The last of the legal correspondents, and the true crisis in the public understanding of law

3rd January 2021

At the end of last year two legal correspondents retired.

Owen Bowcott at the Guardian:

And Clive Coleman at the BBC:

It is an end of an era.

Yes, there are still full-time legal correspondents in the United Kingdom: at the Times and at the Financial Times.

But in both those cases the journalism is behind a paywall – and that is not an accident, as funding full-time specialised correspondents in any area is an expensive business, and if you want good specialised journalism in this internet age you do have to pay for it.

With the retirements of Owen Bowcott and Clive Coleman there is now no longer (as far as I am aware, and I would be delighted to be corrected) any full-time specialised legal correspondent at any news provider whose reporting is available generally to the public.

The nearest we have is Joshua Rozenberg, who is not exclusively attached to any news organ, providing reportage and comment at a number of titles and now on his own blog.

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Does this matter?

This demise of the legal correspondents comes at the same time where an understanding of how law works is as – if not more – important than ever.

Without legal correspondents it will be left to generalist journalists to report on, say, high-profile legal cases and the legal aspects of government policy.

And this in turn will increase the influence of (so-called) litigation PR specialists (who effectively provide copy to the media favourable to their clients involved in legal cases) and ministerial special advisers leaking spin-ridden and distorted accounts of law-related policy.

This is not to say there are not good generalist journalists reporting on legal matters but to observe that there will be an imbalance between the time-poor reporter without a bank of expertise and the well-resourced or well-informed but highly motivated source.

Having a specialised legal correspondent at a news title who was not reliant on PR or governmental sources meant there was detachment and reliability in their reports from court and the frontline of legal activity.

And this has now gone.

Something has been lost, and it will not be regained.

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The demise of the legal correspondents, however, comes at a time where reliable legal information is more freely available than freely before.

In the United Kingdom, for example, legislation is set out at the legislation.gov site and jusdgments at the BAILII site.

The Supreme Court has an outstanding site that not only provides case reports but also summaries and other useful information, and the UK judiciary site provides not only newsworthy case reports but also the judges’ sentencing remarks in high-profile and controversial cases.

It has never been easier for the spirited citizen to gain information about the law and to understand its application in particular examples.

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But.

Few lay people will bother – as screens full of dry text are daunting and the law is (or at least looks) complicated.

A screen suddenly full of legal verbiage is as scary or bewildering to a lay person as a page suddenly full of source code.

Legal information may well be free to all – but unless you have relevant experience and know your way round legal instruments and other legal documents, such access is only of theoretical value.

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But what of legal bloggers and tweeters?

Surely they (we) can step in and fill the gap between the law and the public understanding of law?

Here there are two problems.

Many leading legal bloggers and tweeters are of two types.

First, there are the legal academics – and many are as brilliant in explaining substantive ‘black letter’ law to lay people as they are to their lucky students.

But the academic exposition of substantive law is only one aspect of the public understanding of law – few legal academics will report from the courtroom in trials where there is little of academic interest, nor will they be routinely invited to Whitehall press briefings, nor develop sources such as judges and practitioners just for providing news.

And, analysis and commentary – however outstanding – is not the same as reportage.

Much the same can be said of the second group of legal bloggers and tweeters – legal practitioners such as barristers (and a few solicitors).

The additional problem with this second group is that – even more than academics who often need to show ‘outreach’ – such legal communication is voluntary and often haphazard.

Blogging and tweeting barristers (and solicitors) are not paid for explaining the law to the public and – with controversial legal topics – not compensated for the hassle and abuse they will get.

There will be uneven coverage – a lawyer will tend to only write about matters as and when they feel they have something to say about something they know about – and so this can lead to some areas of law being over-represented and other areas of law being neglected.

Blogging and tweeting lawyers  – both academics and practitioners – are a boon to the public understanding of law – but they (we) are no substitute for specialised full-time legal correspondents dealing with law-related news stories as they emerge on any topic, with detachment and perspective.

For that you need, well, full-time specialised legal correspondents at news organisations – and they are coming to an end.

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But there is an even more disconcerting problem, at this time of hyper-partisanship, ‘post-truth fake news’, and populism.

In the United States there are still many specialised courts and legal correspondents – and they have been diligent in exposing and reporting on the various abuses of law and legal process by President Donald Trump and his allies.

Each presidential assault on constitutional and legal norms in the United States has been documented and explained.

And it has made very little difference.

Many people do not care.

As this blog averred on New Year’s Eve – there is no point in the observant Benjamin the Donkey in Animal Farm being more public-spirited, if the other farm animals would not have cared less.

And so, in the United kingdom, even if every news title had a squadron of legal correspondents detailing the many abuses and misuses of law from this supposedly ‘law and order’ government then – looking at the United States – there is no reason to believe it would make any difference.

This, therefore, is the crisis in the public understanding of law referred to in the title of this blogpost.

The crisis is not that we are at the end of specialised reporting of legal news.

The crisis in the public understanding of law is that most of the public do not want to understand law.

A significant portion of the public do not want to understand the law, or care about how the law is misused or abused.

And how do you promote the public understand of law when so few of the public care?

*****

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The four ways the government of the United Kingdom is abusing and misusing the law – and the reason the government is getting away with it

2nd January 2021

Those with political power tend to want more power, and those who want more power will tend to then abuse it.

This is not a new observation, and it is perhaps one which can be made of most if not all human societies.

The role of law and government is thereby not so often to enable such abuse of power, but to acknowledge the likelihood of abuse and to seek to limit or prevent it.

