Article 50 and Brexit: Are Estragon and Vladimir on the move?

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13th July 2016

What can we make of the cabinet appointments this evening of Boris Johnson, Liam Fox, and David Davis?

Do the appointments mean Brexit is more likely or less likely?

Are they the Three Musketeers – Three Brexiteers – or are they the Three Stooges?

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Of the three appointments, the one which should worry Remainers is that of David Davis.  It is a serious appointment.  He was an outstanding Chair of the main Commons watchdog committee, the Public Accounts Committee, and a competent Europe minister.  He is not a politician to underestimate.

That said: there is the irony that, because of his genuine civil liberties concerns, he is currently suing the UK government at the European Court of Justice so as to enforce EU law.  Not the most appropriate thing a Brexit minister should be doing, one may say.

But what difference will the appointment make?

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On the day of the referendum result, I contended that the longer the delay, the less likely the UK would send the Article 50 notification.

This is not because of any lack of political will: it is because of the sheer policy and legal challenges of Brexit are such that delay will invariably mean events and excuses will come into play.

I still hold that view – but the appointment of a serious player like Davis does prompt a slight wobble.  If there is any Brexit politician who can do it, it would be him.

Estragon and Vladimir are still not getting up, but one could detect a twitch this evening.

**

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Law and policy round-up: Theresa May’s call for the UK to leave the ECHR

26th April 2016

Human Rights and ECHR

Theresa May, the Home Secretary, gave a speech yesterday which included a call for the United Kingdom to leave the European Convention on Human Rights.

The speech is set out in full at ConservativeHome, and (as it appears to be a statement on behalf of her department) it is also now on the Home Office site.

The statement is, of course, more about the politics of Brexit and succession to the Tory leadership than anything serious about law and policy.  It is a sort of counter-balance to her position on the UK remaining in the European Union.

For a number of reasons, not least that the Good Friday agreement requires the ECHR to have continual legal effect in Northern Ireland, this demand will go nowhere.

(I set out the seven hurdles for repeal of the Human Rights Act and for UK leaving the ECHR – including the problems presented by Northern Ireland and Scottish devolution –  in a post here last May.)

Given the office Theresa May holds, it is worth taking a moment to look at the Northern Ireland point, for the UK to leave the ECHR would require the UK to reopen and renegotiate the Good Friday agreement.

Any change to the agreement would, in turn, require fresh referendums in Northern Ireland and the Republic of Ireland.

It would also risk alienating the nationalists who accepted the Police Service of Northern Ireland only as long as it was subject to the ECHR.

It is, in all, a remarkable demand for a serving Home Secretary to make, and it is also extraordinary for the Home Office to post the statement on their own site as if it is government policy – and here it should be noted that policy on the Human Rights Act is (supposedly) under the Ministry of Justice, and not the Home Office.

This does not seem thought through. One suspects the Home Secretary does not realise (or does not care) about the implications of the UK leaving the ECHR – perhaps her desire to send a political signal to Tory back-benchers and the popular media is too great.

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The Boaty McBoatface Party

20th March 2016

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“The British public are trying (and succeeding) to have a £200 million boat named Boaty McBoatface.” (A viral tweet)

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This is not a party-political blog – there is good and bad, and liberal and illiberal, in all main UK parties.

But domestic politics, especially in Westminster, seem to be in a state of chaos.  The Conservative Government, in the days after Duncan Smith resigned, is imploding; Labour provides no effective Opposition; and the post-Coalition Liberal Democrats are a discredited irrelevance.

Shambles everywhere.

One may well sneer at American Trumpery – but we can’t be that far off having a similar ‘anti-politics’ mood here.

It would then just take a charismatic genius to start a populist, say, Boaty McBoatface Party and our political class would be buggered.

The usual barriers to populist extremism in UK politics – the parliamentary system and first-past-the-post voting – are not absolute protections.  It is not inevitable that populists will somehow always be kept away from power.

Ultimately, democratic politics is about legitimacy – particular politicians exercise power when it is legitimate for them do so, and those politicians in turn obtain (and lose) power within a wider system which has its own legitimacy.

But legitimacy – like any other form of belief – can disappear when minds change.

