Friday, 7 December 2018

Leavers' vote



The UK government has managed to negotiate a deal with the EU that is so bad, it is equally awful to both the winners and losers in 2016. Some achievement.

The deal does look rather close to what the Labour party was asking for until recently. As far as I can understand, Labour's agreed Brexit position is that they still don't actually have one, but they do agree that they want a general election. If they win, they can go from being an opposition with no agreed position on Brexit, to being a government with no agreed position on Brexit.

Perhaps electing a life-long eurosceptic to lead the UK's main pro-EU party, one year ahead of a referendum on EU membership, was a mistake.

Defeat in Parliament, which we're told is inevitable, might provide the opportunity to amend the Northern Irish backstop, if the EU can be convinced that conceding small but crucial changes could prevent no deal – or prevent the EU being lumbered with a truculent and volatile UK for the foreseeable future, an outcome just as bad again for both parties.

Leavers who resisted it at the time should probably have the good grace to thank those Remainers who insisted on a meaningful vote in Parliament. And with the same breath, they should curse the unforgivable stupidity of those same Remainers who insisted we should make no preparations to leave without a deal. As was loudly pointed out at the time, if no deal isn't an option, there'll be no choice but to accept any old deal on offer – which is where we are.

A Leavers' Vote


The most desirable outcome is amendment of the Withdrawal Agreement (as argued here). If the EU won't agree to reasonable amendments to the backstop protocol, or if Parliament won't approve such an amended deal, then there will finally be grounds for a People's Vote – or, to ditch that dismally transparent euphemism, a 'second referendum'.

Leavers should abandon the notion that a second referendum is necessarily a gateway to remaining. Some of their opponents seem to believe that, with unwarranted certainty, and they are probably wrong. A Leavers' Vote is well winnable.

Remain face a stiffer challenge than the one they flunked in 2016, and there's been little sign of any meaningful reflection over why they lost then, and what they should do differently second time around. Leave would, once again, have a big and hard-to-beat message, which they would run again and again – that abandoning our previous decision to leave, and remaining, would be a forced move. We would be staying because the EU had decided, as a matter of policy, to offer intolerable terms of exit, and because the UK government (specifically the Treasury) had deliberately blocked the alternative escape route of leaving without an Article 50 deal. Choosing to remain would mean that our constitutional settlement (which EU membership impacts greatly) and our trading arrangements would be determined, essentially, by duress. That would be an unhappy, unsustainable, and unconscionable state of affairs. No amount of questionable economic forecasting, or indignation at red buses, would turn that into a rational decision.

Grounds for a Leavers' Vote


The grounds for a second referendum are fairly simple. The government can have no grounds for believing, or gambling, that any one of the three available options complies with the mandate issued by the 2016 referendum. To choose any of them would therefore require fresh consent from voters, and to proceed without it would risk overturning a democratic decision made on a large turnout – which is to say, would risk enormous dysfunction. 

We have happily moved beyond the argument that the 2016 referendum result can be disregarded as 'merely advisory' – an argument that was only heard from the losing side after the vote, and not before it when they stood a chance of winning (in which event the result would have been, presumably, binding as all hell).

Those grounds:
  1. Remain: This is, at the moment, the only option that has been clearly ruled out by voters.

  2. The deal: What May and Robbins have negotiated falls pitifully short of delivering on control over laws and money. May could take a risk, and gamble that her deal is close enough to what voters demanded that it would satisfy the mandate – but unless she's privy to some fancy insider information, that's not a sensible gamble. The cost of gambling and losing could be a schism between Parliament and the majority of voters.

  3. No deal: It seems likely that few people voted Leave in 2016 in the contemplation that there would be no deal at all. Even if this is not true, a referendum would be the only practical way to leave without a deal viable – Parliament will not countenance leaving with no deal, but could be compelled politically to take that option if a referendum result mandated it.
All three options are new courses of action that, to be taken, would require a new decision from voters. If they are the only options available, a new referendum must follow, provided of course that an extension to Article 50 could be agreed by all EU member states. The EU has said that they would be prepared to extend the Article 50 period in order to allow for an election or referendum, so it is not an impossibility.

Option 1: Remain vs. Leave redux


If there is consistent and credible evidence of a change of popular opinion against Brexit, such that asking voters to choose again between leaving and remaining would not be otiose and waste of time when there is none to spare, then the 2016 question should be put to voters again, but only if the following conditions were met: 
  1. Remain can only be on the ballot if it is known a) that A50 can be revoked and b) what conditions if any the EU would impose on the UK following revocation, especially regarding the UK's exemptions; and

  2. It is clearly understood that, in the event of a leave vote, it would be left to Parliament to decide whether to leave with May's deal or with no deal; if the present situation recurred and Parliament rejected both May's deal and no deal, then a further referendum would follow so voters could make the decision whether to leave with the/no deal.
There are all sorts of questions about procedure – would any A50 extension leave enough time for two referendums? Could Parliament and the Electoral Commission pre-prepare for the potential second referendum in scenario 2 at the same time as preparing for the first, or would the legislation and Commission approval have to wait until the outcome of the first remain/leave vote – and if so, would the A50 extension period leave enough time for this.

Option 2: Remain off the ballot


If, on the other hand, there is no consistent and credible evidence that a leave/remain ballot would deliver a different decision to the one voters made in 2016, then voters should be asked simply if they wish to leave with May's deal or no deal. 

There would be difficulties. It is possible some EU member states would not be prepared to extend A50 for the sake of a referendum that did not, or might not, allow for the possibility of remaining. Similarly, the benefit of an extension for the UK would be that it would allow time for the preparations for no deal that are necessary to make it a halfway-viable option – however it is likely that some member states (or one predictable member state at least) would be unwilling to allow the UK that benefit, as the EU would then sacrifice the enormous leverage it has as a result of the UK's lack of preparation for no deal.