That is why those with power are often subject to conventions and rules, why there can be checks and balances, and why many political systems avoid giving absolute power to any one person.

That those with power want to use, misuse and abuse that power is not thereby a feature of the current government of the United Kingdom, but a universal (or near-universal) truth of all those who seek and have political power everywhere.

Those with political power will tend to try and get away with misusing or abusing it.

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The current government of the United Kingdom, however, is remarkable in just how open it is in its abuse and intended abuse of law, and in at least four ways.

And what is also striking is what has changed politically so as to enable them to be so open.

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First, the current government sought to give itself the power to break the law.

This was in respect of the Internal Markets bill, and the ability to break the law was stated as the intention by a cabinet minister in the house of commons.

This proposal led, in turn, to the resignations of the government’s most senior legal official and a law officer in the house of lords.

And then it was even supported by a majority of the house of commons.

The proposal has now been dropped – and some would say that it was only ever a negotiating tactic.

But even with this excuse, it was an abuse of legislation and legislation-making, requiring law-makers to become law-breakers, and signalling to the world that the government of the United Kingdom does not take its legal obligations seriously.

There was no good excuse for this exercise.

Yet the government sought to do it anyway.

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Second, the government of the United Kingdom is seeking to place itself, and its agents, beyond the reach of the law.

This can be seen in two bills before parliament: one effectively limiting the liability of service personnel for various criminal offences, including for torture and other war crimes, and the other expressly permitting secret service agents to break the law.

 

From one perspective, these two proposals simply give formal effect to the practical position.

It has always been difficult to prosecute members of the armed services for war crimes.

And domestic secret service agents have long relied on the ‘public interest’ test for criminal activity (for any criminal prosecution to take place there are two tests: whether there is sufficient evidence, and whether the prosecution is in the public interest, and guess who routinely gets the benefit of the latter).

And secret service agents abroad have long had legal immunity back in the United Kingdom, under the wonderfully numbered section 007 of the Intelligence Services Act 1994.

The primary significance of these two current proposals is that the de facto positions are being made de jure.

The government believes (rightly) that it can legislate to this effect and get away with it.

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The third way – when the government cannot legislate to break the law or to make it and its agents beyond the law – is for the government to legislate so as to give itself the widest possible legal powers.

Again, this is not new: governments of all parties have sought wide ‘Henry VIII clauses’ that enable them to bypass parliament – legislating, and amending and even repealing primary legislation by ministerial decree.

But what is new here is the scale of the use of such legislation – both the pandemic and Brexit have been used as pretexts of the government to use secondary legislation for wide ranging purposes – even to limit fundamental rights without any parliamentary sanction.

And as I have argued elsewhere, there is no absolute barrier under the constitution of the United Kingdom to an ‘enabling act’ allowing ministers to have complete freedom to legislate by decree.

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The fourth way is the flip-side of the government seeking more legal power.

The government is seeking ways to make it more difficult, if not impossible, for it to be challenged in the courts.

This can be done formally: by reducing the scope of judicial review or the reach of the laws of human rights and civil liberties, or by ‘ouster’ clauses, limiting the jurisdiction of the courts.

It can be done practically (and insidiously): by creating procedural impediments and by cutting or eliminating legal aid for such challenges.

It also can be achieved by the government either promoting or not challenging attacks on the judiciary and the role of courts in holding executive power to account.

If the government cannot break the law, or make itself immune to the law, or give itself wide legal powers – it certainly does not want citizens to be able to challenge it.

Of course, this impulse is also not new – and examples can be given of governments of all parties seeking to make it more difficult for legal challenges to be brought.

But again, what is different from before is the openness of these attempts.

There is no self-restraint.

The government is going to get away with as many of these barriers as it can.

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The big change is not that those with political power want to abuse it – and to stop those who can check and balance that abuse.

That is a problem no doubt as old as law and government itself.

What is remarkable is how the United Kingdom government is now so brazen about it.

The government just does not care about being seen doing this – and if there is any concern or even outcry – that is regarded as a political advantage.

The ‘libs’ are ‘owned’ and those with grins will clap and cheer.

In this current period of hyper-partisanship there is no legal or constitutional principle that is beyond being weaponised.

What perhaps restrained the United Kingdom government – and other governments – from being so candid in their abuses and misuses of power was once called ‘public opinion’.

People cared about such things – or at least those in government believed people cared.

But, as this blog averred on New Year’s Eve, what happens if a public-spirited donkey does tell the animals on the farm that power is being misused or abused – and the animals still do not care.

‘The animals crowded round the van. “Good-bye, Boxer!” they chorused, “good-bye!”‘

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And this brings us back to the key problem for liberalism – and for the principles of transparency and accountability – in this age of Brexit and Trump.

It is not enough to point out the lies and misinformation – or to show the misuses and abuses of law – if a sufficient number of people do not care that they are being lied to or misinformed and that the law is being misused or abused.

And there is nothing the media or commentators can do about this (though we should still be public-spirited donkeys anyway).

This requires a shift – not in media and communications – but of politics and of political leadership.

Only if enough citizens care about the government abusing or misusing the law will the government stop doing it, at least so openly.

And until then the United Kingdom’s indifference towards the rule of law and other constitutional norms will just be a register of the public’s general indifference about the government getting away with it.

*****

This law and policy blog provides a daily post commenting on and contextualising topical law and policy matters – each post is published at about 9.30am UK time.

