Category: International Agreements

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

14th October 2021

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

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

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

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

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

So there must be another reason.

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

Just think about this.

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

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

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

This is the reality of ‘taking back control’.

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All because you ‘trigger’ Article 16 that does not make it a gun

4th October 2021

Another Monday, and another week begins with the government of the United Kingdom saying that it going to do something to show how serious it is about the Northern Irish protocol.

And David Frost, the Brexit minister, is again threatening to ‘trigger’ Article 16.

He may well do so, for this government has done dafter things in respect of Brexit and other matters.

But, as this blog has previously averred, if you actually look at what Article 16 says, you will see that it does not expressly provide for the suspension of the protocol.

It instead provides for a process – slow and deliberate – where the parties to the protocol can discuss measures fulfilling certain strict conditions, with the objective of ‘safeguarding’ the protocol.

Article 16 is not much of weapon.

All because you trigger Article 16 that does not make it a gun.

Maybe the European Union and the United Kingdom will do a deal under the cover of the Article 16 process.

Maybe; maybe not.

But the process in and of itself is not something that is intended to disrupt, let alone dismantle, the protocol.

Article 16 is more of a bicycle repair kit than a Beretta handgun.

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And what if Article 16 happens and the United Kingdom – either by law or politics – does not get the deal it is seeking?

What is the United Kingdom to do?

Threaten to trigger Article 16 a second time?

Or a third?

What if Frost’s bluff is called – and (yet again) he does not achieve what he is seeking to achieve?

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The one useful experience that is coming out of this situation is that – one hopes – United Kingdom ministers will be more careful about what international agreements they sign in this post-Brexit period.

An international legal instrument is not akin to a press release to be signed (off) so as to get Brexit done.

Entering into this agreement was a serious commitment, but the United Kingdom government was not serious.

But, just as inexperienced business people may sign one shoddy contract but never sign another one, perhaps the next generation of politicians – both those who make the decisions and those who hold them to account – will take the exercise of entering into a deal more seriously.

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Unless and until the European Union agrees to amend the protocol, the United Kingdom is stuck with the withdrawal deal it signed.

This is the practical reality of ‘getting Brexit done’ and ‘taking back control’ – the United Kingdom is perhaps more reliant on goodwill than before.

This legal dependency is the hidden, inconvenient truth of Brexit – and Brexiters could not have in substance made us any more reliant on the European Union if they had tried.

Brexit did get done – but by giving away control and not by taking it back.

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The government proposes a Christmas gift for emergency visa workers: a deportation order on or after 25 December 2021

26th September 2021

Ebeneezer Blackadder:
In fact, there is something in your stocking, Baldrick, something I made for you.

Baldrick:
Ah, well that’s the best kind of gift, Mr. B. What is it?

Ebeneezer Blackadder:
It’s a fist. It’s for hitting people with. See?

– Blackadder’s Christmas Carol (1988)

*

The government’s proposal was daft to begin with.

An extraordinary proposal, even for this government.

And just in case you would not believe me, here is the BBC tweet announcing it – and the BBC’s name is good upon ’Change, for anything it choses to put its name to.

The necessary implication of the government’s proposal is that by automatic operation of law these lorry drivers who will deliver our Christmas goods and these poultry workers who will provide the Christmas turkeys will become illegal aliens at the stroke of midnight on Christmas Eve.

What a Christmas present for those who choose to come over here to provide services, goods and food for those of us in Great Britain.

The following tweet on this is (I think) intended as satire:

But as Zoe Gardner observes, it it not far off the actual legal position:

She is right: that would be the legal position on Christmas Day.

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And as this blog averred yesterday, there is no reason to believe this quick fix will work in any case.

Let us remember what happened last year.

There is thereby no particular reason to think there will be a rush of workers wanting to help Great Britain out at this time of need.

And so the proposal may become an(other) example of the post-Brexit government discovering that the many problems created by Brexit are not capable of quick easy solutions.

Inviting such workers on terms where – once they have delivered Christmas goods in their lorries and helped provide the turkeys for Christmas dinners – they will literally become illegal aliens at the strike of midnight – is a thing not even Charles Dickens would have imagined.

To adapt Blackadder:

Ebeneezer Blackadder:
Thank you for helping save the British Christmas, there is something in your stocking, something I made for you.

EU migrant worker:
Ah, well that’s the best kind of gift, Mr. B. What is it?

Ebeneezer Blackadder:
It’s a deportation order. It’s for deporting people with. See?

