The sleeping dog of ‘Europe’: UK relations with the EU as a non-issue

Posted on 17th July 2024 by admin

This piece was originally posted as part of the UK Election Analysis project. Do visit for lots of other pieces on all aspects of the 2024 General Election.

Given that the past decade of British politics has arguably been shaped by the question of Europe more than any other single issue, one might have expected to find the matter to be front and centre in the election campaign. The economic and social consequences of Brexit still reverberate, with profound dissatisfaction among the general public about how it has been handled and with previously strong advocates on both sides of the Leave-Remain divide still very present in the political debate. And yet, Brexit and present and future relations with the European Union (EU) were almost entirely absent from both the long and short election campaigns. How might we explain this and what consequence will it have for the new government?

Nothing to see here; move along

To some extent, the difficulties of European policy for the government provided a strong reason not to dwell on the topic in the post-Johnson period: the issue had been caught up with the ex-Prime Minister and both Liz Truss and Rishi Sunak wanted to change the conversation as part of an attempted refresh. For Sunak, the conclusion of the Windsor Framework deal in early 2023 and then the publication of the Strengthening the Union Command Paper in February (which opened the door to the resumption of the Northern Ireland Executive) drew a line under matters, allowing him to argue the fundamentals of the relationship with the EU were now settled and agreed.

For their part, Labour had long been content to let the Conservatives tear themselves up over Brexit and as they rose in the polls, there appeared to be an incentive in not pushing any particular line on the issue, mostly for fear of alienating disillusioned Leave/Conservative voters. As much as there were some grumbling on all sides about the policy of ‘make Brexit work’, it offered some reassurance that improvements could be made, without overturning the basic choice made in the 2016 referendum.

The result was a tacit ceasefire on the issue between the two main parties: neither leader voluntarily used the topic in their head-to-head TV debates – even the question asked about it in the final debate saw minimal discussion – and there were only passing mentions in the fine print of the manifestos.

Moreover, smaller parties also seemed to have made a similar decision. The Liberal Democrats and Greens retained their position of rejoining the EU, but neither put it at the heart of their campaigning, in stark contrast to 2019. On the other side of the debate, Reform UK also subsumed European matters into one small part of their general critique of mainstream politics, their manifesto more a list of complaints than a policy.

The only exceptions were found in Scotland and Northern Ireland. The SNP was more proactive about the failure of Brexit as part of Westminster’s failure of Scotland and about the need for EU membership as part of an independent Scottish future. In Northern Ireland, the Windsor Framework produced much self-justification from the DUP and criticism from the TUV, as well as being prominent across the community as a key part of the economic and political landscape.

Perhaps the best marker of all of this came on 23rd June, the eighth anniversary of the referendum vote. Whereas in previous years there had been notable amounts of public debate and discussion, this time there was only a half-hearted probing of Labour’s policy.

What happens in Brussels doesn’t stay in Brussels

As much as the key political figures in the election did not want to discuss relations with the EU, it is also clear that the new government will not have so much choice in the matter.

The European Political Community summit at Blenheim Palace on 18th July will be an early reminder of this, as Prime Minister Starmer welcomes leaders from across the continent and will have to decide how much he offers beyond warm words. While there will be understanding that he has only just entered the job, his ability to start delivering on action will also be noted.

Part of this might involve movement on a new security pact with Germany, modelled on the Lancaster House arrangements with France, for which Labour has already laid some groundwork. But this bilateral move will not remove the need to engage on issues as diverse as carbon pricing, fishery quotas, Northern Ireland consent to the Protocol and the general review of the main EU-UK treaty in the coming 18 months. Despite Foreign Secretary David Lammy’s flash tour of European capitals immediately after the election, talk of a non-binding security pact with the EU leaves matters very open.

Add to this the potential changes the EU itself will be undergoing in the next period of time and it is clear that not having an active interest and engagement with European affairs might prove to be a false economy for the new government. The consolidation of the radical right in the European Parliament and the constraining of the French political system following the legislative election, as well as the general day-to-day production of new EU legislation, will all produce impacts on the UK, which remains unavoidably exposed to the developments of its closest and largest neighbour. Whether Labour has an effective playbook to manage this will become apparent soon enough.

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Europe in the 2024 manifestos

Posted on 27th June 2024 by admin

It’s a week until the General Election, so a good point to consider the European issue in the campaign so far.

