Structural injustice – a critique

The death of George Floyd and the ensuing focus on inequalities faced by black Americans and Britons has seen much discussion of ‘structural injustice’ or ‘structural unfairness’. The concept raises uneasy questions. That the UK is structurally unequal, against various groups, is indisputable. It is indisputable too that, as a decent society, we should investigate the causes of those inequalities so we can remedy them. But the assumption that our structural inequalities must be the result of some sort of endemic injustice is questionable. And the notion of a collective injustice, enacted through a structure rather than by morally responsible individuals, is itself an injustice – and, for those combatting inequality, probably self-defeating.

What is structural injustice?

Belief in what is currently labelled ‘structural injustice’ tends to assume that evidence of inequality is proof of an underlying structure of unjust prejudice. This involves conflating clear instances of injustice – for instance the killing of George Floyd – with statistical inequalities, for instance the disproportionate frequency with which members of a certain community are arrested. 

It is asserted that the unfair event is merely one instance in a structure of injustice, which causes and explains the wider statistical pattern of inequality. This structure derives from the (indisputable) racism that characterised our society in the past. The disadvantages our predecessors unfairly and knowingly imposed on minority groups are inherited in the present day as cycles of poverty, and disbelief that meritocratic advancement is possible. Whereas the majority, even though they may no longer hold expressly discriminatory beliefs, inherit an ‘unconscious bias’ which perpetuates the cycle of unfairness.

The argument that structural inequality is caused by structural injustice ultimately relies, whether explicitly or implicitly, on the notion of some subliminal prejudicial malice or ‘force’. Indeed, it couldn’t be otherwise. There is in present-day Britain too little evidence of explicit identity-based malice to claim that it amounts to a structural problem. The only option is to point to the isolated instances of prejudice that do occur (and which indeed can be frightful) and postulate that they form merely the tip of an iceberg – they are the visible manifestations of a much wider, hidden of network of prejudice that underlies and shapes our entire society.

Inequality vs. injustice

Inequality needs to be distinguished from injustices such as racism or sexism. ‘Inequality’ describes a statistical fact, where goods are distributed unequally in a society. It is morally bad or unsatisfactory if a society is unequal. It is virtually certain that an unfair society will also be unequal, and it is often the case that unequal societies are also unfair. However inequality does not necessarily arise from some morally wrong act such as discrimination. 

Injustice, on the other hand, is a moral wrong. It is the failure, for which some other person can be held responsible, to treat a person in accordance with their dignity. A society that deprives members of certain benefits – educational opportunity, legal fairness – on the basis of their ethnicity, or any other immutable characteristic, would be both unequal and unjust. Such a society would, moreover, be unequal because of its injustice.

So asserting that persistent inequality is an injustice has certain effects. It imposes moral (or even legal) liability on those treating others unfairly, who are in turn entitled to a remedy for their mistreatment. When the alleged wrong is ‘structural’, and enacted by society as a whole, how then can we know who should be liable, and who has been wronged?

Is justice ever ‘structural’?

It isn’t clear what ‘structural’ injustice is. Can justice be done ‘structurally’? Or does justice proper always concern the treatment of individual persons?

Consider a case where an individual had suffered unjust discrimination, for reasons of race or gender or sexuality. In weighing up the case, we would (one hopes) pay no attention to whether society is otherwise structurally fair to that individual and his or her group, or whether the mistreatment in question did anything to disrupt the overall structure of fairness. 

Doing so would be simply bizarre. The treatment of others has no bearing on whether the individual in question has been wronged. The wrong to that individual cannot be mitigated or excused (or amplified) by appeal to wider trends, or to social ‘forces’ or structures. The treatment of the individual is the sole relevant measure of fairness. 

The wrong may have had the effect of enforcing a social structure – by rejecting the victim as a despised ‘other’ alien to the majority. And the wrong may have been part of a trend whereby such wrongs are regularly committed against persons belonging to the victim’s group. But the wrong still consists in the failure to treat the victim with the dignity he was due – that measure of dignity does not change in light of how others are treated. It is inalienably his as an individual person, and only as such. Therefore it cannot be averaged down in relation to the group he belongs to, and nor can it be increased or decreased by virtue of his belonging to that group (as would happen e.g. in a caste system).

A utilitarian approach where fairness is measured in aggregate, according to the structural whole, risks serious injustice against the individual. We know where this leads – real wrongs suffered by individuals are dismissed as statistically trivial, and ‘structural’ wrongs are blamed on other individuals who may be entirely blameless. 