Unless the main parties get their respective acts together, then there is no inherent reason they will be the parties which the greater number of voters will vote for.

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Five things about David Cameron and sovereignty

9th March 2016

Here are five things to remember when you hear the Prime Minister praise the “sovereignty of parliament”.

First, ministers and officials are encouraged to use statutory instruments as much as possible, which do not get proper parliamentary scrutiny.

Second, the government has sought to cut the “Short money” which funds the scrutiny work of opposition parties in parliament.

Third, the government is seeking to push through the Investigatory Powers Bill through parliament at speed, just as it did with the Data Retention and Investigatory Powers Act.

Fourth, when the House of Lords (sensibly) rejected cuts to certain benefits (which were later dropped), Cameron sought to limit the power of the Lords.

Fifth, when the Speaker of the House of Commons was seen as too independent, the (then Coalition) government under Cameron attempted (and failed) to get the Speaker sacked.

Take together the increasing use of secondary legislation, the attempts to cut Short money, the rushing of primary legislation, the attempt to limit the Lords, and the plans to eject the Speaker – and the evidence does not show that Cameron and his government have any sincere respect for the sovereignty of parliament.

In fact, the evidence contradicts the notion that Cameron and his government believe in the rights and prerogatives of the legislature.

And this is without the ongoing tendency for major announcements to be leaked to the press, or to be revealed on chat shows, rather than on the floor of the Commons.

In essence, it is not the sovereignty of parliament which is being claimed by Cameron and his ministers, but the sovereignty of the government once it has a Commons majority; what a former Conservative Lord Chancellor called an “elective dictatorship“.

The rhetoric may be about the sovereighty of parliament, but the practice of the current government (as with previous governments) is to undermine parliament in as many ways as possible.

It is not Brussels which is the greatest enemy of the Westminster parliament but Whitehall.

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If you value this this blog and its free content, please do two things.

First, click on this link to Hammicks and have a browse.

Second, please subscribe for alerts for my new posts at Jack of Kent and the FT, and anywhere else.  Just submit your email address in the “Subscribe” box on this page.  Twitter and other social media platforms may not always be around – and so by subscribing you will get alerts for my posts.

The push-me-pull-yous of public policy: surveillance and freedom of information

1st March 2016

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“If you have nothing to hide then you have nothing to fear.”

Adage, attributable to someone or other.

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Surveillance and freedom of information are the push-me-pull-yous of public policy.

Those politicians and officials in favour of ever-more surveillance will assure you that if you have nothing to hide then you have nothing to fear.

But many politicians and officials – often the same ones urging greater powers of surveillance – want to weaken the freedom of information rights of the citizen against public bodies.  It would seem politicians and officials need the “safe spaces” which they also wish to deny the citizen.

Of course, this is a contradiction: the politicians and officials cannot – at least not intellectually – have it both ways.

At base the debates about surveillance and freedom of information are about the relationship of the citizen and the “state” – who knows what about whom.  And if politicians and officials want to know more about the citizens, then the same principle of transparency should first be applied to public activities.

After all, if politicians and officials have nothing to hide then they surely have nothing to fear.

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Estragon’s boot: the Conservatives delay the repeal of the Human Rights Act

27th February 2016

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Estragon, sitting on a low mound, is trying to repeal the Human Rights Act.

He pulls at it with both hands.

He gives up, rests, tries again.

*

According to a news report today, the Conservative government has “shelved” the proposals to repeal the Human Rights Act and replace it with a “British Bill of Rights”.

This is not a surprise. It was never going to be an easy task.

In the last week or so, the proposals – as well as a daft and dappy “Sovereignty Bill” proposal – have been nothing other than tokens in a political game between the Prime Minister and other Conservative politicians about supporting and opposing Brexit.  But the tokens turned out to have no value and no purchase in this game.

Last May this blog set out the “seven hurdles” for repeal of the Human Rights Act.  These hurdles included the facts that the Good Friday Agreement requires the European Convention on Human Rights to have local effect in Northern Ireland and that Scotland would have a veto on the replacement legislation.

These were real hurdles, and they could not be wished away in a game of tokens.