The 'People's Vote'


If the UK left with May's deal, then there should be an understanding that Parliament could vote at a later date on whether to hold the 'People's Vote' that some Remainers have been demanding – that is, a further vote held when voters are in possession of the facts about future trade with the EU, which wasn't the case in 2016 and wouldn't be the case in the scenarios above. In accordance with that stated purpose of the People’s Vote (emphasis on stated), such a vote would have to be held when we know the facts – i.e. after trade negotiations between the UK and EU have concluded, and the legally binding terms of the deal are on paper. 

By that point, of course, we will have left the EU. The People's Vote would therefore have to be a choice between accepting the trade deal negotiated between the parties, or rejoining the EU as a new member state, as provided by Article 50. EU membership would be an option, but remaining would not.

It was always the case, since the Lisbon Treaty was agreed, that voting 'with all the facts' could only be done after we had left. Under the terms of Article 50, the trade deal can only be negotiated once the member state leaves and becomes a third country, which makes perfect sense. The EU couldn't conclude a new trade treaty with one of its own members – that's what the founding EU treaties are for. Until conclusion of the new treaty, A50 allows only for a non-binding political declaration of what the parties plan to agree in the future.

So the proposition of People's Voters that we could have a second referendum where Remain is on the ballot and where we know the terms of the future deal was always a non-starter (see here for my thoughts on why the arguments for PV were always broken-backed). But Remainers will of course be free to agitate for a vote to rejoin.



A future referendum or two might finally, after much misguided agitation for one, be justified. It might even get us out of this mess. But it would also be divisive – and maybe, depending on the EU’s position, impossible.

The viability of another referendum is not, however, a reason why we should have one. Now that a further referendum is justified and viable, its usefulness is as a threatened outcome – if the government does not do everything it can to amend the Northern Ireland protocol, to make it consistent with the 2016 vote (and with the national interest), then it must face up to the inevitable consequence of another popular vote, and all of its difficulties.

There is, in legal theory at least, the possibility of using the ‘referendum lock’ of the European Union Act 2011 to force the government to hold and win a referendum as a condition of increasing the power of an EU competence. The legal arguments about whether the Act can be used in the Brexit context, having been drafted with treaty amendment in mind rather than exit from the treaties altogether, are fairly diverting, and it is interesting that both Leavers and Remainers have flirted with using the Act to force the government’s hand. However, the Act cannot serve to impose pressure on the government, as the power to repeal the Act is also in the government’s hands, by virtue of the European Union (Withdrawal) Act 2018.

Friday, 16 November 2018

Heading for no deal

The proposed deal could be just about acceptable, if certain crucial amendments were made. In its current form, it is not acceptable. 

The deal is unacceptable because it imposes onerous and unequal terms on the UK, in the form of the backstop, while the pledges contained in it to avoid the backstop coming into force, or to end it if it has already come into force, are rendered potentially meaningless by lack of detail and clarity as to how that might happen, and how the parties could enforce the pledges agreed to.

Amend the backstop text

The text of the Northern Ireland protocol makes positive noises about avoiding a backstop. The EU and UK ‘shall use their best endeavours to conclude, by 31 December 2020, an agreement which supersedes this Protocol in whole or in part’ – the boilerplate ‘best endeavours’ has been held up by the government as a negotiating triumph, incidentally. 

Article 2 of the Protocol makes provision for a subsequent agreement that will supersede the backstop agreement.

There is also, at article 20, a review mechanism that would allow both parties to assess whether (presumably following either a trade deal, or the introduction of sufficiently unobstrusive border surveillance technology) the backstop could be ditched:

If at any time after the end of the transition period the Union or the United Kingdom considers that this Protocol is, in whole or in part, no longer necessary to achieve the objectives set out in Article 1(3) and should cease to apply, in whole or in part, it may notify the other party, setting out its reasons. 

The Article 1(3) objectives are broadly worded:


  • to address the unique circumstances on the island of Ireland
  • to maintain the necessary conditions for continued North-South cooperation
  • to avoid a hard border 
  • to protect the 1998 Agreement in all its dimensions.


After the giving of notice, the Joint Committee of UK ministers and their EU counterparts will meet to discuss it. The exit from the backstop would work as follows:

If, following the consideration referred to above, and acting in full respect of Article 5 of the Withdrawal Agreement [duty of full mutual respect and good faith], the Union and the United Kingdom decide jointly within the Joint Committee that the Protocol, in whole or in part, is no longer necessary to achieve its objectives, the Protocol shall cease to apply, in whole or in part. In such a case the Joint Committee shall address recommendations to the Union and to the United Kingdom on the necessary measures, taking into account the obligations of the parties to the 1998 Agreement.

As nice as all of this would be nice if it came to pass, the process is laced with ambiguity.

There are no specific tests for what adequate protection of the Good Friday Agreement should look like. When would a border be too hard for the purposes of article 1(3)?

Because no criteria for satisfying the ‘unique circumstances on the island of Ireland’ are specified, the parties in turn are not obliged to acknowledge such sufficient steps as might be made. Say the text had instead specified, for instance, a degree of border facilitation that both parties agreed would obviate the need for a hard border. Had that been the case, then if the UK were one day to propose a demonstrably and suitably viable facilitation scheme, the EU would be bound to accept it as a ground for disapplying that part of the Protocol. It would be held to its commitment.

What we have instead is a wide scope for one of the parties to dismiss resolutions proposed by the other party, even if those steps might objectively lead to the outcome. The wording leaves plenty of room to reject any argument that the standard set by art. 1(3) has been met – ‘border would still be too hard’, ‘the GFA protection proposed isn’t adequate protection’ etc.

The commitment to negotiate with ‘full mutual respect and good faith’ would be a weak obstacle to any unreasonable attempt to defeat the exit provision. Bad faith is hard to prove, however blatant it may feel, and given that exit from the backstop will require consensus, it would be a nuclear button – good luck getting agreement after accusing your negotiator of acting in bad faith. Criteria of adequacy would be a much more effective safeguard to enforce reasonable behaviour among the parties – no one gets hurt by the accusation they have misconstrued the definition of when border facilitation is adequate.

This is anyway all rather academic. As weak a protection as article 5 is, there are no signs that such protection as it offers could be enforced. There is no clear enforcement mechanism for the backstop.