This will be a short post, mostly because very few parties want to talk about the EU, and those that do are using it for a very specific purpose. Quite the contrast to 2019.

As I’ve discussed elsewhere, while it’s understandable that the Conservatives don’t want to revisit the less-than-smooth rollout of Brexit, and Labour don’t want to scare the horses (especially those who’ve drifted over from the Conservatives), that doesn’t mean it’s not an important issue and one with the capacity to be majorly disruptive.

It was only last night, in the final leaders’ debate that a question was directly asked about future EU relations, which produced an exciting combination of avoiding the question and talking about what wouldn’t be done.

The graphics below round out the picture, both for Great Britain and for Northern Ireland.

In GB, the key split is between those parties (CON, REF) who dwell on Brexit as the primary frame of reference and those who talk about EU relations. LibDems, Greens, SNP and Plaid all want eventual membership, something that might become a lever depending on the outcome of results. But only the SNP make much of the matter, so salience is generally pretty low.

I’ve including positions on the ECHR, mostly to highlight that parties have a position on the matter, since it’s possibly going to remain a live issue around handling illegal migration and something with obvious crossovers to relations.

In NI, there is as much explanation/justification as actual policy positions: the graphic omits a fair amount of the former. The Protocol/Windsor Framework is understandably the key frame of reference. Only the TUV now talk about resiling from the treaty, even if the DUP remain less than enthusiastic on the matter.

It’s worth noting that NI parties are much more europeanised, in the sense of internalising the European dimension into their entire programmes. Clearly this is also bound up with republicanism and unionism, but it’s quite a contrast to the GB parties, where their manifestos seem to largely ignore Europe (and the rest of the world, for that matter).

Final point is to note that I’m still missing the Alliance and SDLP manifestos (the latter despite it being launched yesterday), so I will add this in as I have them.

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Article 2 of the Northern Ireland Protocol: More headaches in London

Posted on 17th May 2024 by admin

Back when the Withdrawal Agreement was first concluded, I did wonder about whether there was a need for an explainer for each of the provisions contained within it, one graphic at a time, so that everyone could be more on top of it all.

However, since there was rather a lot going on then (and since I’m not actually a legal scholar), the moment passed.

I’m reminded of all this with this week’s featured provision: Article 2 of the Northern Ireland Protocol. What I – and apparently everyone else in London – took as a bit of boilerplate about demonstrating commitment to the Belfast/Good Friday arrangements on rights and safeguards, actually turns out to have some pretty significant implications for the entire UK and UK-EU relations.

The size of the graphic below will flag that this isn’t a simple bit of law, but it’s important to appreciate that the nominal purpose of the Article also drives a general requirement to create effective British legal mechanisms to give effect to the Withdrawal Agreement’s provisions in very much the same manner as was the case for EU law during British membership of the EU.

This shouldn’t really be a surprise, given that the logics of supremacy and direct effect hold just as much in a situation like Northern Ireland – a non-member where many EU laws still apply – as in, say, Ireland – a member.

The commitment given in Art.4 of the Agreement in turn drove the provisions of the UK’s EU (Withdrawal) Act 2018, which make applying the Agreement and relevant EU law over inconsistent domestic provisions not simply a whim of international law but an obligation from Parliament.

The upshot is a very strong mechanism for protecting rights in Northern Ireland, far beyond ECHR or Human Rights Act powers.

However, this has in turn resulted in Northern Irish courts in the past couple of weeks concluding that parts of UK legislation can’t apply in Northern Ireland. This week’s ruling on non-deportation of asylum-seekers was the localised trigger, mostly because unlike earlier cases its effects are felt back in London.

As much as the government has looked to appeal both this and the Dillon judgement, legal opinion suggests that this isn’t likely to succeed, given the extensive and binding legal instruments in play.

While it is tempting to suggest that this is all the consequence of inadequate negotiation of the Withdrawal Agreement, it is more a case of politicians at the time being unwilling to explain the trade-offs involved in creating a bespoke arrangement for Northern Ireland. Once the decision to avoid any north-south border was taken, then it was evident that this would create east-west implications. London’s political bluster obscured the basic choice between east-west barriers or more extensive GB alignment with the EU.

At which point we might note that both Art.4 of the Withdrawal Agreement and Section 7A of the EU (Withdrawal) Act apply across the entire Withdrawal Agreement, not just the Protocol.