Each post takes time, effort, and opportunity cost.

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The Koch Snowflake of Brexit

New Year’s Day, 2021

Alan Moore, in the appendices to his graphic novel From Hell, uses Koch’s Snowflake to illustrate the historiography of his subject.

Moore’s point is that every book on his subject – either with new minor details or imaginative theories – cannot go beyond certain central facts. 

New details and new interpretations can be added infinitely – but the significant events were finite.

(On the Whitechapel murders, do click and buy here for Hallie Rubenhold’s outstanding book.)

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What Moore says can, of course, be said also of any group of connected historical events.

Take, for example, Brexit.

The central events of Brexit are: (1) the decision to hold a referendum on 23 June 2016; (2) the referendum result; (3) the Article 50 notification on 29 March 2017; (4) the extensions of the Article 50 period; (5) the United Kingdom departing the European Union on 31st January 2020; and (6) the end of the transition period yesterday, 31st December 2020.

These are the six tips of the Koch’s Snowflake of Brexit.

Now and in the future there will be far more detail: about the politics and the negotiations, about the content and effects of legal instruments; and about the impact of decisions made.

And there will be endless interpretations of what actually happened in these five or so eventful and exhausting years, and endless explanations of why it happened.

The amount of new detail on Brexit, and of new ‘takes’ about Brexit, is no doubt infinite.

But all the new details and all the new interpretations will not change the six central (procedural) facts of Brexit.

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None of those six events were inevitable, of course.

Each event could have happened differently, or even not happened at all.

But those were the events that did happen, and so they are the things which ultimately do need to be explained.

And, as this blog has previously averred, even if certain crucial events of Brexit had turned out differently, we could have ended up with just a different form and manner of Brexit.

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Now that this stage of Brexit is over – though the overall story of Brexit is far from being at an end, and may never end – it is time for me to finally complete the book I was asked to write on Brexit.

You can pre-order the book here – though the actual publication date will be later than April.

I had been waiting for the outcome of the transition period, and to discover whether there would be a relationship agreement, or not

I needed to know what would be the sixth tip of the Koch’s snowflake of Brexit.

The circumstances of the departure from the transition arrangements may explain more about else has happened since the 2016 referendum.

Of course, I could have told the story of Brexit with indifference to what happened at the end of the transition period – and there are many excellent books on Brexit already published.

But that was not the story I wanted to tell – or was able to tell in book form.

The story I want to tell as a book is how the United Kingdom went from a general election in 2015, where each major party was in support of European Union membership, to the United Kingdom leaving not only the European Union, but also (with the end of the transition period, and with special arrangements for Northern Ireland) the Single Market and Customs Union, in just five years.

People in the future will be struck by how much happened, so quickly.

(As some people are already.)

Brexit is the most extraordinary political-policy-legal-constitutional-economic group of connected events in the modern history of the United Kingdom.

It should be an interesting story to try to tell, and I hope for you to read.

A Happy New Year to all my readers and followers.

*****

This law and policy blog provides a daily post commenting on and contextualising topical law and policy matters – each post is published at about 9.30am UK time.

Each post takes time, effort, and opportunity cost.

If you value the free-to-read and independent legal and policy commentary both at this blog and at my Twitter account please do support through the Paypal box above.

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Comments are welcome, but they are pre-moderated.

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Benjamin the Donkey from Animal Farm, and the limits of political commentary

New Year’s Eve, 2020

Tomorrow Animal Farm and other works by George Orwell come out of copyright in the United Kingdom.

To mark this, and to do something different on this blog on New Year’s Eve, this is a tribute to – and critique – of Benjamin the donkey as a political commentator.

(And, just for the rest of today, the many quotations in this post are ‘fair dealing with a work for the purpose of criticism or review’ under the Copyright etc Act 1988.)

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Benjamin has qualities which would (or should) make him a great political commentator.

First – and this is key:

‘Benjamin could read as well as any pig…’

In Animal Farm, the two key textual reveals to the other other animals are because Benjamin can read as well as any pig:

‘”Fools! Fools!” shouted Benjamin, prancing round them and stamping the earth with his small hoofs. “Fools! Do you not see what is written on the side of that van?”‘

And:

‘[Benjamin] read out to her what was written on the wall. There was nothing there now except a single Commandment. It ran:

ALL ANIMALS ARE EQUAL
BUT SOME ANIMALS ARE MORE EQUAL THAN OTHERS’

Benjamin is capable of understanding, and explaining, anything done by those who have sought and obtained political power – it is not for him obscure or forbidden knowledge.

He is not of the political world, but can understand it as well as those who are powerful.

And so he can see and describe what is actually happening:

‘…Benjamin was watching the movements of the men intently. The two with the hammer and the crowbar were drilling a hole near the base of the windmill. Slowly, and with an air almost of amusement, Benjamin nodded his long muzzle.

‘”I thought so,” he said. “Do you not see what they are doing? In another moment they are going to pack blasting powder into that hole.”‘

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Second, Benjamin is impartial in a hyper-partisan world:

‘Old Benjamin, the donkey, seemed quite unchanged since the Rebellion. […] About the Rebellion and its results he would express no opinion. When asked whether he was not happier now that Jones was gone, he would say only “Donkeys live a long time. None of you has ever seen a dead donkey,” and the others had to be content with this cryptic answer.’

And:

‘The animals formed themselves into two factions under the slogan, “Vote for Snowball and the three-day week” and “Vote for Napoleon and the full manger.” Benjamin was the only animal who did not side with either faction. He refused to believe either that food would become more plentiful or that the windmill would save work. Windmill or no windmill, he said, life would go on as it had always gone on–that is, badly.’