We insist on the individual as the measure of fairness precisely because we know so well the brutality that ensues from utilitarian alternatives.

Group injustice

So if structural, or aggregate, injustice is irrelevant in fair assessment of whether an individual has been wronged, does it follow that it is always irrelevant because justice always, ultimately concerns individuals? I suspect it does follow.

It might be fairly objected that of course the measure of fairness in individual cases must be the individual him or herself, because his or her treatment is the issue at hand we are trying to resolve. However this approach can’t suffice when we consider unfairness against social groups as a whole.

Here too, however, the ultimate measure of fairness will, irresistibly, be the individual. Two specific reasons stand out. First, the alleged structures of unfairness are so unpredictable, and so inconsistent in their workings, that we can only tell whether they are at work by abandoning any assumption of a structure, and instead adopting assessing cases individually. Second, social groups only have moral status by virtue of the individuals that compose them.

Inconsistent structures

When are structures at work, and how do we know when they drive our actions?

To give a rough domestic example – there are, no doubt, various inequalities between my wife and me, for instance in the division of labour around the house. These might be said to be manifestations of a structural injustice. If that is so, then what explains other non-structural inequalities in her favour – regarding salary, say? If the injustices between men and women are structural, then it is unclear what pattern the structure takes and what determines when the structure applies and when it doesn’t. The occurrences of injustice cannot be random, as then they would not be structured or ‘systemic’. 

Now turn to a more contentious example – the killing of George Floyd. This was an example of two structural inequalities – the high rate at which African-American men are stopped or arrested by police, and the high rate of violence (including unlawful violence) used against them during arrest. 

Only a court can decide the matter, but it seems beyond doubt that Floyd’s death at the hands of police was an injustice and a crime. The court will also presumably rule on whether the killing was racially aggravated.

However the officers’ suspicion that he had committed the crime of using forged currency, and the decision to arrest him, were not obviously motivated by racist malice – though, again, that may be for a court to decide. It seems at least arguable that officers would have suspected, and arrested, any citizen in those circumstances. 

The ‘structure’ of racism seems to have operated unevenly – it cut out and cut back in again. The structure wasn’t ostensibly, or necessarily, at work in driving the officers to arrest him, but it probably was at work in motivating them to inflict unlawful violence. One instance of inequality (the killing) was almost certainly an injustice, but the other (the arrest) probably was not. The aggregated statistics – the details of the inequality – won’t get us anywhere in deciding whether there was an injustice.

Let’s say instead that the officers were motivated purely by racist malice in arresting Floyd, and by sheer luck it turned out that in fact there were legitimate reasons to suspect he had carried out an offence. Even so, we could not know this unless we had assessed the individual case and explored the officers’ motives – structural injustice theory errs by falsely presuming, without evidence, what we in fact do not know.

So even in the most flagrant example of injustice against a member of a marginalised group, we cannot assume that injustice underpins every inequality, or that the justice of the matter can simply be read off from aggregated statistics. The alleged ‘structure’ of unfairness is an unconvincing explanation because it is so unpredictable. It does not have the patterned regularity that we expect of a structure. If it really is the determining cause of inequality, then what explains the gaps in the structure where it does not produce the expected effect? There may well be something going on, and it may be unjust in some way – but the evidence is too patchy and inconsistent to infer the hidden, monolithic structure of injustice that social justice theory posits.

To say that an instance of inequality is an instance of injustice, we have to look at the individual case, not just the statistics. And having looked at the individual cases, we must then, and only then, ask ourselves if in aggregate they constitute a pattern or structure of unfairness. If they do, then our society is indeed structurally unfair. That case has not yet been made out.

Groups are not persons

The second reason for rejecting a notion of group justice – social groups only have moral status by virtue of the individuals that compose them.

To do justice is to allot to someone the treatment that is properly due to them – in accordance with their innate dignity as persons (i.e. their human rights), with their merits, and also with their actions (e.g. by way of punishment for crimes). But there is no fair way we could measure a group’s merits or wrongs ‘structurally’ such that we could reward or punish them according to their due. Any group reward or punishment would almost certainly result in undue, and therefore unfair, punishment or reward of certain individuals. Contrary to what justice demands, we would not treat like cases alike.