We know that under article 8 of the Protocol, the UK may not seek arbitration on matters of mutual recognition as they apply, under the backstop, to Northern Ireland.

We know too that article 15 rules that the Protocol, inasmuch as it touches upon EU law, is to be interpreted in strict conformity with EU case law – stricter conformity, that is, than will be imposed on UK judges interpreting the Withdrawal Agreement after the end of the transition.

But in the event that EU negotiators acted in outright bad faith, in breach of the agreement, then we don’t know precisely how the UK could force the EU to stick to what it agreed. Inasmuch as we can guess how it would be fudged, the outcome would be likely to be disproportionately bad for the UK. Enforcement would be delivered either through the provisions of the Withdrawal Agreement proper – that is, under the indirect jurisdiction of the CJEU – or under the direct CJEU jurisdiction provided by the Protocol. 

In other words, the EU’s own court will be likely to decide the matter – a miserable travesty of basic fairness. Nor, note, is this a Brexiteer fetish – both the Law Society and the House of Lords EU Committee advocated strictly neutral arbitration of the Withdrawal Agreement.

The EU’s court will to decide, too, whether in its judgment the UK has merited self-government, or whether it should remain an EU satellite.

The danger here is real, not abstract, not legalistic. It is reasonable to assume – in fact it is almost certain – that despite the joint commitments made to avoid it, the persistence of the backstop will disproportionately favour the EU’s interests. As long as the UK is under it, it will not be able to compete with the EU by adopting a more competitive regulatory regime. Moreover, the spectacle of the UK tethered, humiliated and voiceless will be a useful demonstration to other restive member states of the consequences of trying to leave – rather like the captive foe paraded in the Roman triumph, that reminder of the folly of trying to resist Rome.

The UK will have every reason to escape the backstop, so that it can once again be free to make decisions and regulate its trade according to its own interests. The EU will have good reason to keep it in place for long as it can. 

The UK government must revise the text of the agreement to ensure there will be a fair, clear and objective procedure for balancing, and if necessary ignoring, the competing interests of the EU and UK in this matter, so that the necessity or otherwise of the backstop can be judged according to its proper agreed purpose.

There is, admittedly, an argument from practicality which says that, even if the Protocol could be gamed by the EU, fears about being trapped in the backstop are overblown. It would be such an anomalous, bizarre situation, for an economy the size of the UK to be an EU satellite, that it would prove unsustainable. Even the French – the EU’s Brexit hardliners – are said to have conceded as much.

But that is cold comfort. It would mean the UK would only become a sovereign state, free to determine and legislate for its own interests, when the leading member states decided that we had ‘had enough’, or when the whole thing had become a bit embarrassing. We cannot gamble our future as a self-governing nation, able to act in its own interests, on what Emmanuel Macron thinks reasonable and practicable. It would be simply absurd and demeaning for any nation, whatever its economy, to have its fate determined in that way.

Even if it risks no deal, and even if it takes a change of Prime Minister, the UK must re-negotiate this part of the Protocol and insist on objective tests for removing the backstop, and an independent tribunal to adjudicate on whether those tests have been satisfied. 

Guy Verhofstadt may assert that the text may be amended no more, but this might not be true. It has probably already been butchered by the negotiating process – presumably at some point there were provisions for enforcement in the Protocol, which the EU would only have agreed on the basis (legally unavoidable, they would say) that the CJEU be ultimate arbiter of any aspect touching upon EU law. They may have been subsequently removed when the UK balked, thus leaving the current bleeding chunks. Unilateral exit was never on the cards, even if it was worth a shot.

Indeed the wording of article 20 hardly looks final:

If, following the consideration referred to above, and acting in full respect of Article 5 of the Withdrawal Agreement, the Union and the United Kingdom decide jointly within the Joint Committee that the Protocol, in whole or in part, is no longer necessary to achieve its objectives, the Protocol shall cease to apply, in whole or in part. In such a case the Joint Committee shall address recommendations to the Union and to the United Kingdom on the necessary measures, taking into account the obligations of the parties to the 1998 Agreement.

That seems to say that the backstop will end when the ministerial Joint Committee decides it can. If so, what will be the purpose of the further ‘recommendations on necessary measures’? Will the backstop actually only cease when those measures are taken? Or will the necessary measures merely be the steps needed to implement the decision taken by the Joint Committee?

Suffice to say, there are good reasons to argue that this text needs further work, in various ways. It cannot be agreed without it.

Ditch the backstop?

Say the UK government convinced the EU to amend the agreement text – would that be enough to make the deal desirable?

No, but might it be tolerable, just about, under duress?

Amending the text won’t remove the fundamental problem with the backstop – that it is virtually guaranteed to deliver a worse trade deal than we would otherwise get. If the EU offered even a very bad deal, which was only minimally better than the backstop, the UK would have no option but to accept it – the alternative would be worse, and we would be bound in international law to accept it if we turned down the initial offer. The UK will have no leverage to push for a deal in its interests. The EU could simply sit mute at the negotiating table, confident that come 1 January 2021 the backstop will be triggered, and the UK will be kept safely in the EU’s regulatory orbit with no say over the rules.

That will always be the case as long as the UK is forced to agree to the liability under a deal – specifically indemnifying Ireland, at great cost, against any harm caused by Brexit – before it receives any commitment as to the benefits. The risk of the backstop could be worth bearing, if the risk could be balanced against the benefits. If the EU mooted a lucrative trade deal, then the UK should reasonably moot putting its money where its mouth is. And if the EU promised, then the UK should also promise.

The sequencing imposed by the EU means that the EU moots a trade deal, in the political declaration, and in return the UK must promise to put its money where its mouth is.

No government should choose to expose to such risk the interests of the country it represents. It’s a quaint idea, perhaps, but I like to think a government would do no less to protect its nation’s interests than a lawyer for his or her client.

The question is – does the UK still have an effective choice, if the alternative is now no deal? 