PDF (with clickable links): https://bit.ly/UshGraphic128

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Labour’s EU policy: Early markers

Posted on 14th March 2024 by admin

A bit of tricky one, this. It partly explains the hiatus in posting of late, although that might also be down to the rubbish weather.

As we move towards a General Election, interest has naturally turned towards what a Labour government might look like and do. And EU policy is a recurring question.

On the one hand, the party played down the issue. It’s not that salient among voters; the party worries its views might dissuade swing voters; and the Conservatives will make full use of an ‘will of the people’ argument on any big changes in relations.

On the other, the relatively distant trading relationship with the EU is a deadweight cost to the economy, instinctive sympathies for close relations exist throughout the party leadership and there’s an incentive to demonstrate how to ‘make Brexit work’ is more than just about tone.

Which leaves observers in a position of some uncertainty.

I have yet to speak to anyone who thinks there is a more developed and ambitious EU policy within the party, awaiting the moment it can be unleashed, presumably after a crushing election victory.

At the same time, the piecemeal and hopeful approach of what we already know appears to be not fully fit for any constructive purpose. As Tim Shipman noted last week, it’s not enough to say that you’re not the Tories and hope everything falls into your lap. Both the EU and its member states have already secured their key objectives in the TCA/WA treaties, so the UK needs to have a more compelling sell if changes are to ensue.

All of which is a prelude to a graphic-in-progress.

Here I’ve try to gather all the public elements of Labour’s EU work in the post-Johnson period. That includes speeches substantively about the subject (although all of these drift off into broader framings to various degrees), policy statements and interactions with relevant people.

It’s a limited overview, since there are various other things going on that I’m aware of, but can’t easily substantiate. However, there’s nothing that suggests any significant divergence from the broad picture presented here: lots of getting-to-know-yous, warm words, but minimal policy development beyond that.

At a guess, the intention is to get a few (relatively) simple wins – on SPS, on security – and then to leave more involved options for the fabled second term. Of course, those more involved options are also the ones that need more time to negotiate, so whether anything significant could be wrapped up in time is a moot point right now.

But that is to miss the wider point, namely that while there is an agenda of strengthening the UK’s profile as a key partner, within which EU relations sit, the starting point is one of minimising spending of political capital, rather than a strategically-grounded reassessment.

That’s understandable from a political management perspective, but it runs the risk of leaving a Labour government underpreparing for handling any future bumps in the road, foreseen and unforeseen. Just as the Major government found that reactive European policy had its limits in the 1990s, so too might Starmer discover that leaning-in is the less politically-costly option in the long run.

 

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Updating graphics on the WA/TCA, Windsor and border controls

Posted on 9th February 2024 by admin

Last week’s announcement of a package of measures to support the return of the Northern Ireland Assembly and Executive might not have produced much substantial change in UK-EU relations, but it has prompted me to update a number of key graphics.

For newer readers, over the past [quickly checks; sighs] eight years, I’ve been making graphics to summarise key elements of the Brexit process and of UK-EU relations. You can find the whole pile of them here, in PDF format, often with clickable links to source documents.

Everything’s on a free, shareable and reusable BY-NC-SA licence: I’d only ask that if you spot mistakes, you let me know.

Anyway, back to the matter in hand, namely the nudge I got to make sure these graphics remained up-to-date.

Starting with meetings of the Withdrawal Agreement (WA) and Trade & Cooperation Agreement (TCA) bodies, we can see that the former are getting fewer and fewer (as expected), while the latter are now in full flight (also as expected).

The autumn is thus the key point for checking in on TCA progress, although that obviously doesn’t preclude additional interactions through the relevant committees. That said, all of this still represents the bare minimum to keep relations ticking over: there’s no top-level summitry and any other interactions are sporadic at best.

The Stormont deal doesn’t change any of that. As I noted in my previous post, the package is mostly about unilateral British changes, to the point that I didn’t even see any point in updating the Stormont Brake graphic, given that the amended Act doesn’t add any meaningful weight on UK ministers to block new legislation over what was agreed last year.

As you can see below, while we add a number of new elements into the Framework, their impact is very contained and they do nothing to change the long implementation arrangements. All of which makes DUP acquiescence over this less likely to centre on their previous Protocol qualms.