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The Law and Politics of triggering Article 16

24th September 2021

So the United Kingdom government is again contemplating triggering Article 16.

A recent post on this blog set out what – at law – this means.

In essence: triggering the article means a formal process will begin which may enable the United Kingdom and/or European Union to take ‘safeguard’ measures to protect the operation of the Northern Irish protocol.

On the face of it, Article 16 is not about ‘suspending’ the Northern Irish protocol but about repairing and thereby protecting the functioning of the protocol.

All because Article 16 can be ‘triggered’, that does not make it a gun.

But.

Law and politics are different things.

And sometimes legal processes can be commenced as a cover for (or as an accompaniment of) political manoeuvres.

This possibility was highlighted last week by the sagacious Steve Peers:

Maybe the European Union too would welcome the triggering of Article 16 so that it can move to a position that it may not be to adopt without such political and legal cover.

Maybe.

But even taking this political possibility at its highest, there remains the fact that the Article 16 process in and of itself is not intended to be a route for suspending the protocol but for (as it says expressly) safeguarding it.

And it is against this background we come to yesterday’s infantile tweet from the United Kingdom minister David Frost:

Or: please answer the telephone, please.

As Frost was the United Kingdom politician who actually negotiated and endorsed the agreement containing the protocol, it is an especially pathetic plea.

And those in Northern Ireland who benefit from access to the single market, while the rest of the United Kingdom face all manners of shortages, may not agree that the protocol is having a negative effect.

(And also the ‘clearly’ is also a tell – politicians tend to use the word when a thing is not clear.)

But the first sentence of the tweet looks as if the government is seeking to frame the issue as meeting the seriousness criterion for triggering Article 16.

Maybe they will.

Maybe.

*

If the United Kingdom government triggers Article 16 – and the United Kingdom government has done dafter things regarding Brexit – there will no doubt be claps and cheers.

And – and this should not be discounted – the Article 16 process could result in a political deal.

But what is not intended to happen is that the process, by itself, leads to the suspension of the protocol.

And if that is what the United Kingdom government is banking on, then this will turn out to be another needless misadventure in the story of Brexit.

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“I’ve always thought that a free trade deal with the U.S. would be difficult” – and what this Prime Minister’s falsehood tells us about law and policy

23rd September 2021

Once upon a time a Brummie solicitor and pundit averred that a post-Brexit trade deal with the United States was ‘in the bag’.

That Brummie solicitor and pundit was not me – though I did have fun with this boast in a Financial Times piece.

Jones was not the only figure to assume that a post-Brexit trade deal with the United States would be easy.

Almost all Brexiters who had an opinion on the matter assumed that such a trade deal would be a given.

And one such Brexiter was the now prime minister Boris Johnson.

But now he denies he ever said it.

Here, this short video should be watched in full.

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Shameless stuff.

*

There are at least two issues here.

The first was the readiness of Brexiters to assume international free trade deals were easy – that they would naturally follow from Brexit with the United Kingdom having a fully independent trade policy.

This sentiment may be derived from cod-historical notions about Victorian Britain – where it is imagined that the likes of Richard Cobden would pop across the channel to negotiate a free trade deal and still be home for tea.

In the mundane world of 2021 – as opposed to the giddy biscuit-tin world of nostalgic reenactments – new trade deals are rarely quick or easy, and often may not be worth having at all.

*

The second is that the prime minister knows he can say things that contradict what he said before and that few, if anyone, will care.

And this is despite the internet making it easier to expose such lies and other discrepancies.

Other than for the sake of it as a public good, there is no real point in setting out the falsehoods.

This is one thing that George Orwell perhaps did not correctly anticipate in Nineteen Eighty-four – there would be no need to employ the likes of Winston Smith to go back and change the historical record, as it would make no difference as to whether people believed new false claims.

The future instead turned out to be President Trump and others waving away such inconvenient truths as ‘fake news’.

For as this blog has said many times: exposing lies is not enough when people do not mind the lies.

So we are now in a bubble of faux-historical sentimentality and hyper-partisanship, where the truth of the historical record makes no difference.

You may think the bubble cannot carry on, but yet it does.

It is the paradox of our age: it has never been easier to expose a falsehood, yet the falsehoods continue to have purchase.

And from this many of our current problems in law and policy follow.

**

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Are President Biden’s comments on ‘the Irish Accords’ a life line for the Human Rights Act?

22nd September 2021

Yesterday United States President Biden spoke about his concern about a possible change to what he called ‘the Irish Accords’.