There certainly was a choice, at one point. The EU’s claim that the backstop was designed to preserve the Northern Irish was either misinformed, or a false pretext, and should have been challenged – no thoughtful, or genuine stance on the Northern Irish settlement could have led the EU to avert discord by preserving one border important to Nationalists, while hardening another important to Unionists. Article 7 of the Protocol shows that the agreement has indeed managed to pay Paul merely by robbing Peter.

One motivation EU leaders alluded to – to champion the Irish dog in the Ulster fight, out of EU solidarity – was also grossly inconsistent with the Good Friday spirit of cooperation.

In less adversarial terms, it was also clear that the seminal form of the backstop, in the December report, was broken-backed and didn’t reconcile the differing aims of the two parties. Both could point to the paragraphs on the Irish border and claim different things. Rather than try vainly to hold the other side to an agreement that either didn’t exist between them, or hadn’t been properly formulated, it would have been much better to accept that they hadn’t managed to nail down an agreement on the first go, and return for a second go.

It is too late now to ask the EU to indulge misgivings that should have been voiced almost a year ago. The only way to reopen the whole issue of the backstop would be to force it open – say if a new Prime Minister took over, extended the negotiating period (no mean feat), and offered the €39bn on condition that the EU agreed to shift the Irish border to the trade negotiations, where it always belonged. It would mean paying a huge amount of money simply to get our negotiating party to do what anyway was merely reasonable and to be expected. Such, however, is the difficulty of negotiating with a hegemon whose actions are justified not by what is reasonable, but by the extent of its power.

In truth, this looks very unlikely. It seems the UK, if it accepts the deal at all, will have to accept it with the backstop, accept the consequences of its failed approach to negotiations, and see what chances the future will hold.

Who’s to blame for this?

Literally all concerned. 

The terms of Article 50 restricting negotiations to two years certainly put excessive pressure on decisions that needed to be made carefully. It’s hard to blame the drafters for that, and still less likely that they contrived it to pressurise any member daring to leave, given that it was drafted either in the expectation that it wouldn’t be used but would be a symbol of the enduring sovereignty of member states, or in the expectation it could be used as a poison pill for undesirable members. Whatever the intention of the drafters, it is clearly true that the EU used the Article 50 time limit as a very effective tool.

The time pressure would not have been felt so keenly by the UK if it had delayed triggering Article 50 in order to work out what it actually wanted from negotiations and how it would approach them. The longueurs after giving notice, when the cabinet seemed to have a settled direction on nothing, were shameful. 

Advice that is wise after the fact, questioning why the UK did not do more fact finding before rejiggering Article 50, for instance through a Royal Commission, tends to be conveniently forgetful of the pressure that was on May at the time. Not least was the unwelcome and unexpected pressure created by the insistence of some Remainers that they would keep campaigning against a referendum result that, for them, had decided nothing. Maybe my own memory is faulty also, but this seemed to drastically increase the sense that Brexit urgently had to be enacted lest it be strangled at birth.

This also highlights the main culpability of Remainers, or at least a significant number of them. The refusal to accept the result (from the start – Gina Miller admitted she called her lawyers on the morning of 24 June 2016) was senseless, and the prime (though not the only) cause of the divisions that followed. Fixation on the weak legal status of the referendum decision blinded them to their blunder – what made the referendum legitimate was the understanding that the result would resolve the argument for the nation as a whole. The shared assumption that, whatever the argument and division leading up to the vote, we would collectively follow where the result led. Rejecting that shared, underpinning assumption pulled the rug from under everyone’s feet. The keystone was the certainty that the result would decide the matter – something Remainers were anxiously certain of in the run up to the vote, or else what were they so worried about? They removed that keystone, and cannot blame others because everything fell apart subsequently.

Leavers on the whole won the argument about the big political ideas, but left it far too late to grasp the policy details (hence the backstop disaster). Remainers grasped the details, but still don’t seem to understand the politics.

It is also fair to say that Leavers were wrong to predict that the EU would prioritise its trade interests and be quick to make a deal with the UK. Remainers rightly point out the hypocrisy of Leavers lambasting the EU for its rigidity and ideology, and then staking the nation’s future on the EU’s pragmatism.

There are two saving graces, however. First, Leavers cannot be damned for failing to predict an EU response to Brexit that was not just rigid and unpragmatic, but also self-harming. The willingness of the EU to acknowledge its fear of the weakness of its union, and the fickleness of its members, has been extraordinary. The aversion to a successful Brexit betrays, quite openly, a misgiving at the heart of the EU that membership might not be the best choice for members, and that alternatives to the union might better realise their ambitions and protect their interests. The clumsy and reckless use of the term ‘cherry-picking’ – which EU leaders seem to think is rather clever – only reveals that some of the central institutions and policies keeping the union together are undesirable mere gristle, which members tolerate in return for the cherry of free trade. Reducing EU membership to this transactional basis is suicidal folly – what basis for the union remains once members realise that the world outside the EU (and it does exist) can offer transactions with better cherry to gristle ratios?

The EU’s response to Brexiteers’ appeal to look to its economic interests was unpredictable – it disclosed the unbridgeable gulf at the heart of the project, between the internal perspective of the cadre pushing for ever closer union in itself, and the external perspective of the members, for whom the EU is, fundamentally, a cost-benefit transaction and possibly not a very good one.

As with the suicide bomber, how can you grapple with a foe who doesn’t care about his own life or safety?

The second saving grace is that Remainers may indeed justifiably lambast Leavers for a naively optimistic view of the pragmatism and flexibility of the EU. It has proved a doctrinaire, hegemonic and inflexible institution. However the Remain argument must continue ‘… and we should continue to give this institution supreme power over our lawmaking and make it the guardian of our prosperity.’ Good luck to anyone chancing their arm with that argument.

Finally, the past two years has shown the poverty of the EU’s technocratic approach. The bankrupt ideology of the ‘landing zone’ – a term much beloved of trade wonks – saw the EU use the negotiating process to gradually close down all of the UK’s escape routes, until there was only one landing strip remaining, and that was precisely the spot where the EU wanted us.