The main impact of all of this is the confirmation that the WA and TCA now form the basic superstructure of UK-EU relations: with both the Conservatives and DUP now nominally on-board with the Protocol, there is minimal pressure to move off these treaties. That also colours Labour’s position, since it makes it even easier to stick on them too, rather than incur challenges should they try to move to a more comprehensive arrangement.

However, since I was in the mood to play around with Powerpoint, I also finally go to working on the impact of the Border Target Operating Model (BTOM), which I’ve rather avoided, mostly because I’m not a trade expert and all the charts in the main document looked far too daunting.

But since that’s not a good reason, I have no worked back through one of the lasting non-Northern Irish issues in relations, namely the extended uncertainty about whether and when the UK would impose controls on EU imports.

Throughout 2021 and 2022, the government kept on pushing back what had been presented as temporary easements, largely because its work on new border controls was taking much longer than expected.

The BTOM – published in October last year – does offer much more clarity on the situation. We’ve just had the first deadline of 31 January pass, with another at the end of April and then further new arrangements arriving through the back-end of this year. However, we also find some things are never happening, justified by a new risk-based approach to checks that is meant to reduce paperwork for everyone involved.

Whether this new calendar does happen as planned is moot right now, but certainly last month’s deadline took place on schedule. However, with ETIAS on the horizon this autumn, there’s still reason to think delays might still occur.

All of which goes to underline that relations remain – and will remain – in a dynamic situation. With both the UK and EU constantly changing policies and processes, not to mention the eternal excitements of the international system around them, while we might be out of the worst of the Johnson-era tensions, both parties to the treaties will need to maintain a close and active eye on how things are working out.

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Some ado about not much: The DUP deal on power-sharing

Posted on 3rd February 2024 by admin

The publication on Wednesday of a UK Command Paper “Safeguarding the Union” came largely out of the blue. For months the Secretary of State and budding author, Chris Heaton-Harris, has been talking with the Democratic Unionist Party (DUP) about returning to power-sharing in the Northern Ireland Executive.

Last year’s Windsor Framework was supposed to have achieved this, although at the time it was evident that a lot more effort had gone into squaring circles with the Commission than any of the parties in Stormont.

Any manner of carrots and sticks have been banished over the last 12 months, to no obvious effect, so hopes were not high at all about this current push.

But a deal does indeed seem to have been done, with the institutions get back into operation, some two years since they collapse.

In this post, I want to explore the elements of that deal as they relate to the Northern Ireland Protocol. This was nominally the major issue for the DUP, so we’d expect things to have moved clearly.

However, my top line is that this deal doesn’t really make any major change to what was agreed in Windsor, so any argument that London moved mountains here is not really in accordance with facts on the ground.

Continue reading →

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Retained EU Law is dead! Long live assimilated law!

Posted on 25th January 2024 by admin

During the Christmas break, the UK got rid of all its Retained EU Law (REUL). But not really.

The entry into force of the Retained EU Law Act at New Year’s Eve meant that all that “Retained EU Law” got relabelled as “assimilated law”.

As I discussed in my previous post, the Act also resulted in a proscribed list of acts being repealed. This moved things on, but far less than had been the original intent of the Act’s creators.

Now we have a further development, in the first Parliamentary Report on REUL, as mandated by the Act. This fun piece of surveying not only sets out progress, but also – for the first time – planned outcomes.

Before we get to any of this, it’s worth noting the updating of the REUL Dashboard, now in its third year of operation and still throwing up surprises.

Chief among these is the addition of over 1700 further pieces of REUL, taking the total up to 6757. For reference, the original dataset in June 2022 had 2417 items, or 36% of the current total.

The biggest additions in this latest update come at DESNZ, DEFRA, Treasury and DfT. Given this is the sixth occasion that totals have changed, it would be reasonable to assume it won’t be the last time.

However, the new figures show substantially more repeals than I’d anticipated last month (1369 actuals against 906), as well as more amendments (759 actuals against 647) and replacements (39 against 16). Only expirations was lower (62 against 75), which again makes little sense, given the Act shouldn’t have affected this: data errors are the probable cause here.

This means 67% of REUL is unchanged, with another 20% being repealed. As you can see in the two charts below, the Act’s passage is noticeable in the overall pattern of change, especially given the massive movement on overall volume.