And:

‘Only old Benjamin refused to grow enthusiastic about the windmill, though, as usual, he would utter nothing beyond the cryptic remark that donkeys live a long time.’

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Third, Benjamin has a stock of knowledge and historical perspective:

‘Only old Benjamin professed to remember every detail of his long life and to know that things never had been, nor ever could be much better or much worse–hunger, hardship, and disappointment being, so he said, the unalterable law of life.’

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And Benjamin is (for want of a better word) humane and (privately) kind:

‘Nevertheless, without openly admitting it, he was devoted to Boxer; the two of them usually spent their Sundays together in the small paddock beyond the orchard, grazing side by side and never speaking.’

And:

‘…Benjamin urged Boxer to work less hard’.

And:

‘…Benjamin warned [Boxer] to take care of his health’.

And:

‘…Benjamin [laid] down at Boxer’s side, and, without speaking, kept the flies off him with his long tail.’ 

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So: what more could you want in a political commentator?

Benjamin is worldly yet impartial, and he has historical perspective and a stock of knowledge, and he also is (at least privately) kindly.

But Benjamin fails as a commentator.

His impartiality has hardened into quietism, and he leaves everything too late.

Of course, Benjamin does not actively collaborate with those with political power:

‘He did his work in the same slow obstinate way as he had done it in Jones’s time, never shirking and never volunteering for extra work either.’

But he also does nothing when it would have made a difference to stop abuses of power.

For example, the constant re-wordings of the commandments which culminate in the addition of ‘BUT SOME ANIMALS ARE MORE EQUAL THAN OTHERS’ is left to others to read who do not have the donkey’s understanding.

And when Boxer is taken to the glue factory, Benjamin’s late realisation is futile.

His private kindness made no difference to this very public and brutal act of power.

Had Benjamin been engaged from the beginning of the rebellion, the pigs may have got away with less and Boxer would have enjoyed a retirement.

(That is, if Benjamin had not – ahem – disappeared.)

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T. S. Eliot famously turned-down Animal Farm for publication, writing to George Orwell that all the farm really needed were ‘more public-spirited pigs’.

That is, better conduct and more self-restraint by those who achieve and exercise political power – the essence of Toryism.

But left to themselves, those who achieve and exercise political power will tend to abuse that power – and that is why wiser people than Eliot also want checks and balances.

And one check and balance is an independent media.

A media which is worldly, impartial, and has historical perspective and a stock of knowledge, and which also – if not kindly – is certainly not cruel.

But as the example of Benjamin shows, even these wonderful qualities are not enough, if not constantly applied.

What was perhaps needed on the farm was not ‘more public-spirited pigs’ but a more public-spirited donkey.

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Yet – this is a question which Orwell does not really address – the animals would also need to have cared if the donkey had told them what was happening in time.

For the experience of Brexit and Trump indicates that even if Benjamin had been more vigilant about abuses of power, many of the animals may not have cared.

‘The animals crowded round the van. “Good-bye, Boxer!” they chorused, “good-bye!”‘

So commentary may not be enough: there is limited point to explaining about lies and abuses of power if people do not care that they are being lied to and power is being abused.

And that is the fundamental challenge of politics in the age of the promised windmills of Trump and Brexit.

But providing commentary is a public good in itself, even if it is not heeded.

And so this blog will carry on into the new year as the work of a public-spirited donkey.

Happy new year to all my readers and followers.

*****

This law and policy blog provides a daily post commenting on and contextualising topical law and policy matters – each post is published at about 9.30am UK time.

Each post takes time, effort, and opportunity cost.

If you value the free-to-read and independent legal and policy commentary both at this blog and at my Twitter account please do support through the Paypal box above.

Or become a Patreon subscriber.

You can also subscribe to this blog at the subscription box above (on an internet browser) or on a pulldown list (on mobile).

*****

This blog enjoys a high standard of comments, many of which are better and more interesting than the posts.

Comments are welcome, but they are pre-moderated.

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The Bill implementing the Trade and Cooperation Agreement is an exercise in the Government taking power from Parliament

30th December 2020

Today Parliament will be expected to pass, in one single day, the legislation implementing the Trade and Cooperation Agreement into domestic law.

This situation is exceptional and unsatisfactory.

The bill is currently only available in draft form, on the government’s own website.

As you can see, this means that ‘DRAFT’ is inscribed on each page with large unfriendly letters.

And we are having to use this version, as (at the time of writing) the European Union (Future Relationship) Bill is not even available parliament’s  ‘Bills before Parliament’ site.

The draft bill is complex and deals with several specific technical issues, such as criminal records, security, non-food product safety, tax and haulage, as well as general implementation provisions.

Each of these specific technical issues would warrant a bill, taking months to go through the normal parliamentary process.

But instead they will be whizzed and banged through in a single day, with no real scrutiny, as the attention of parliamentarians will (understandably) be focused on the general implementation provisions, which are in Part 3 of the draft bill.

And part 3 needs this attention, as it contains some remarkable provisions.

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Clause 29 of the draft bill provides for a broad deeming provision.

(Note a ‘clause’ becomes a ‘section’ when a ‘Bill’ becomes enacted as an ‘Act’.)

The intended effect of this clause is that all the laws of the United Kingdom are to be read in accordance with, or modified to give effect to, the Trade and Cooperation Agreement.