Once the technical work of marking out the landing zone had been done, the business of landing the deal politically was merely adventitious. The space within the political argument would take place had been marked out by the technocrats.

The problem with narrow landing zones is that they tend to make landing a dangerous business. Especially when there are cross-winds – and the political cross-winds in Brexit are fearsome. Whatever difficulties follow from here, including no deal, will be in large part due to the EU’s fetish for expanding the technocratic sphere of influence to the exclusion of political considerations. As the politics of the matter is only temporarily sidelined, not fully suppressed, a backlash is at some point inevitable.

The prevalence of this bankrupt philosophy in the EU project, and the dread of the backlash it will one day unleash, are ample reminders of the wisdom of withdrawing from this experiment.

Friday, 7 July 2017

Criticism of Sir Martin Moore-Bick – fair or not?

A brief post on former Court of Appeal judge Sir Martin Moore-Bick, who has recently come out of retirement so people can shout at him and tell him what an arse he is.

Who'd be a judge ey? I hope he doesn't turn out to a fencer and/or gay, or this might turn into a pile-on.

It's possible some of the criticisms aren't entirely unfair, though most probably are. 

David Lammy's assertion that Moore-Bick is unsuitable because of the colour of his skin is beneath contempt. It is also sadly predictable. Far from landing any blows on Moore-Bick, Lammy's outburst, as well as his demand made one day after the Grenfell fire for corporate manslaughter charges, demonstrate much more clearly Lammy's complete unsuitability to continue conducting a review into BME criminal sentencing.

The accusation from Labour's Emma Coad that Moore-Bick is a 'technocrat' was at least diverting. Are judges technocrats? I'm not sure a public official who facilitates the rule of law can be called a technocrat – a nomocrat maybe? The source of a technocrat's power is his or her knowledge and expertise – a judge's power derives from the law, which he or she expertly applies. That feels like an important difference.

It is obviously true to say Moore-Bick is part of the establishment – as an ex-judge he couldn't be anything else. That doesn't make it fair to say he is therefore not impartial. This is probably part of the wider problem of identity politics – if identity determines how people think and act, then impartiality is more or less impossible. I doubt arguments as to Sir Martin's integrity and scrupulousness will do much to defeat this widespread mode of thinking – but it should still be called out for what it is, i.e. prejudice.

Similarly, it could well be true to say that Moore-Bick comes across as forbidding and somewhat patrician. When I saw him sit in the Court of Appeal – in a case involving housing law, coincidentally – he certainly had that air. However it would take an extraordinarily closed mind to say that he therefore could not be a fair investigator of facts. I recall also that he was sharp as a knife.

The complaint that Sir Martin would be incapable of sharing Grenfell residents' emotions about the fire may or may not be fair, I don't know. It's certainly harsh. But it is also irrelevant – his job is to investigate the facts, and an emotional investment in the disaster is more likely to hinder than help the investigation. This should be a fairly compelling argument to make in Moore-Bick's favour, but in our new Age of Sentiment it probably carries less weight than it should. Which is a shame.

The criticism that Sir Martin specialised in commercial rather than criminal law is similarly irrelevant. If his remit were to decide questions of law, then maybe this would be relevant – but his job is to investigate the facts of how the fire started, and fair and thorough examination of facts and expert evidence is something he has done throughout his judicial career. It is also misleading to exaggerate his commercial specialism – at all stages of his judicial career he will have tried a wide range of cases (presumably including criminal cases when he was a High Court judge).

Against all of these criticisms must be set the welter of testimony from barristers and ex-judges to Moore-Bick's integrity and fairness.


Nzolameso v City of Westminster


The only criticism that might have any real weight concerns Moore-Bick's decision, later overruled by the Supreme Court, in Nzolameso v City of Westminster [2014] EWCA Civ 1383. Lord Justice Moore-Bick, as he was then, held, with the agreement of two other appeal judges, that it was lawful for Westminster City Council to house a homeless mother and her five children some 50 miles from her previous home, on the grounds that the Housing Act 1996 allows an authority to house applicants in another district if it is not 'reasonably practicable' to house them in their home district. Moore-Bick's reasoning was that determining 'reasonable practicability' must include consideration of the council's resources, staffing, as well as the needs of other applicants requiring housing.

The Supreme Court rejected this argument on appeal, with a forcefulness that seems to suggest to some that Moore-Bick's decision was perverse. Baroness Hale reversed the decision on the grounds that laws regarding the welfare of children not considered by the Court of Appeal (and possibly not argued before it) weighed against relocation in a different district; that the reasons for the decision to house the claimant outside Westminster were not properly evidenced or explained to her; that the council had not explored other, closer housing options before proposing to house the claimant in Milton Keynes.

Baroness Hale's most damning criticism of Moore-Bick's judgment is that he was excessively lenient in assuming that the council's decision makers must have followed the proper steps in coming to their decision, even though there was insufficient evidence for such an assumption. Even though reasons for the decision were not given, Moore-Bick was confident that they would have been the right ones. Were it law, the effect of his judgment could be to deny citizens the right to have decisions by public bodies reviewed – if a citizen did not know how a decision affecting her had been made, then she couldn't see if the decision had taken into account the proper lawful considerations, nor could she apply to a court to enforce the proper decision-making process. It would, in other words, allow a local authority to evade accountability.

On the face of it, then, Moore-Bick does seem to have given very generous leeway to the council in this case. It is also impossible not to notice that while his judgment makes mention of the claimant's illness, it is only in the Supreme Court judgment that you read just how unwell and vulnerable she was.

On the other hand, however, it is almost certain that Moore-Bick wasn't motivated by a desire to give local authorities an easy ride, or by a perverse desire to short-change the claimant of her civil rights. He makes clear Parliament's intention in passing the legislation – to relieve pressure on authorities with insufficient housing stock – and also acknowledges the severe pressure on council finances and resources. He also acknowledges the competing needs of others applying for housing. The decision is fairly clearly wrong – the extent of Moore-Bick's leniency to the council makes the Supreme Court's later rebuke fairly predictable – but it seems to result from an over-readiness to assume that, because Moore-Bick himself understood the urgency of the housing crisis and Parliament's intention to tackle it, the council's decision must have been informed by a similar understanding. He got the balance wrong. It does not follow that Moore-Bick disregarded the claimant's situation, or takes the side of authorities over citizens in need.