From the context of the question and answer, Biden meant the Good Friday/Belfast Agreement – though the question was framed in terms of the Northern Irish Protocol of the Brexit withdrawal agreement.

The question and answer are here and you should watch and listen for yourself:

You will see in the tweet above that the estimable Sonya Sceats, the chief executive of Freedom from Torture, avers that the exchange is a life line for the Human Rights Act 1998.

Is she right?

And what is the connection between that exchange and the Human Rights Act 1998?

Here we need to see what the Good Friday/Belfast Agreement says.

In respect of the European Convention on Human Rights (ECHR), the agreement says the following:

‘There will be safeguards to ensure that all sections of the community can participate and work together successfully in the operation of these institutions and that all sections of the community are protected, including […] the European Convention on Human Rights (ECHR) and any Bill of Rights for Northern Ireland supplementing it, which neither the Assembly nor public bodies can infringe, together with a Human Rights Commission [and] arrangements to provide that key decisions and legislation are proofed to ensure that they do not infringe the ECHR and any Bill of Rights for Northern Ireland’

and

‘The British Government will complete incorporation into Northern Ireland law of the European Convention on Human Rights (ECHR), with direct access to the courts, and remedies for breach of the Convention, including power for the courts to overrule Assembly legislation on grounds of inconsistency’.

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These passages are explicit: the ECHR is a ‘safeguard’ and the ECHR has to be enforceable in the courts of Northern Ireland.

The agreement does not expressly mention the Human Rights Act 1998 – not least because that legislation had not yet been passed at the time of the agreement.

But one of the things that the act does in respect of Northern Ireland – as well as for the rest of the United Kingdom – is to make the ECHR enforceable directly in the courts.

This is instead of requiring a party seeking to rely on the ECHR to petition the European Court of Human Rights in Strasbourg, as was the position before the act took effect.

Of course: you do not – strictly – need the Human Rights Act 1998 to be in place to fulfil the express requirements of the Good Friday/Belfast Agreement, as long as the ECHR remains enforceable locally in Northern Ireland.

But if the Act were to be repealed – which is a long-term goal of the new lord chancellor and justice secretary Dominic Raab – then there would need to be replacement legislation in place the very day the repeal took effect for ECHR rights to remain directly enforceable in the courts of Northern Ireland.

*

So does this mean the Human Rights Act 1998 is safe?

I am not so sure.

I averred on this blog when Raab was appointed (and I am sorry to quote myself):

‘And one would not be surprised that one stipulation made by Raab in accepting the position as lord chancellor is that he get another crack at repealing the human rights act.

‘If so, then the act will probably be repealed – though there will no doubt be a less strikingly (and provocatively) entitled ‘European Convention on Human Rights (Interpretation and Incorporation of Articles) and Related Purposes Act’ in its stead – not least because the Good Friday Agreement provides that the convention has to be enforceable in Northern Ireland.’

Having seen the exchange with Biden, I am now wondering if my (dismal) view is correct.

A wise government of the United Kingdom will be anxious not to give the slightest indication that anything related to the Good Friday/Belfast Agreement was up for any change – and continuing local enforcement of the ECHR is an express provision of that agreement.

A wise government, concerned about its relations with the United States, would thereby not touch the repeal of the Human Rights Act 1998 with a barge pole.

It would just take one credible complaint that the Good Friday/Belfast Agreement was at risk, and there would be an international problem.

Repealing the Human Rights Act 1998 would not be worth these risks – especially as it would have to be replaced immediately with legislation having the identical effect in respect of Northern Ireland.

But we do not have a wise government – we have a silly government.

And given the long-term obsession of the new lord chancellor with repealing the Human Rights Act 1998 – and that this may even be a reason for why he accepted his political demotion – one can see the repeal (and its immediate replacement) still going ahead in symbolic form – even if not in much substance.

*

But the politics of symbolism does not just have one direction.

Against Raab’s fixation with the symbolism of repealing the Human Rights Act 1998 is the transatlantic symbolism of doing anything that could remotely affect the Good Friday/Belfast Agreement.

So it may be that Sceats’ view is correct – and the Human Rights Act 1998 is safer than before.

But, on any view, repeal seems an unwise political path to take, given how much politically – and how little legally – is at stake.

**

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“I’d much rather get a deal that really works for the UK than get a quick deal”

21st September 2021

Just a short post today, to note the irony – or lack of irony – of this statement by the prime minister:

“I’d much rather get a deal that really works for the UK than get a quick deal”

There is, of course, nothing to fault in this utterance – on its own terms.