And not just statutes – the definition of ‘domestic law’ covers all law – private law (for example, contracts and torts) as well as public law (for example, legislation on tax or criminal offences).

It is an ingenious provision – a wave of a legal wand to recast all domestic law in whatever form in accordance with the agreement.

But it also an extremely uncertain provision: its consequences on each and every provision of the laws of England and Wales, of Northern Ireland, of Scotland, and on those provisions that cover the whole of the United Kingdom, cannot be known.

And it takes all those legal consequences out of the hands of parliament.

This clause means that whatever is agreed directly between government ministers and Brussels modifies all domestic law automatically, without any parliamentary involvement. 

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And then we come to clause 31.

This provision will empower ministers (or the devolved authorities, where applicable) to make regulations with the same effect as if those regulations were themselves acts of parliament.

In other words: they can amend laws and repeal (or abolish) laws, with only nominal parliamentary involvement.

There are some exceptions (under clause 31(4)), but even with those exceptions, this is an extraordinarily wide power for the executive to legislate at will.

These clauses are called ‘Henry VIII’ clauses and they are as notorious among lawyers as that king is notorious in history.

Again, this means that parliament (and presumably the devolved assemblies, where applicable) will be bypassed, and what is agreed between Whitehall and Brussels will be imposed without any further parliamentary scrutiny.

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There is more.

Buried in paragraph 14(2) of schedule 5 of the draft bill (the legislative equivalent of being positioned in the bottom of a locked filing cabinet stuck in a disused lavatory with a sign on the door saying ‘Beware of the Leopard’) is a provision that means that ministers do not even have to go through the motions of putting regulations through parliament first.

Parliament would then get to vote on the provisions afterwards.

This is similar to the regulations which the government has been routinely using during the pandemic where often there has actually been no genuine urgency, but the government has found it convenient to legislate by decree anyway.

Perhaps there is a case that with the 1st January 2021 deadline approaching for the end of the Brexit transition period, this urgent power to legislate by decree is necessary.

But before such a broad statutory power is granted to the government there should be anxious scrutiny of the legislature.

Not rushed through in a single parliamentary day.

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There are many more aspects of this draft bill which need careful examination before passing into law.

And, of course, this draft bill in turn implements a 1400-page agreement – and this is the only real chance that parliament will get to scrutinise that agreement before it takes effect.

You would not know from this draft bill that the supporters of Brexit campaigned on the basis of the United Kingdom parliament ‘taking back control’.

Nothing in this bill shows that the Westminster parliament has ‘taken back control’ from Brussels.

This draft bill instead shows that Whitehall – that is, ministers and their departments – has taken control of imposing on the United Kingdom what it agrees with Brussels.

And presumably that was not what Brexit was supposed to be about.

*****

This law and policy blog provides a daily post commenting on and contextualising topical law and policy matters – each post is published at about 9.30am UK time.

Each post takes time, effort, and opportunity cost.

If you value the free-to-read and independent legal and policy commentary both at this blog and at my Twitter account please do support through the Paypal box above.

Or become a Patreon subscriber.

You can also subscribe to this blog at the subscription box above (on an internet browser) or on a pulldown list (on mobile).

*****

This blog enjoys a high standard of comments, many of which are better and more interesting than the posts.

Comments are welcome, but they are pre-moderated.

Comments will not be published if irksome.

Six reasons why those who want to shift the relationship between the United Kingdom and the European Union need to now think in five-year cycles

29th December 2020

Imagine you are in some remote rural area where the bus or train only comes on a given day at a given time.

This is what it will be like for those who want to substantially change the relationship between the United Kingdom and the European Union once the trade and cooperation agreement is in place.

But instead of the the weekly or monthly bus or train, this cycle will be every five years.

And if that opportunity is missed, then it will be another five years before the opportunity comes around again.

This is because of one major reason – and also (perhaps) because of five other reasons.

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The first reason, as this blog set out yesterday, is that the European Union itself works in five-year cycles.

Each European Commission is appointed for five years and each European Parliament is elected for five years.

The Presidents of the European Council tend to also have five-year terms.

And after each five-year cycle, the European Union project is then (in effect) handed over to a new European Commission and President of the European Council.

It would thereby appear to be no accident that the review cycle for the trade and cooperation agreement is five years.

This means the European Union’s relationship with the United Kingdom will be dealt with in a manner that is convenient to Brussels and not London.

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This leads to the second reason.

The United Kingdom is no longer sufficiently important to disrupt the normal European Union political and policy life-cycle.

This will come as a shock to many in the United Kingdom who are used to demanding time and immediate attention from the European Union.

From the supposed re-negotiation of 2016, through the withdrawal negotiations, to the relationship negotiations, the European Union kept responding to the sound of the clicking fingers of the United Kingdom.

And the European Union had to do this, as the departure of a Member State could not be taken lightly.

But this effortless priority is now over.

Any substantial changes to the new relationship will have to fit in with other matters and be dealt with at what is the natural pace of Brussels.

And, in any case, many in the European Union are bored and tired of Brexit.

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The third reason is that it is only with five-year cycles that the European Union will be able to assess the stability and sustainability of any United Kingdom political and policy position on the European Union.

Even if there were some sudden political shift in favour of the United Kingdom joining, say, a customs union or becoming part of the single market, the European Union would want to see if that was a settled and consensual position.

The European Union is all too aware of the rapid convulsions that the European Union issue can cause to the politics of the United Kingdom.

