standard of comments, many of which are better and more interesting than the posts.
The strongest argument for Brexit, if not the only one, was that it would enable the United Kingdom to have laws and policies regardless of our obligations under the treaties of the European Union.
Many – including you – will probably not think of that as much of an argument – and, indeed, it is not much of an argument.
But at least it is an argument which is internally coherent: as a member of the European Union the United Kingdom was subject to its European Union treaty obligations, and as a non-member, we are not.
To get from [x] to [y] could only be done by the means of Brexit.
The other arguments do not even make sense as a matter of internal logic.
For example, the argument from sovereignty did not make sense: the United Kingdom had sovereignty all along, else it would not have been able to make an Article 50 notification and repeal the European Communities Act.
And the argument of practicality also does not make sense, for even though we are no longer subject to its European Union treaty obligations, it appears that there is not any advantage to having this new freedom.
And, as this blog recently averred, there is no good reason for the United Kingdom to diverge from the European Union data protection regimes – and many good reasons for us not to do so.
So the United Kingdom did not need to do Brexit to regain sovereignty (as we already had it and never lost it) nor did United Kingdom need to do Brexit to make any substantial policy changes, as we do not seem to need to change policies.
As is often said, the post-Brexit United Kingdom really is the dog that caught the bus.
Yes: the United Kingdom can now have laws and policies regardless of obligations under the treaties of the European Union.
But there does not seem much point.
What a pointless thing to have done.
**
Hello there – please do support this sceptical Brexit blog – and do not assume it can keep going without your support.
If you value this daily, free-to-read and independent legal and policy commentary for you and others please do support through the Paypal box above, or become a Patreon subscriber.
***
You can subscribe for each post to be sent by email at the subscription box above (on an internet browser) or on a pulldown list (on mobile).
****
Comments Policy
This blog enjoys a high standard of comments, many of which are better and more interesting than the posts.
The primary purpose of a reasoned court judgment is not to be a historical document.
The primary purpose of a reasoned court judgment is for the here-and-now: it is a practical document to explain why the court made a particular order (or did not make an order) or otherwise disposed of the claim or matter before it.
To the extent to which that judgment contains anything of general interest to future generations of historians is (or should be) incidental
Yet.
Every so often there are judgments that you hope will speak to the ages.
Judgments to tell future generations about things in the here-and-now that they may not otherwise understand.
And the judgment handed down recently by Honorable Linda V. Parker of the United States district court for the eastern district of Michigan is such a judgment.
It is a judgment for the ages.
It is a judgment that (one hopes) will tell future generations that the American courts of our time had not gone completely mad.
It is a long judgment – but once you start reading it is compelling, and you are well into it before you realise.
The first paragraph is itself a banger:
And then it gets better, and better.
In essence: it sets out in readable detail how pro-Trump attorneys deceived the court again and again, and it sets out why that was again and again wrong.
Click on and read the judgment here – and (if it is the right word) enjoy.
**
Hello there – please do support this liberal and constitutionalist blog – and do not assume it can keep going without your support.
If you value this daily, free-to-read and independent legal and policy commentary for you and others please do support through the Paypal box above, or become a Patreon subscriber.
***
You can subscribe for each post to be sent by email at the subscription box above (on an internet browser) or on a pulldown list (on mobile).
****
Comments Policy
This blog enjoys a high standard of comments, many of which are better and more interesting than the posts.
Like a dog that caught the car, the United Kingdom government is wondering what to do with Brexit.
Today’s offering, reported in the Telegraph is overhauling or replacing or something to do with GDPR – the European Union’s detailed data protection regime.
The flavour of the suggestion is in these tweets:
Exclusive: Ministers are preparing to overhaul the EU GDPR rules and replace with new British data privacy laws
Oliver Dowden says will spell end to 'pointless' cookie requests and red tape for biz
The proposal has the usual signs of superficial thinking, with the ‘ending red tape’ and ‘row with Brussels’ lines that are the substitute for any serious policy thought.
In fact, the rows will not be with Brussels – the European Union and its businesses will be at ease with the United Kingdom erecting yet another non-tariff barrier against the interests of British businesses.
The rows instead will be with those British businesses, which will now have two lots of red tape to negotiate instead of one.
This is so bleedingly obvious that it really should not need typing out.
None of this is to say that the GDPR is perfect legislation – it certainly is not.
But compliance with one technical and complicated regime is onerous enough – multiplying such regimes just because we can is folly.
*
Ministers and their political and media supporters will clap and cheer at this exercise in nose-cutting in spite of a face.
The European Union, like bemused household cats, will just stare at the spectacle.
It is all rather silly, and rather depressing.
*
The United Kingdom’s digital economy will not so much turbocharged but torpedoed.
**
Hello there – please do support this critical law and policy blog – and do not assume it can keep going without your support.
If you value this daily, free-to-read and independent legal and policy commentary for you and others please do support through the Paypal box above, or become a Patreon subscriber.
***
You can subscribe for each post to be sent by email at the subscription box above (on an internet browser) or on a pulldown list (on mobile).
****
Comments Policy
This blog enjoys a high standard of comments, many of which are better and more interesting than the posts.
There are various means by which those with political power can evade accountability for what they do and do not do.