We therefore have the somewhat ironic situation that while there has never been more change to REUL/assimilated law, we also have never had more identification of items of REUL/assimilated law, nor more listing of unchanged items (well over 4000).

This is precisely why there had been so much opposition to the Act during its creation: no one could be confident about what this mysterious category actually included, so to automatically sunset ‘everything’ would have undoubtedly produced massive unintended (and likely also not-immediately-noticed) consequences.

This point is a necessary function of the Report too.

Government has now stepped well back politically from trying to get rid of all REUL. One might argue this is just a reflection of technical realities, since it was always very likely that some part of REUL would remain obviously useful, but it is still only now that a more formal (if quietly spoken) statement has spelt that out.

The table below comes from the Report, setting out the end-point vision, wherein about 3000 items will be kept unchanged, another 1000 will be reformed, and over 2000 items revoked or removed.

The table is important for several reasons.

Firstly, it suggests that – barring a small handful of cases – there has been a more systematic evaluation across the piece of what to do. That has not obviously been the case previously when the nominal political objective was to get rid of everything. The test of whether this stands up will come in six months’ time, when the next report arrives: if we again find changes in volume or outcome, then we might be less confident that the datasheet on the Dashboard site holds up.

Secondly, it simultaneously points to continuing confusion. A glance at the categories used here will show that they don’t match those used in the Dashboard, which itself gained the classic “errrm” category of “TBC” this week. While one can argue ‘reforming’ isn’t so different from ‘amending’, ‘replacing’ seems to sit vaguely between ‘reforming’ and ‘removing’, and quite why tax legislation needs its own line is beyond me.

Trivial as this might sound, it does show there still isn’t a consistent language across Whitehall, which will make it that much harder to pursue any systematic agenda. Again, the next Report will tell us more.

All this said, we can now project out to the end of 2026, using the same charts we used earlier.

Again, we note that we end up with more pieces of unchanged (if assimilated) REUL at the end that we originally thought existed, plus the speed of chipping away at the pile will have been pretty consistent across the entire period, whatever the political messaging.

Of course, this all feeds into the question of progressive divergence from the EU, an issue that will become more relevant over time and especially as and when any new British government wants to rebuild ties with the Union.

But maybe we can leave that dilemma for another day.

Full data is, as ever, available here.

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The sun goes down in Retained EU Law, sort of

Posted on 15th December 2023 by admin

Christmas is, of course, the most Brexit-y time of year.

Who can forget such classic moments as reading treaties under the tinsel in 2019 and 2020, or pondering the no-confidence vote in 2018 over a glass of eggnog?

Obviously keen to keep up the tradition after a couple of fallow years, this time we get to look again at Retained EU Law (REUL), as the sunset clause of the REUL Act comes into effect as Big Ben chimes the New Year.

For those who’ve missed this so far, you can read more here (and here, and here). But the salient points are as follows:

  • As a member state of long-standing, the UK used the 1973 EC Act to apply many pieces of EU legislation and other decision-making as part of law within the UK;
  • Once the UK left, it was observed that: a) all this EU law shouldn’t apply any more, but that b) it has become very embedded within British legal frameworks;
  • The Hard Brexit factions pushed on this (on point a), more precisely), eventually securing the Government’s pursuit of a Retained EU Law Bill that initially declared all the REUL would fall void at the end of this calendar year;
  • Much pushback ensued, not least because it turned out no one knew how much REUL there actually was or what it all did, so sunsetting it would cause many more problems than it solved;
  • Ultimately the Government conceded the point, moving instead to a schedule in the REUL Act, specifying what would sunset and leaving the rest to continuing efforts to remove or amend it to better fit British interests.

The schedule lists 587 items. Of those, only 553 can be located on the Government’s REUL Dashboard, which is the central repository of REUL listing and work. The rest appear to be almost entirely made up of highly specific notices, but with no indication of why they only appear in the Act. Which rather underlines the point about the lack of a definitive list.

However, this quibble aside, it is now possible to project what the overall effect of the sunset at the end of December will be.

The lion’s share of sunsets come from DEFRA (319), followed by DfT and DESNZ (both 65). Notably, both the Treasury and DBT come in with low single digit sunsets, despite their relatively high volumes of REUL.

DEFRA seems to have had a lot of fisheries agreements and habitat regulations to chuck on the pile, with DESNZ bringing emission trading items and DfT numerous agreements on recognising training of non-EU seafarers.