Remember that in 2015 there was a general election in the United Kingdom where every major party was in favour of membership of the European Union – and three prime ministers and two general elections later, the United Kingdom is no longer a member state.

And 2015 was, well, five years ago.

The European Union has no interest in a substantial shift in its relationship with the United Kingdom which could quickly become undone.

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The fourth reason is also to do with the United Kingdom.

Will there even be a United Kingdom of Great Britain and Northern Ireland in five or ten years’ time?

As this blog has previously averred, two natural consequences of Brexit are a united Ireland and an independent Scotland.

These are not things which will necessarily, still less automatically, happen.

But they are foreseeable.

And so five-year cycles will allow the European Union to see not only how the politics and policies of the United Kingdom settle down, but also how the United Kingdom itself and its constituent parts settle down.

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And this structural point goes both ways – for the fifth reason is that the European Union itself in five and ten years’ time may itself be a different creature to what it currently is.

Freed from the reluctance and relentless scepticism of the United Kingdom, the European Union can now go in a different direction.

And so not only will the European Union want to see what the United Kingdom is like in five and ten years’ time, it will want to see what its own position will be like.

It will not be re-fighting the issues of 2016 or 2020 in its engagement with the United Kingdom, like some geo-political historical re-enactment society.

Regardless of what changes (if any) happen within and to the United Kingdom, the European Union will be thinking in terms of what suits it in 2026, or 2031, or whenever.

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The final reason is beyond the power of both the United Kingdom and the European Union.

In 2026, and in 2031, and so on, the world itself may be very different from now.

Many things may be different: a post-Trump (or revived Trump) United States, a post-Putin (or retained Putin) Russia, China becoming (or not becoming) the world’s largest economy, ongoing pandemics and climate change, and so on.

It may then suit the European Union and the United Kingdom to huddle together – or to huddle apart.

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In setting all this out, I do not wish to give false hope to Remainers/Rejoiners that if with sufficient focus and energy, they could shove the United Kingdom back towards the European Union in 2026 or 2031 or so on.

Indeed, the five-year cycle could even lead to greater divergence.

(And there is a non-trivial chance the United Kingdom may terminate the relationship agreement with one year’s notice.)

But if there is to be a closer relationship – or even an eventual application to rejoin – the United Kingdom will have to have regard to the five-year cycles of the European Union.

As I mentioned above, the days of snapping fingers for attention are over.

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My own view, for what it is worth, is that I hope the five-year cycle leads to an increasingly solid and sustainable association arrangement between the United Kingdom and the European Union – and that it becomes something that endures perhaps longer than the actual membership.

And I hope that the five-year cycles are used to adjust the relationship appropriately.

(I also support an Ireland united by consent and an independent Scotland and Wales, and these developments will also, in my opinion, be easier with an association agreement between United Kingdom (or just England) and the European Union.)

But these are mere hopes, and they can be dashed or discarded.

What is and will be in place, regardless of hopes (or fears), is that it will not be quick and easy for the United Kingdom – or England – to move substantially towards the European Union, let alone rejoin.

The eventful, exhausting 2016-2021 Brexit five-year cycle is over.

Let us see what future five-year cycles bring.

*****

This law and policy blog provides a daily post commenting on and contextualising topical law and policy matters – each post is published at about 9.30am UK time.

Each post takes time, effort, and opportunity cost.

If you value the free-to-read and independent legal and policy commentary both at this blog and at my Twitter account please do support through the Paypal box above.

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You can also subscribe to this blog at the subscription box above (on an internet browser) or on a pulldown list (on mobile).

*****

This blog enjoys a high standard of comments, many of which are better and more interesting than the posts.

Comments are welcome, but they are pre-moderated.

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This agreement is not the end of Brexit, it is a five year political truce

28th December 2020

More is now becoming apparent of the nature of the draft trade and cooperation agreement between the European Union and the United Kingdom.

This post looks at two fundamental issues: structure and duration.

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In regard of structure, let us start with what is expressly stated as the ‘purpose’ of the agreement:

‘This Agreement establishes the basis for a broad relationship between the Parties […]’

The word ‘broad’ is significant, especially when one looks at the following provision.

This provision expressly provides that it is envisaged that there will be ‘other’ agreements that will both ‘supplement’ this agreement but will be subject to this agreement.

The key word here, at the end of the numbered paragraph, is that this agreement is a ‘framework’.

As such it is not, and is not intended to be, a once-and-for-all agreement, setting out all the terms of the post-Brexit relationship between the European Union and the United Kingdom.

This will not surprise many (no doubt they are already scrolling down to type ‘why is this a surprise?’ in the comment box below) but it is significant – and consequential – and needs spelling out.

This is explicitly not an agreement which shows that the United Kingdom has, in one single bound, ‘taken back control’ and become free.

The agreement instead shows, even in its first two substantive provisions, that Brexit will be an ongoing negotiation, maybe one without end.

All this agreement does – expressly and openly – is provide a ‘broad…framework’.

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Once this is understood then other parts of the agreement make sense.

For example, there are numerous specialised trade committees set up for various sectors.

Loads of talking shops.

But some have rightly noted that some sectors do not have specialised trade committees.

The specialised trade committees which have been set up, however, oversee certain parts of the agreement.

So, if a sector is not the subject of other provisions in the agreement, then there will not be a specialised trade committee to oversee that sector.

(This is akin to, say, parliamentary select committees that are set up to mirror government departments.)