The hurdles are still there.

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The Human Rights Act is not likely to be repealed this Parliament.

Even if the Conservatives could agree on the proposals, and somehow had solutions to the problems presented by Northern Ireland and Scotland, the parliamentary arithmetic is against them: it is an issue which divides the Conservatives and would unite the opposition parties in both houses.

The Act is not a perfect piece of legislation, even for supporters of human rights law.  It actually does not do a lot which could not be done by courts drawing on other, domestic case law; but it does enough.

And the Conservatives have begun to realise that it is not worth the time and the effort of repealing and replacing it.

*

Estragon with a supreme effort succeeds in pulling off his boot. He peers inside it, feels about inside it, turns it upside down, shakes it, looks on the ground to see if anything has fallen out, finds nothing, feels inside it again, staring sightlessly before him.

“Nothing.”

*

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With apologies to Samuel Beckett.

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Law and policy round-up: Do Ministers know best?

10th February 2016

This is today’s law and policy round-up.

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Ministers really do know best, it would seem.

A couple of days ago the Attorney-General – whose office is still narked at losing the Evans and Prince of Wales letter case [2015] UKSC 21 – gave a speech where he explained why ministers were better guardians of the public interest than judges.

And yesterday at a parliamentary committee, Justice Minister Shailesh Vara responded defiantly to powerful recent criticism by the Master of the Rolls on the shoddy MoJ research into the effect of court fees.

But meanwhile, back in the real world, the Intelligence and Security Select Committee published a scathing report on how Ministers did not have any clue why they were asking for the surveillance powers in the new Investigatory Powers Bill.

It would appear Ministers do not know best, after all.

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Law and policy round-up: three points about Cameron’s prisons speech

9th February 2016

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Prisons policy

Yesterday was a busy and perhaps significant day for prisons policy.

The Prime Minister gave a speech devoted to the subject.  The speech was even trailed with two government announcements here and (on treatment of pregnant women in prison) here.

Frances Crook of the Howard League gave the speech a cautious welcome and Ellie Dunt, also of the Howard League, correctly observed that the most significant thing about the speech was that the Prime Minister was giving it.

There are three things worth noting about the speech and what may be behind it.

First, prisons are expensive even if “law and order” rhetoric is cheap. Wise politicians realise this and know that the current approach to prisons policy is financially unsustainable, regardless of what lines voters and tabloids clap along with.  The current policy also makes no real sense from a crime prevention perspective and is best seen as one devised by a mischievous demon.

Second, there is a move in right wing thought against custodial sentences as the default punishment for crime, especially in the United States.  (I wrote about this in 2013 at the FT.)  This development in right wing thought may be having an influence on Michael Gove.

Third, if such a speech is indeed the political price Micheal Gove has extracted from David Cameron for support on the EU referendum issue, then it is a good bargain.

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The damning Commons justice committee report on the criminal courts charge

20th November 2015

One of the most illiberal and misconceived measures adopted by the Ministry of Justice – perhaps by any government department in recent years – was the criminal courts charge.

Today the Commons justice committee has published a short but critical report. You should read it – the web version is here and a PDF is here.

The MoJ cannot easily ignore this; and it may be that is the point.  It is very helpful for a Tory-majority select committee to give “cover” to the MoJ in reversing this measure.  Indeed, you can easily imagine the polite conversation:

“Hello Bob”

– “Hello Michael.”

“Thank you for taking my call, Bob. Very kind. How are you?”

– “In good form Michael, mustn’t grumble. How are you?”

“I am well, thank you ever so much for asking. So thoughtful of you.  But I do need a little help. Dreadful policy inherited from Chris. We need to shift it, but we do need some cover.”

[Pause.]

– “I know, perhaps a damning report?”

“What a great idea, Bob, oh yes please. I knew you would think of something.”

*

I am certain no such conversation actually took place (and I am only being satirical).  The charge is so awful that being critical of it needs no external influence.

And if the MoJ does now proceed with the charge’s abolition (or fundamental change) then – following the MoJ’s delay last week of the botched criminal legal aid procurement – it would seem that almost every distinctive policy of Grayling at MoJ has now been reversed or improved.