It is a statement so solidly sensible that, one would think, it is a Good Thing that a prime minister has said it.

But.

This is also a prime minister who rushed through a Brexit deal that he now wants to renege on.

This is also a prime minister who heads a government that seeks to enter quick trade deals by the expedient of dropping demands and agreeing to whatever is offered.

So: the prime minister may have said “I’d much rather get a deal that really works for the UK than get a quick deal” but he is not being sincere.

The context undermines the text.

What he says here (as elsewhere) does not correspond with his or his government’s policy.

His words are instead a rhetorical trick – to explain away failure by a claim to high-mindedness.

All that the prime minister means by “I’d much rather get a deal that really works for the UK than get a quick deal” is that he cannot get a quick deal – or any deal.

Not even for soured grapes.

It sounds statesmanlike and commendable, but is just another excuse from the excuse drawer.

Imagine having a prime minister who expounded such a principle – and actually meant it – and that the principle expounded in turn corresponded to policy?

That would be quite a thing, wouldn’t it?

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What is this “Article 16” that the United Kingdom is threatening to trigger?

14th September 2021

The Brexit minister David Frost has said that he is considering triggering article 16 in respect of the ongoing discussions between the United Kingdom and the European Union.

 

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This sounds all very portentous.

But what does it actually mean?

What is article 16?

The blogpost below is based on an extract from an earlier longer explainer posted on this blog back in January 2021 (when the European Commission clumsily and perhaps inadvertently seemed to trigger article 16 and then promptly untriggered it).

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Let’s begin with what is an ‘article’.

One of the blessings of Brexit is dealing with ‘articles’ of international legal instruments – most famously article 50 of the treaty on European Union.

The word ‘article’ is somehow grander than the more mundane ‘section’ and the everyday ‘clause’.

Indeed articles tend to be more self-contained as legal provisions – sometimes like micro legal instruments within macro legal instruments like treaties.

And article 16 – together with a dedicated annex – is such a micro legal instrument.

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Article 16 is part of the Northern Irish protocol, which in turn is a protocol to the withdrawal agreement.

Instruments within instruments within instruments.

Article 16 provides in its entirety (and you should read every word, as they will matter): In essence: the ‘if [x] then [y]’ here is ‘if [there are certain difficulties in the application of the Northern Irish protocol] then [appropriate safeguard measures can be taken]’.

*

The article is entitled ‘Safeguards’ – but straight away you will see that the provision is itself subject to its own safeguards – and this is important because, as you can see, what is or can be a ‘safeguard measure’ is not defined.

First.

In paragraph 1, the trigger for the safeguards has to be a serious situation that is likely to persist.

Second.

It then provides that any safeguards will be ‘restricted’ to what is ‘strictly necessary’ for the purpose of remedying that particular serious situation.

Third.

And ‘priority’ shall be given to what measures that cause the least disturbance.

One, two, three.

So: triggering article 16 does not mean anything goes.

Anything Frost proposes will have to meet these three substantive tests.

*

And there is more.

In paragraph 2, any imbalances caused by the uses of the safeguards can be addressed with counter measures: so the article is not a unilateral tool.

If the United Kingdom takes measures under article 16 then the European Union can take countermeasures too.

Paragraph 3 then states that a prescribed process has also to be followed, as set out in an annex.

Strictly speaking: triggering article 16 does not trigger the right to take safeguard measures, but triggers a process that may in turn lead to such measures.

The annex supplements the substantive conditions on the use of Article 16 safeguards with procedural protections (and, again, this provision should be read in full): In essence: notification, talking shop, delay for a month, adoption of measures, further notification, regular consultations on measures, reviews of the measures.

Even in the event of ‘exceptional circumstances’ under point 3 of this annex, there is still a procedure to be followed.

Safeguards within safeguards within safeguards, and so on.

Article 16 ain’t no weapon – it is a remedial tool.

It really is not something to ‘threaten’.

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In summary: invoking article 16 is not to be done casually or by mere oversight.

There are many substantive and procedural conditions to be fulfilled before it can be invoked.

And unless those conditions are met, then article 16 measures are not available.

Even when all the conditions are met, the scheme of the article and the annex is that there would be a collaborative review-and-consultation to the use of the measures.

All this is – or should be – obvious from the title of the article: ‘Safeguards’.

And not Reprisals.

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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.

*

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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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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