The reason, therefore, there is not a financial services specialised trade committee under this agreement is that there are no substantive provisions under this agreement on financial services (yet) for that committee to monitor.

If and when there is a ‘supplementary’ agreement on financial services, for example, there will be a corresponding new specialised trade committee.

That new committees can be formed is expressly provided for in the powers of the partnership council, that can ‘by decision, establish Trade Specialised Committees and Specialised Committees’.

The agreement, therefore, envisages both new supplementary agreements and new specialised committees.

(And these envisaged potential extensions are elsewhere in this agreement.)

In other words, this agreement is intended and designed to be a dynamic arrangement between the parties, where areas of trade and cooperation can change and indeed become closer (or less close) over time.

This means one consequence of Brexit is that the United Kingdom has swapped the dynamic treaties of the European Union which envisages things becoming closer (or sometimes less close) over time for a new ‘broad…framework’ dynamic agreement that also envisages things becoming closer (or sometimes less close) over time.

And this is part of the design, as the examples above show.

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There is more.

Not only is the agreement envisaged and designed to be dynamic over time, it will also be subject to five-yearly reviews.

So slow, incremental changes within five periods will be complemented by possible far more substantive shifts every five years.

This again is part of the design.

Buried on page 402 of the agreement:

“The Parties shall jointly review the implementation of this Agreement and supplementing agreements and any matters related thereto five years after the entry into force of this Agreement and every five years thereafter.”

And once you realise there is this five year cycle, you notice it elsewhere in the agreement.

There are numerous references to ‘2026’ and ‘five years’.

And as John Lichfield has pointed out in this significant and informative thread, 2026 is also a significant date on the fisheries question:

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Five year periods, of course, accord neatly with the five year cycles of the European Union.

The European Commission is appointed for a five year term, for example, and the European Parliament is elected every five years.

Each President of the European Council also tends to serve a five year term.

So this five year cycle of reviews is convenient for (and is no doubt designed to be convenient for) the European Union.

Each Commission, each European Parliament, and each President of the European Council, will have its turn to shape the relationship with the United Kingdom, before handing it onto the next.

The five year cycle also may suit the United Kingdom.

The Fixed-term Parliaments Act provides that each parliament should last five years – though, of course, this statute is set for repeal.

But, in any case, the politics of the United Kingdom generally tends to follow cycles of four to five years.

And if Fixed-term Parliaments Act stays in place, the next general election is in 2024, just in time for the run-up to the next review of the agreement.

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The trade and cooperation agreement is expressly and openly designed to have both small changes within five year cycles and potentially big changes every five years.

As such, this agreement is not the end of Brexit.

The agreement is not (and is not intended to be) a once-and-for-all settlement of the relationship between the European Union and the United Kingdom.

It is instead – deliberately – a dynamic agreement, capable of enabling closer union (or less close union) over time.

The five year cycles accord exactly with the convenience of the terms of the European Union and also roughly match the political cycle of the United Kingdom.

This agreement does not bring Brexit to an end, it is instead a five year political truce.

*****

This law and policy blog provides a daily post commenting on and contextualising topical law and policy matters – each post is published at about 9.30am UK time.

Each post takes time, effort, and opportunity cost.

If you value the free-to-read and independent legal and policy commentary both at this blog and at my Twitter account please do support through the Paypal box above.

Or become a Patreon subscriber.

You can also subscribe to this blog at the subscription box above (on an internet browser) or on a pulldown list (on mobile).

*****

This blog enjoys a high standard of comments, many of which are better and more interesting than the posts.

Comments are welcome, but they are pre-moderated.

Comments will not be published if irksome.

 

 

 

The United Kingdom-European Union trade agreement – the early emerging picture

27th December 2020

The draft trade agreement between the European Union and the United Kingdom and related documents were published yesterday.

As this blog has previously averred, there is not sufficient time for this agreement and related documents to be properly analysed and scrutinised before the Brexit transition period ends automatically on 31st December 2020.

All one can really do in the time available is read through the documents, spot patterns and complications, and notice the more obvious deficiencies, discrepancies and omissions.

Proper analysis and scrutiny of such a large legal instrument is not and cannot be a linear, read-through exercise.

It is instead complex: comparing provisions within the agreement and related documents, then matching the provisions with external legal instruments, and – most importantly – practically stress-testing the proposed provisions against reality.

As this blog has previously said, legal codes are akin to computer coding – and so quick reviews before deployment will not spot the inevitable bugs.

All that said, there are already some emerging shapes and overall impressions.

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The best starting point is the European Union page, which has links to a number of relevant documents.

You will see there that there is not just one draft agreement, for trade – there are also a security of information agreement and a civil nuclear Agreement.

There is also a 26-page document of ‘declarations’.

Also worth looking at is this 2-page table of consequences of the United Kingdom’s departure and the benefits of the agreement.

The corresponding page of the United Kingdom government has fewer resources but there is this 34-page explainer which summarises at a high-level the ‘core’ provisions of the agreement.

(Though without the contents pages and judicious use of spacing, numbering and tabes, that explainer would have significantly fewer pages.)

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A number of commentators and experts have also shared their early views and impressions.

The excellent team at the Institute of Government have provided initial analyses of the provisions at their site – see the links on the left of that landing page for their looks at individual areas.

Professor Steve Peers – author of various leading texts on European Union law – spent Christmas Day and Boxing Day putting together an explanatory thread on Twitter.

The thread, like the rest of his social media output, is an astonishing work of immediate legal commentary and is a boon for the public understanding of law.

There was other outstanding commentary.