It should also be said that this is only one judgment, among goodness knows how many others Moore-Bick made. If this judgment is the strongest ground for demanding he step down, then it is right to bring it up and debate its significance, but it can't on its own prove his unsuitability – particularly in the face of the legal profession's unanimous respect for him.

Govian medicine

Typically excellent article by Ed Conway in today's Times. Though my opinion on what is excellent economic analysis probably doesn't count for much.

He makes another plea for creative, radical thinking from government in order to exploit the opportunities of Brexit and to solve Britain's productivity puzzle.

The depressing subtext throughout is that our political class is not equal to those challenges. It's likely we'll only find a way to unlock economic opportunities if we first find politicians who are imaginative and open-minded enough to spot and pursue those opportunities when they arise.

Why are such politicians so hard to find? I suspect one answer lies in the execrable Nick Timothy and Fiona Hill. Increasingly, political thinking is done by advisors who understand everything about policy, but little about politics and people – frontline politicians are then mere delivery mechanisms for getting wonk-derived policy out to voters.

The problem with this lack of joined-up thinking was demonstrated by the social care debacle. The policy was devised without enough input and oversight from elected politicians whose job it is to understand what voters want and what solutions they might accept. When voters rejected it, May was left holding the baby. There was little she could do to credibly defend or adapt the duff policy, because she'd never really owned it in the first place – there's not much the postman can do when Amazon pick the wrong book from the warehouse shelf, other than throw up his hands. And there wouldn't be much he could do about it even if he were compelled to try. Unfortunately, elected officials can't throw up their hands and renounce responsibility – responsibility is their job. May couldn't pass the buck, but neither could she manage the situation effectively because it wasn't fully one of her own making. So she took the only remaining option, which was to squirm.

It's surely time to move away from this rigid division of labour between thinkers producing policy content on the one hand and elected politicians acting as quasi-deliverymen on the other. The creative thinking behind policy needs a greater input from the elected ministers who will deliver it and (in an ideal world, perhaps) who have a greater understanding of the people who hold politicians to account and who are affected by their decisions.

That means more politicians like Michael Gove, Frank Field, Oliver Letwin. Even if people don't like Gove, or his politics, we are not going to make the most of opportunities, and improve public life more widely, without politicians like him. Gove and his ilk may be unpopular, but maybe people need to get over themselves – this is a question of necessity. To coin a phrase, there is no alternative.

If the rise of Momentum, and the particular chap they support, continues, then the need for thoughtful politicians –who can decide policy as a matter of issues and principle, instead of mere partisanship – will be all the greater. 

Thursday, 6 July 2017

Afghan war crimes allegations 2: The Blackman defence

Lord MacDonald, the former Director of Public Prosecutions and current Warden of Wadham College, Oxford, has called for a judge-led inquiry into the ditching of the Royal Military Police inquiry. There is a clear public law question as to whether it was lawful or rational for the MoD to stifle the RMP inquiry, and whether it actually did stifle it. There is also a criminal law question surrounding the soldiers’ alleged conspiracy to plant weapons on the corpses of civilians.

However I’m most interested in whether the RMP could have any success in bringing murder charges, as they intended to, in light of the Court of Appeal’s decision in the Alexander Blackman case. 

Blackman had been accused of killing a wounded Taliban militant in cold blood. The video evidence seemed to show as much, and at first instance he was convicted of murder by a military court. The Court of Appeal subsequently agreed in its judgment that he had the partial defence of diminished responsibility, which led to a substituted conviction for the lesser offence of voluntary manslaughter. Blackman’s responsibility for killing the militant was diminished, the court held, because his role as a marine sergeant in Helmand put him under ‘quite exceptional stressors’ [109] leading to an ‘abnormality of mental functioning’ per section 2 of the amended Homicide Act 1957.

My concern is that, if followed closely, the judgment in Blackman would mean that any infantryman or marine accused of killing a combatant hors de combat in an intense and stressful campaign would be able to run the partial defence of diminished responsibility. As infantry fighting is almost always intense and stressful – the job is still commonly described as ‘closing with and killing the enemy’ – the effect of Blackman might be to make it almost impossible for any infantryman to be convicted of murder, no matter how callous and calculated the killing. If stress is intrinsic to being a soldier on the front line, does Blackman create an intrinsic defence to murder?

This in turn engages matters of public policy. It is clearly in the national interest to maintain a cadre of soldiers who are able to kill lawfully in combat for purposes of national defence, who are trained to do so in a professional manner strictly distinct from outright murder, and whose conduct does not diminish the standing of the armed forces or of the nation. If it becomes impossible to identify and punish murder when it is committed by infantrymen and marines, then the professionalism of the armed forces and the national standing would be harmed. As, of course, would justice itself.

On the other hand, however, as soldiers have rights and duties under law as everyone does, and do not form a special class of citizen with special privileges or restrictions, they must in turn have the right to a lawfully valid defence such as diminished responsibility.

How, then, can these two conflicting aims be reconciled? How can we insist that soldiers kill lawfully and professionally, in intrinsically stressful circumstances that would defeat civilians’ ability to act rationally, while also accepting that in some circumstances soldier’s responsibility to kill lawfully and professionally is diminished by the mental stress that combat can cause?

I argue that a balance can be struck, but it is not to be found in Blackman.

Critique of Blackman


The Court of Appeal found that Blackman did indeed kill the injured militant in cold blood, but that his responsibility for doing so was diminished by an ‘adjustment disorder’, a psychological impairment caused by the stresses of combat in Helmand province. He was not in his right mind when he committed the killing.