 

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George Osborne’s National Spider Plan

17th November 2015

And so inspired by Jennie Rigg’s brilliant tweet, here are extracts from George Osborne’s speech today, with “cyber” replaced with “spider”.  

And it makes just as much sense.

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…And that’s what I want to talk to you about this morning. For government has a duty to protect the country from spider attack, and to ensure that the UK can defend itself in spiderspace.

Today I want to set out how we are fulfilling that duty. I will explain how we have invested in Britain’s spider security in the past five years, and to set out our plan for the next five.

The national spider plan I am announcing means investing in defending Britain in a spider-age. It is a key part the Spending Review I will deliver next week.

[…]

It is one of the many spider threats we are working to defeat.

Getting spider security right requires new thinking. But certain principles remain true in spiderspace as they are true about security in the physical world.

[…]

But GCHQ has a unique role. It is the point of deep expertise for the UK government. It has an unmatched understanding of the internet and of how to keep information safe.

It is a centre of capability that we cannot duplicate, which must sit at the heart of our spider security.

[…]

I can tell you today that right now GCHQ is monitoring spider threats from high end adversaries against 450 companies across the aerospace, defence, energy, water, finance, transport and telecoms sectors.

In protecting the UK from spider attack, we are not starting from zero.

In 2010, at a time when we as a new government were taking the most difficult decisions on spending in other areas, we took a deliberate decision to increase spending on spider.

We set up the National Spider Security Programme and funded it with £860 million.

And for the past five years we have been creating and enhancing the structures and capabilities that Britain needs to defend itself in spiderspace.

[…]

We have ensured that our military systems are properly secured from spider attack.

We have built the National Spider Crime Unit so spider criminals are brought to justice.

We established the Computer Emergency Response Team for the UK, and the Spider Information Sharing Partnership so companies could share what they knew.

We developed clear guidance for businesses, including the Spider Essentials scheme, which already has over a thousand companies accredited.

[…]

We built spider security into every stage of the education process. We established Spider First and spider apprentices to make sure that we got the talent we needed coming into the field.

And we undertake exercises so we know what to do when there is a serious spider incident.

[…]

We have built a world-class range of tools and capabilities that Britain needs to stay safe from spider attack.

We are widely regarded as top or near top in the world.

But nice though it would be to sit on our laurels, the truth is that we are not where we need to be. We are not winning as often as we need to against those who would hurt us in spiderspace.

The truth is that we have to run simply to stand still.

The pace of innovation of spider attack is breathtakingly fast, and defending Britain means that we have to keep up.

At the heart of spider security is a painful asymmetry between attack and defence.

[…]

A few years ago mounting a sophisticated spider attack meant having all the skills that each stage of the attack required, from gaining access to the network to designing the payload that was to go into it.

[…]

Last summer GCHQ dealt with 100 spider national security incidents per month. This summer, the figure was 200 a month. Each of these attacks damages companies, their customers, and the public’s trust in our collective ability to keep their data and privacy safe.

[…]

We will be boosting the capabilities of the National Spider Crime Unit, so that – in partnership with their counterparts around the world – they attack the assumption among too many that spider crime is risk free, and comes with little risk of consequences.

[…]

And we will build in the National Spider Centre a series of teams, expert in the spider security of their own sectors, from banking to aviation, but able to draw on the deep expertise here, and advise companies, regulators, and government departments.

Building the National Spider Centre will be a hugely ambitious and important undertaking that reflects this government’s commitment to making the UK secure in spiderspace.

[…]

If we do not act decisively, the skills gap will grow, and limit everything we want to achieve in spiderspace. 

So we will launch an ambitious programme to build the spider skills our country needs, identifying young people with spider talent, training them, and giving them a diversity of routes into spider careers.

[…]

As all of you who work in the sector know, what is needed are specific spider security skills, building on particular talents.

And we need to tackle this problem on a number of fronts including in our universities. But we need to make sure there are other routes into the spider workforce.

[…]

Of course, we need not just great skills but great British companies as well.

If Britain is to be a world leader in spider, and stay at the cutting edge of spider technology, we need the innovation and vigour that only these companies can offer.