In short, much of this list is not highly salient or current in content, but rather a clearing out of the legislative roll. Which is fine, but arguably not what Brexit was meant to secure.

Moreover, despite bringing us close to 1000 pieces of repealed REUL overall, this still leaves over 2,600 items that remain unchanged. As the chart below shows, the progress since withdrawal on 31 January 2020 has been stately rather than rapid, with approximately one-third of identified items undergoing some change.

That picture does however need to be set against that issue already mentioned: the uncertainty about the list. Which has grown from an initial 2417 items in mid-2022 to 5020 today.

The entire exercise continues to raise serious issues.

Firstly, the lack of records that are either exhaustive or consistent makes the switch to a defined list in the REUL Act schedule seem ever more prudent: the uncertainty about what REUL actually exists remains substantial, in turn making any system of blanket sunsetting run the risk of producing numerous unintended consequences.

Secondly, the uneven distribution across Departments of items in that schedule also suggests that any attempt to treat REUL as a homogenous lump is deeply unhelpful. Clearly, there are areas were repeal or sunset is quick and simple, while in other fields the items remain deeply consequential and/or entangled in wider regulatory frameworks. To work to an agenda of simply saying REUL is all ‘bad’ (or ‘good’ for that matter) isn’t very helpful.

Thirdly, we might note that Parliament has been largely excluded from this process: this is very much an Executive-led and -controlled initiative. Which comes back to questions of quite who it is that is taking back control in Brexit.

Finally, while the focus has been on the reform of REUL, it’s ever more important to remember that there is still a material interest in some form of regulatory alignment with the EU. Partly that’s down to Level Playing Field requirements in the TCA, but mostly it’s a function of proximity and the convergence that came from being a long-standing member state: if the UK values trading with its nearest large market then avoiding needless imposition of additional effective barriers to trade needs to be part of the calculations being made.

We’ll return to REUL during the coming years, but in the meantime you can find my datasheets here, including some more charts and the current raw dataset from the Dashboard site.

 

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Is sovereignty democracy?

Posted on 7th December 2023 by admin

Your land is my land

I’ve been turned over this question for some weeks now, mainly because it has kept on popping up in different places. And because I fundamentally disagree.

Last month, I heard the line ‘sovereignty is democracy’ fall from the lips of Bill Cash, speaking on a panel about Parliamentary scrutiny of European business.

I had hoped he might bring his vast experience of such matters to bear on a more technical level, but instead we got some extemporising on why scrutiny during British membership of the EU was fundamentally flawed, because the legislation being considered was out of Parliament’s hands. By leaving, the UK had regained control [his sense, if not his words] and any of the manifest problems with current scrutiny arrangements was ultimately acceptable because it was our sovereign choice so to be.

And more recently, the same line has been thrown around in the Tory debate on migration. Consider Suella Braverman’s resignation statement this week:

All of this comes down to a simple question: who governs Britain? Where does ultimate authority for the UK lie? Is it with the British people and their elected representatives, or is it in the vague, shifting and unaccountable concept of international law?

Both Cash and Braverman were speaking in particular contexts, but the sentiment is one that carries general import, both in the party and more widely. After all, Braverman’s question isn’t so unreasonable as first glance: why shouldn’t we get to decide things for ourselves?

To address this, we might consider three aspects that seem relevant.

Firstly, most things don’t affect discrete groups of people separated along sovereign lines.

The entire international system of trade is – by definition – an interaction of states, setting rules not simply for their optimal preference, but also in relation to rules set by others. To take a pertinent example, this week’s swerve on car batteries by the EU reflects a situation on the ground whereby ideals about one priority have had to flex to accommodate practical realities. Just because I want free trade, I can’t impose that on other states by virtue of my sovereignty. Indeed, the quid pro quo of claiming ultimate decision-making authority over my territory is that I respect your ultimate decision-making authority over your territory.

Which makes it harder to deal with things that affect everyone – like climate change – or things that we hold to be universal – like human rights. Yes, we can work to find agreements among sovereign bodies, but with no scope to do anything if one or more of those bodies refuses to play ball. For fighting climate change that might weaken responses, but for human rights that might mean people dying. Are we really comfortable with that?

Secondly, there’s arguably nothing above the level of the state that carries compelling force without the say-so of states.