In making this finding, the court applied section 2 of the amended Homicide Act 1957. The section says that a defence of diminished responsibility requires the following:

  • an abnormality of mental functioning 
  • which arose from a recognised medical condition,
  • and substantially impaired the defendant’s ability (a) to understand the nature of his conduct; (b) to form a rational judgment; (c) to exercise self control.
If it can be proved that the abnormality explained why the defendant killed, then the defendant cannot be guilty of murder but can still be convicted of manslaughter. Importantly, it is for the defence to prove, on the balance of probabilities, that the defendant suffered from the abnormality – if the defence is made out to that standard, then the prosecution must rebut it beyond reasonable doubt in order for a murder charge to stand.

It is certain that due to Blackman’s condition the charge for murder could not have been proved beyond reasonable doubt, and highly likely that the prosecution could not have rebutted a defence of diminished responsibility to that standard. I am less certain, however, that the defence of diminished responsibility could have been proved on the balance of possibilities in the first place.

The psychological assessment of Blackman which uncovered the adjustment disorder was carried out some time after the incident, which led the prosecution to object that it could not be proved that his mind was impaired when he killed the militant. The court seems to have rejected this contention on the grounds that Blackman, previously an exemplary soldier, was showing signs of stress before the incident, and was in such difficult and stressful circumstances at the time of the killing that it could be inferred that the adjustment disorder determined his behaviour when he killed the militant. Those circumstances were:

  • Returning to UK to scatter ashes of recently deceased father;
  • B had not received the full amount of pre-deployment training;
  • had not been trained in Trauma Risk Management
  • junior officer killed whilst on patrol, thus B lost the support of his junior officer (‘of material significance as a stressor’)
  • powerful evidence that members of the unit under B's command were always on edge and did not feel safe at night
  • Padre did not visit B’s post because it was too dangerous (‘evidence of a further stressor’
  • The base was ‘during summer months under constant external threat and difficult to reach safely. It was isolated. It was without doubt austere.’
  • J company had been hardest hit by the insurgents, that they were losing ground to the insurgents and by the end of the tour were combat weary.
  • B's unit was undermanned: the previous multiple had been 25; the multiple under the appellant was 16
  • Unit was required to patrol between 5 and 10 hours a day over rough ground in heat that was normally over 50 degrees Celsius when carrying a minimum of 100lbs of equipment. The court rejected the submission that this was irrelevant to the psychiatric assessment
  • All men exhausted and deprived of sleep, but B particularly so as sgt
  • B regarded himself as responsible for welfare of troops.

Viewed in totality, this is a compelling list of stressors, particularly when the subsequent proof of the adjustment disorder is taken into account. There are, however, two difficulties. 

First, the wording of the Homicide Act specifically requires a subjective impairment that impairs the defendant’s internal mental functioning and, subsequently, how he acts – is proof of the external circumstances endured Blackman enough to infer, on the balance of probabilities, an internal state of mind? As I discuss below, what if he just powered through? 'Cracked on' as the military say. It seems to me that the court gave undue weight to objective circumstances without determining how they caused an impairment in Blackman’s reasoned and reflective self-control.

Second, the circumstances listed above, while probably unendurable for a civilian like myself, reflect in large part the imperfect realities of being an infantryman or marine fighting in the difficult Helmand campaign. The physical ordeal, the less-than-adequate training and manpower, the stress of imminent danger, the horrors of violent killing – it is overwhelmingly likely that most infantrymen, especially those who fought in Helmand, would be able to cite similar stresses if accused of murdering the enemy. 

Consider next that, as the court heard from an expert witness, ‘about 20-25% of combat troops deployed to Iraq and Afghanistan at some point suffered from a mental health difficulty’ – and consider too that any accused soldier would probably be legally advised to get himself within that 20-25% bracket. 

The corollary, then, of the court’s emphasis on external circumstances as a means of ascertaining Blackman’s internal state of mind is to create a precedent in which almost any infantryman accused of battlefield murder could avail himself of a blanket partial defence.

An objective duty of resilience?


How can the Homicide Act, and the Court of Appeal’s construction of it, be interpreted so as to allow infantrymen the right to the diminished responsibility defence, without it being a blanket defence?

First, a solution that could not work.

There are obvious policy grounds for demanding that soldiers behave lawfully even when faced by stress that would impair others – that is, largely, one of the main points in training people to be soldiers. As Joseph Heller asserts in Catch-22, seeking to get out of combat is merely proof that you are sane – only an insane person would do otherwise. However, while it is reasonable to acknowledge that soldiers often inhabit a world far removed from the world of civilians of lawyers and judges, in which mind-bending stresses are the norm, it could not be just to demand legally that soldiers meet an objective, raised standard of mental resilience. 

First, at a certain level of mental functioning minds control people, people don’t control minds. If an impaired mind caused someone to do something illegal, he or she could not be held culpable for failing to meet some objective standard of resilience, as doing so was beyond his or her control – to hold that person culpable would be to punish him or her for not having a different mind, essentially for not being a different person. The need for soldiers who can kill in stressful situations without becoming insane or criminal is important, but not so important that it could justify such obvious unfairness. Soldiers are people.

Second, it would not be just to hold soldiers to a higher legal standard, such that a soldier would be liable for murder where a civilian would be liable for manslaughter, simply on the grounds that the soldier should have been more resilient. That would be to say that the state could legally punish soldiers for failing to meet super-human standards of resilience. Again, this would be unfair as soldiers are human and cannot be punished for being any less.

It is difficult to see how soldiers could be forced to accept a higher, less diminishable responsibility of reasoned self-control without the above problems biting. So any solution to the conundrum must be found within the current provisions of the Homicide Act – once it is shown as a matter of fact that the mind of any defendant is impaired, thus causing him to commit homicide, the partial defence of diminished responsibility becomes available.

Subjective resilience


The Homicide Act 1957 says that a recognised medical condition must 
substantially impair the defendant’s ability (a) to understand the nature of [his] conduct; (b) to form a rational judgment; (c) to exercise self control.
In specifying that the ability to exercise self-control etc. is the ability of the defendant, the Act leaves it open to the court to take into account as a matter of fact the subjective capacity for self-control of different defendants, even in the face of mental impairment. It is uncontroversial that infantrymen and marines acquire through their training a heightened ability to form rational judgments and exercise self-control in extremely stressful circumstances (as accepted by the court at [71]). Should Blackman have had to prove, then, that the impairment was such that it diminished a capacity for self-control that was already unusually heightened?