(By ‘accountability’ I mean those with political power being obliged to give an account for what they have done and not done.)
One means is by minimising or removing any formal checks and balances within our constitutional arrangements – answering to parliament, the independence of our courts, the effectiveness of judicial review, an impartial civil service, public service broadcasting and so on.
A second means is to disregard informal and non-legal self-restraints within the constitution – to ignore the ‘good chaps’ theory of the constitution, where so much depends on the willing observance of unenforceable conventions and rules of procedure.
A third means is to ensure that any special method of accountability – such as a public inquiry – is as delayed or limited as possible, if it takes place at all – and if it does take place, the ‘lessons learned’ are for another generation of politicians.
And a fourth is by means of rhetoric.
In particular, the increasingly regular occurrence of ministers and political appointees invoking ‘hindsight’.
In the commons, the prime minister responds to explanations of how he could have dealt with foreseeable things in a timely manner – regarding Brexit and other things – with the jibe ‘Captain Hindsight’.
The politically appointed head of the national health service test and trace programme told a parliamentary committee, with a straight face:
‘With the benefit of hindsight the balance between the supply and the demand forecast wasn’t right. Clearly that is true.’
And, now with Afghanistan, we have the foreign secretary explaining why he carried on taking a holiday during the fall of Kabul:
"With the benefit of hindsight, I would have been back earlier"
In most, if not all, of these situations the potential problems were bleedingly obvious in real-time, at the time.
What was required was not hindsight but foresight.
But we now have a group of politicians who have realised they can benefit from a special form of political herd immunity by deriding criticism as ‘hindsight’.
And this, in turn, provides them with a licence to not properly think things through at the time and to take decisions (or not take decisions) for reasons of perceived political expediency.
For they know, in the back of their minds, that when things go wrong all they have to say to critics:
‘…with the benefit of hindsight’.
*
A healthy polity does not greatly depend on formal constitutional instruments – and legalistic words in a document can only make so much difference.
A healthy polity instead depends on issues that can be characterised as ‘cultural’ as well as constitutional – the general sense of what those with political power can get away with.
And, as the very stuff of a political culture is largely words, symbols and communication, when that culture is debased then it becomes significantly more difficult to hold ministers to account.
If this trend continues, then our polity will be the worse for for it.
And this will not only be obvious with…
…well, hindsight.
**
Hello there – please do support this liberal and constitutionalist blog – and do not assume it can keep going without your support.
If you value this daily, free-to-read and independent legal and policy commentary for you and others please do support through the Paypal box above, or become a Patreon subscriber.
***
You can subscribe for each post to be sent by email at the subscription box above (on an internet browser) or on a pulldown list (on mobile).
****
Comments Policy
This blog enjoys a high standard of comments, many of which are better and more interesting than the posts.
…there was a settled political narrative – a ‘sacred timeline’ – where the forces of Remain and Leave battled for the future of the United Kingdom in the wider world.
For a long period, the forces of Remain had the ascendancy, and those forces grew complacent.
Then suddenly, the forces Leave had the upper-hand and they took their rare opportunity.
And on 23 June 2016, there was ‘the Snap’ where about half the political universe (48.2% actually) were cast into the political void.
But unlike the Marvel adaptation of this political crisis, ‘the Snap’ has not been reversed, despite the spirited attempts of Remain campaigners to travel back in time and revoke various things.
Still the ‘sacred timeline’ has nonetheless shattered, and there are now various multiplying narratives about Brexit.
In a few of these narratives, Brexit is going well and the dire warnings of Remain were mere projected fears.
In other narratives, nothing much has changed and there is a wonder at what all the fuss was about.
Some even have managed to escape fully into the past, and they spend their lives in a make-believe world of the 1950s.
In Remain narratives, Brexit is a plain disaster and the destructive events unfold issue by issue.
But the one common feature of all these variant timelines – the ‘nexus’ belief – is that the narrative validates the views of each person.
And so we now have a shattered, fragmented polity where concurrently we have contrasting – even contradictory – political narratives.
Is this sustainable?
Well.
In the less fantastical world of superhero comics such a dislocation is eventually followed by a cross-over event where various divergent storylines are somehow synthesised back into a single continuity.
(And then after a while that continuity will disentangle again, and so on.)
In the world of Brexit, however, there is little sign of such a synthesis.
If anything, the Remain and the Leave narratives are diverging further and further.
Any real-world crisis – infinite or otherwise – may not be enough to shake the Leave narratives.
And any real-world success will not be enough to shake the Remain narratives.
At least the Marvel cinematic universe resolved their ‘snap’ story before commencing their ‘multiverse’ stories.
Post-Brexit United Kingdom, being yet more ambitious, is doing both at the same time.
Brace, brace, brace, brace & ∞∞∞∞∞
**
Thank you for reading.
Please support this liberal and constitutionalist blog – and please do not assume it can keep going without your support.
If you value this daily, free-to-read and independent legal and policy commentary for you and others please do support through the Paypal box above, or become a Patreon subscriber.
***
You can subscribe for each post to be sent by email at the subscription box above (on an internet browser) or on a pulldown list (on mobile).
****
Comments Policy
This blog enjoys a high standard of comments, many of which are better and more interesting than the posts.
And then it gets better, and better.