The EU is a prime example. It’s entire legal foundation is that of international treaties, freely entered into by states, who voluntarily give up some sovereign rights in service of shared objectives, but with the faculty to withdraw from that system if the trade-off no longer works. Brexit proves the point.

As an EU scholar, I realise I have been pampered about what’s what: the rest of the international system rests on hopes of good faith and of moral suasion. A moment’s glance around the world will tell you that Braverman’s shape-shifting ‘international law’ shifts shape because it keeps on getting bashed about. Yes, other states can try to make legal claims against you, but ultimately there’s very little they can do beyond some degree of turning their backs on you. The troubled history of international courts (or the UN Security Council for that matter) shows up the weaknesses.

And finally, sovereignty provides no help with the internal politics of our bit of the world.

This is where we came in: Bill Cash gliding over the difficulties Parliament has in scrutinising any part of government’s operation, let alone directing it. As many have observed, ‘taking back control’ seems to have meant giving the executive a lot more power to do as it likes, rather than re-empowering those institutions that more closely reflect popular engagement in the political system.

Put differently, sovereignty is purely relational, its quid pro quo being between states. You can find much discussion about where sovereignty lies within states – an absolute monarch, the people, even Parliament (in one specific case) – but is independent of the inter-state dynamic. That’s why we get all those appeals to respecting other states’ choices in the UN: if we leave you to run yourself as you wish, then you’ll do the same for us. Democracy doesn’t come into it.

So where does this leave us?

As ever, I’m loathe to treat politicians as either stupid or ill-intentioned. I’ve already suggested that Braverman asks a question that makes a degree of sense, if not more closely inspected.

Perhaps this is another case of the world being not quite as we’d like to find it. The desire for agency is a key part of politics; the notion that we matter in shaping things around us. But that agency has limits, most obviously in the interactive effects of each of us shaping things. Democracy is a mechanism for managing those interactions, to ensure that we allow individuals to have a voice and a vote, and to protect them from arbitrary decisions.

That mechanism is theoretically independent of scale: it can work for very small groups, through to very large ones. Democracy’s focus on how we can live together might be more productive than sovereignty’s interest in how we can keep apart.

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Making Northern Ireland consent work

Posted on 9th November 2023 by admin

2024 is going to be a busy year for UK-EU relations.

As much as we talk about the 2026 TCA review as a key point, next year will see a full refresh of EU leadership and the European Parliament, plus a probable British general election, plus whatever fallout from a US presidential election might occur.

And more than that, there’s also the Northern Ireland consent process, which will unroll at the end of the year.

Consent was introduced into the Northern Ireland Protocol as part of Johnson’s shift from back- to frontstop in 2019: while the Protocol arrangements might become the standing system, the NI Assembly would gain the opportunity to express their opinion on those arrangements.

This idea – an extension of the principle of consent so central to the Belfast/Good Friday agreement – is exceptional in giving the power to a sub-national body to determine whether an international treaty continues to apply, regardless of the wishes of the contracting parties.

When we looked at this at the point of negotiation, there was less clarity about whether it meant anything, largely because the provisions of Art.18 NIP seemed to need a fully operational Assembly, something that wasn’t there then and isn’t there now.

However, the subsequent domestic arrangements for meeting the obligations of Art.18 NIP have taken a much more robust line on trying to make sure that a vote happens in almost any circumstance.

As David Phinnemore sets out in his excellent explainer on this, the drafting draws on many years of Assembly filibustering experience to close down as many loopholes as possible once the process begins on Halloween 2024. Indeed, as long as there’s at least one MLA who wants a vote to happen, then it’ll happen, even if every other MLA doesn’t want it.

And even if it doesn’t happen, that still means the Protocol remains in force.

The only way that MLAs can collapse the Protocol is an active majority vote against it.

Of course, anything less than a robust vote in support will come with political implications for the Protocol: unionist opposition is one thing, but republicans and non-aligned ambivalence is another. Given that the Belfast/GFA model looks less than resilient in general, there is a non-negliable risk that the Protocol becomes another dimension of Northern Ireland’s political tensions, drawing it into any recasting of arrangements down the line.

However, this is a way off for now and all involved have other things to occupy them. That said, while Christmas 2024 might mean a moment to gather thoughts (and breath), the (probable) clearing of the first consent vote is unlikely to mark the full stabilisation of the Protocol or – by extension – of UK-EU relations.

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