There is a fair argument that the court should have paid much more to the following:

  • the typical resilience of infantrymen, and the extent to which Blackman showed more or less of such resilience;
  • the typical stress-related mental impairments faced by infantrymen in combat, and the extent to which Blackman’s impairment exceeded them; and
  • the likelihood that the mental impairment suffered by Blackman exceeded his soldierly self-control and resilience in the face of particular stresses, such that it was, on the balance of probabilities, the cause of his killing the injured militant.

This is a purely factual question. If such an approach were suggested to a jury in a similar trial, it would have to consider questions about mental causation and might even have to reject expert psychiatric evidence. The authority of Golds says that a jury can be invited to reject expert evidence, though the judge must suggest some rational basis for doing so. It would fall within Golds for a judge to ask a jury if it believed that a particular soldier’s mental resilience would have allowed him to retain reasoned self-control in spite of a proven mental impairment – though I accept that in practice this could be difficult.

A legal question also arises – this approach might increase the burden on the defendant such that he had to prove not only the mental impairment but also a) his levels of resilience and b) that the impairment defeated his resilience. While Blackstone’s Criminal Practice is fairly clear in submitting that the switched burden in section 2 of the Homicide Act 1957 does not infringe the Article 6 right to a fair trial, it is possible that any addition to that burden might.

Conclusion


I think the Court of Appeal was wrong to put such emphasis on Blackman’s circumstances – it shifted the attention from his mental state, which the Act requires, and created the possibility of a blanket defence for soldiers who have killed unlawfully in intense combat. I am fairly sure that, if the Blackman decision were followed, the special forces soldiers currently accused of murder in Afghanistan would by default be able to take advantage of the diminished responsibility defence – particularly given reports of the over-deployment and exhaustion of special forces units, and the greater regularity with which they are required to kill at close proximity (in so-called ‘night raids’ for instance).

It is consistent with the Act to take account of a defendant’s subjective resilience, and doing so might be a way of keeping the DR defence open to soldiers, while still defending the policy that trained soldiers should be expected to tolerate heightened (but not infinite) stress, and kill professionally but not murderously.

The question is part of a wider, very difficult problem of litigating what happens on the battlefield. It is undesirable to say that soldiers should form a separate class of people with separate legal duties, as it would then be consistent also to say that they should have special rights and privileges beyond those enjoyed by other citizens. Yet it is also absurd to disregard the fact that fighting in war is far removed from the realities most citizens face. It is likely this will remain a conundrum.

Monday, 3 July 2017

Afghan war crime allegations 1: Accountability

I recently read an extraordinary investigation by the Sunday Times Insight Team alleging that a UK special forces unit working in Afghanistan turned bad.

The allegations are:
  • The unit (presumably a squadron within the SAS) killed Taliban suspects having hooded and handcuffed them;
  • Soldiers planted weapons on dead suspects to justify killing people who may have been totally innocent farmers not linked to the Taliban;
  • The MoD then wound down the Royal Military Police investigation into the killings, perhaps believing that it could be buried amid the widespread scepticism about UK war crimes investigations caused by the Iraq Historic Allegations Team and Phil Shiner.
A couple of points of interest here, one political, the other legal.

The political issue: accountability deficit


First, it’s notable that a regular army officer stationed nearby was concerned that UK special forces were operating freely and without accountability (quoted in the Times, behind the paywall). 

I’ve banged on about this before – this is a manifestation of a systemic problem facing the entire UK armed forces, and especially the army. The UK is caught in a bind: on the one hand it has valuable military assets (well-trained infantry, including the special forces) that any government would want to keep – they buy the UK credibility with the US, and once wound down the institutions that create the talent couldn’t simply be spent back into existence. If it was a matter simply of money, the UK would send its officers to be trained in the Gulf States, not the other way round.

On the other hand, however, Basra and Helmand showed that the UK doesn’t have the logistical clout or the money to field large armies. It has valuable assets, but the only way to realise their value is to offer them to allies, mainly the US, as boutique assets that can be integrated into allies' larger, more capable command structures. The result is that UK taxpayers spend billions training soldiers only for them to be commanded and deployed by American generals who are not accountable to the Defence Secretary nor, ultimately, to Parliament.

The UK special forces are an extreme example of this – they are one of the most attractive items in the UK boutique, and as such ministers are happy to oblige American officers by allowing them to be placed directly under US command, usually in so-called joint task forces. Mark Urban, the excellent defence journalist, has written extensively on this.

The dangers are obvious: 
  1. Loss of political control over military assets that should be accountable to the taxpayers who fund them, and to nation which stands to have its reputation tarnished if they behave criminally.                                                                                                               
  2. The possibility that UK soldiers, acting effectively as mercenaries, will become decoupled from the ethical and legal standards of the UK armed forces, and ‘go native’ in their new surroundings. It’s important not to make an unfair insinuation – the British soldiers in question may have gone rotten without any outside help – but it should be noted that their US counterparts have long stood accused of similar heavy-handedness (to be treated with caution, but this well-researched Intercept article is pretty damning).
  3. More generally, any aggressive military unit stands to become a liability if it is allowed to feel the usual shackles have come off. It is notable that in the Alexander Blackman case, which I discuss here, some attributed Blackman's crime of murdering an injured militant to a failed command structure which left his unit to its own devices.
As much as any government should want to avert these dangers, it might be the case that maintaining the UK armed forces in a ‘complementary’ role, thereby risking the dangers, is the only way to get value out of them. The alternative would be to run down assets which are of value to the country and couldn’t be easily rebuilt. No government elected for five years should seek lightly to strip assets developed over centuries.

It’s difficult to see a good way out of this bind – and difficult to foresee today’s political class possessing the imaginativeness to find a middle way.