We need to create a commercial ecosystem in which spider start-ups proliferate, get the investment and support they need, and are helped to win business around the world.

[…]

I am glad that there is already so much happening in this space; I am happy we have the founders of Spider London with us today.

And I am delighted that Paladin Capital has just announced it is establishing a dedicated spider fund in the UK; we can be proud that they have chosen London as its base.

We will build on this energy. We will help commercialise the extraordinary innovation in our universities. We will provide training and mentoring for our spider entrepreneurs.

We will be establishing two spider innovation centres – places where spider start-ups can base themselves in their crucial early months, and which can become platforms for giving those start-ups the best possible support.

I have talked before about an arc of spider excellence – stretching from this building, through Bristol and Bath to Exeter – to make the South West a world leader in Spider Security.

Today I can announce that one of the two innovation centres will be here in the South West of England, in Cheltenham, reflecting the extraordinary talent in this place, and our aspiration that this talent should help drive our spider sector.

Government can itself provide a huge boost for British spider start-ups, if it can be smart enough to marshal its procurement in a coherent way.

This should be a win-win – our spider start-ups need endorsement, investment and first customers.

And government, from our military and GCHQ to the Government Digital Service and the NHS, need to be able to procure excellent spider security hardware and services.

So I can announce today that we will create a £165 million Defence and Spider Innovation Fund, to support innovative procurement across both defence and spider security.

It will mean that we support our spider sector at the same time as investing in solutions to the hardest spider problems that government faces.

Of course, our involvement with industry on spider goes well beyond the spider sector. We need to make sure that Britain has the regulatory framework it needs, particularly in the sectors we define as the Critical National Infrastructure.

[…]

Our vulnerability as a nation in spiderspace goes well beyond the critical national infrastructure.

[…]

We have a collective interest in the spider defences of individual companies across the British economy.

[…]

If we are to tackle the asymmetry between attack and defence, then we need to establish deterrence in spiderspace.

[…]

Part of establishing deterrence will be making ourselves a difficult target, so that doing us damage in spiderspace is neither cheap nor easy.

[…]

We need to destroy the idea that there is impunity in spiderspace.

[…]

We reserve the right to respond to a spider attack in any way that we choose.

And we are ensuring that we have at our disposal the tools and capabilities we need to respond as we need to protect this nation, in spiderspace just as in the physical realm.

We are building our own offensive spider capability – a dedicated ability to counter-attack in spiderspace.

We have built this capability through investing in a National Offensive Spider Programme.

[…]

The threats to our country in spider space come from a range of places – from individual hackers, criminal gangs, terrorist groups and hostile powers.

[…]

To those who believe that spider attack can be done with impunity I say this: that impunity no longer exists.

[…]

That means they need to be prepared for hybrid conflicts, played out in spiderspace as well as on the battlefield. A 21st Century military has to operate as effectively in spiderspace as it does on land and sea, in the air and space.

Our commitment to spending 2% GDP on defence means we can invest in a military that is spider trained, spider secure, and spider enabled, with the ability to fight in every domain of future conflicts.

[…]

We need to keep fighting to preserve a free, open, peaceful and secure spiderspace.

Agreement that international law applies in spiderspace has been an essential first step.

And we need international norms of behaviour in spiderspace, so that freedom is matched by responsibility.

[…]

We need our police forces to work together to ensure that less and less of the world is a hiding place for spider criminals.

And we need to help our partners develop their own spider-security – as we share a single spiderspace, we collectively become stronger when each country improves its own defences.

For the past five years we have been investing in the spider security of our partners as well as our own.

We have helped establish the outstanding Global Spider Security Capacity Centre in Oxford. In the coming years we will step up these efforts, mindful that we are bound together in spiderspace.

The national spider plan that I have announced today is bold, far-reaching and transformative in numerous ways.

[…]

But it will make Britain one of the best protected countries in the world; it will give our companies and citizens the tools they need to stay safe from spider attack; and it will create jobs and prosperity.

With the ability and dedication of GCHQ’s staff, our new National Spider Centre, and the ideas and skills across our country, our plan will make sure that Britain remains a world leader in spider, and give Britain an important edge in the global race.

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