Trade expert Dr Anna Jerzewska: 

Services expert Nicole Sykes:

Former United Kingdom senior trade official David Henig did a post and a thread:

Another trade expert Sam Lowe observed that the trade side of the agreement was thin and – but for politics and choreography – could have been completed more quickly:

John Lichfield provided an informative thread on fisheries:

And extradition lawyer Edward Grange had a similarly informative ‘quick look’:

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In my own area of particular interest – institutions, governance and dispute resolution – my own very preliminary tweet got widely shared:

https://twitter.com/davidallengreen/status/1342749971142029312

And it was even picked up by the Daily Express, which – in an extraordinary and unexpected turn of events – described this blog as an ‘influential blog’.

Anton Spisak looked at this far more closely and he compiled this helpful diagram:

This elaborate scheme was correctly described by Professor Phil Syrpis as follows:

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All this is only ‘first glance’ stuff – a Boxing Day walk-through a long and complicated legal text.

But what is already plain is that what the United Kingdom government is boasting and spinning about the agreement may not be accurate.

Remember, however, that the old saying ‘the devil is in the detail’ is often the opposite of the truth.

Devils lurk and thrive in generalities, mismatched expectations, mutual misunderstandings, and grand sweeping statements.

It is these that bedevil us.

Details – that is precise language – flush out these devils.

And as we understand more about what has actually been agreed in this ‘deal’ – and what was not agreed – we will no doubt see many devils flush past.

*****

This law and policy blog provides a daily post commenting on and contextualising topical law and policy matters – each post is published at about 9.30am UK time.

Each post takes time, effort, and opportunity cost.

If you value the free-to-read and independent legal and policy commentary both at this blog and at my Twitter account please do support through the Paypal box above.

Or become a Patreon subscriber.

You can also subscribe to this blog at the subscription box above (on an internet browser) or on a pulldown list (on mobile).

*****

This blog enjoys a high standard of comments, many of which are better and more interesting than the posts.

Comments are welcome, but they are pre-moderated.

Comments will not be published if irksome.

The EU-UK trade agreement – and the tale of two tables

Boxing Day, 2020

The post-Brexit agreement on trade and other matters is, it seems, in final draft form – although it has not yet been officially published.

What seems to be a copy of the final draft is here.

Proper analysis of the agreement will necessarily take time – though an initial glance showed about ten pages devoted to creating dozens and dozens of joint European Union and United Kingdom talking shops – committees, assemblies, talking shops, and so on.

This indicates that Brexit will in fact be a negotiation without end.

So while we digest this Christmas feast, let us look at a couple of Christmas cards.

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The first is a ‘scorecard’ made public on Christmas Eve.

This purports to show a sequence of heady United Kingdom ‘wins’.

It is too soon to tell whether this document accords with the actual draft agreement, but even on its own terms it is confused and unconvincing.

For example, if we look at public procurement, where the United Kingdom had no proposals, the outcome is dubbed a ‘mutual compromise’.

But on legal services, where the European Union in turn had no position, the outcome is dubbed a United Kingdom ‘win’.Some topics are artificially broken up, perhaps to claim more United Kingdom ‘wins’ (for example, Financial Services), and other ‘wins’ not substantiated by accompanying text (especially Law Enforcement).

Such inconsistencies and distortions mean that, even on the face of it, the ‘scorecard’ is not a reliable document to form a view on the draft agreement either for or against.

The table has been created by the United Kingdom government (or a supporter of government policy) as propaganda, not analysis.

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The United Kingdom government, however, is not alone in presenting a table as a spinning exercise.

Again, it is too soon to tell whether this table is accurate in comparison with the actual agreement, though there are no obvious internal inconsistencies in the document.

And maybe significantly, this second table is not framed as ‘wins’ but is instead about losses – the scope and areas of coverage.

What is outside the agreement, as opposed to what was included.

Looking down the ticks and crosses indicate what the United Kingdom might be losing as opposed to ‘winning’.

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Just as the number of talking shops to be created under the agreement show that Brexit will now become a negotiation without end, the existence of these two tables indicate that the merits of Brexit will also be an ongoing argument.

Brexit will be a contested subject for at least a generation.

This trade agreement may be bringing part of the Brexit story to a formal conclusion, but it certainly does not bring Brexit to an end.

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POSTSCRIPT

The United Kingdom government has now published the final draft agreement and a 34 page summary – see here.

And the European Union has published its suite of documents here.

 

*****

This law and policy blog provides a daily post commenting on and contextualising topical law and policy matters – each post is published at about 9.30am UK time.

Each post takes time, effort, and opportunity cost.

If you value the free-to-read and independent legal and policy commentary both at this blog and at my Twitter account please do support through the Paypal box above.

Or become a Patreon subscriber.

You can also subscribe to this blog at the subscription box above (on an internet browser) or on a pulldown list (on mobile).

*****

This blog enjoys a high standard of comments, many of which are better and more interesting than the posts.

Comments are welcome, but they are pre-moderated.

Comments will not be published if irksome.

A Merry Christmas from the Law and Policy blog

Christmas Day, 2020

This wretched year nears its end.

And there probably has not been a year in the modern history of the United Kingdom – perhaps even in the history of the United Kingdom itself – which has been more eventful for law and policy.

But a highlight for me has been reviving this blog and doing a daily post, and so I thank you all for reading and supporting this blog.

A Merry Christmas you lot, and we will see each other on the other side.

(And I hear someone has delivered a ‘Deal’.)