Leaving aside artificial constructs such as bodies corporate and other ‘legal persons’, we have no measure, either in law or morality, of what is due to a group of persons considered as an entity. Any attempt to protect a group’s human rights, or any other entitlement to dignity, would only succeed if it protected the fundamental dignities of the individual members of that group – only individuals can exercise such rights as freedom of expression, for instance, or choosing to participate in a protest, or the right to a fair trial. Any claim that the group’s rights or entitlements had been infringed could only be assessed fairly by individuating the claims. 

A group does not have ‘personhood’ – it is not an entity that has identifiable rights and duties attaching to it that can be enforced. The group’s individual members do, however. Any attempt to assess properly and fairly an injustice towards a group will inevitably devolve into an assessment of how that group’s individuals are treated. If all or most of those members have their rights infringed, or are otherwise treated unfairly, then and only then can we talk of a structural injustice. Appeal to vague ‘structures’ of mistreatment might suffice in asserting sociological generalities, but they cannot suffice for determining moral and legal rights and wrongs.

Indeed, social justice advocates often seem to accept as much. The most vocal protests against alleged structural injustices derive much of their moral force from striking mistreatment of individuals such as George Floyd or Eric Garner. The rot sets in with the next, unwarranted shift in the argument – the claim that these indisputable injustices result from a hypothetical ‘structural’ malice, that the same malice causes persistent inequality, and that the privileged majority are therefore morally responsible for both in equal measure.

The social justice advocates may well turn out to be right – it could be that, if we recorded instances of individual injustice, we would see a clear structured pattern of unfairness towards individuals belonging to certain social groups. In that case, our society would indisputably be structurally unfair, and we should urge its reform. 

So why not simply assume that society is structurally unjust, if that would be the likely outcome of any investigation into individual instances of injustice? The answer to that, I argue next, is because the consequences of such an assumption are repugnant, and harmful to the pursuit of fairness.

Fairness towards the majority

However distasteful it may seem, we must also be fair to the majority that is alleged to inflict structural injustice, whatever their alleged privilege. If we must presume that structural inequality is a structural wrong, then who is responsible? On what grounds is it fair to attribute responsibility? And will the attribution of responsibility ultimately further the aim of ensuring just treatment of all persons, including those alleged to be victims of structurally unfair treatment?

It is clear that structural inequality is not necessarily the result of wrongdoing that should be remedied and/or punished – or at least, that it is odd to treat it as such. Much democratic political debate concerns the reduction of structural inequalities – in education, income, access to resources – but political parties do not compete with one another by offering voters ever more generous ‘compensation’ packages or by pledging to punish the wrongdoers who inflict the inequality. Rather, they propose to undo the inequality by way of reform. It is an established principle of our political morality that we do not remedy social inequalities in the same way that we remedy wrongs done by and to individuals.

The structural injustice critique rejects that principle. Structural unfairness is both a social problem, and a moral wrong committed on undeserving persons by responsible persons. We must perform, and demand from others, penitence for the wrong of structural injustice.

We should apply the same principle that we apply in assessing whether a group has been treated unjustly – in the individual case, has someone done a wrong for which they should be held responsible? Any other approach would merely result in further injustice – the accusation of a ‘structural’ wrong would unfairly condemn individuals guilty of no malice, whatever the bad actions of some of their fellow citizens. Any demand that such individuals do penance, or suffer some detriment by virtue of their complicity in a structural injustice, would fall foul of the just prohibition of collective punishment.

It may be argued – and, in veiled terms, it sometimes is argued – that the injustice of a blanket accusation of structural injustice is a small price to pay for the injustices past and present done against marginalised groups. In purely commensurate terms, that may be true. But no argument that two wrongs make a right deserves to be taken seriously.

Problems of conscience

All sorts of problems arise when we say that matters of moral conscience are determined by subliminal social forces. Accusations of identity-based malice are extremely serious, so I should know when the ‘structure’ is driving my actions, and what I need to do in order to free myself from the structure. But how can I? If the malice manifests itself through ‘unconscious bias’, then can any conscious attempt at moral reflection and improvement help me, or will the structure just assert itself as a brute social force despite my individual conscience?

This is, I think, important. There is little point in trying to do good, if some overriding social force undermines my good intentions and curses me to complicity in some structural malice. What reward would I get for doing the right thing other than further shame?

Rather strangely, it seems those most willing to accept that they are corrupted by structural injustices are people who are scrupulously conscientious in their attitude to marginalised groups. Many of them have no doubt been schooled in the Jesuitical rigours of social justice theory, and can take in their stride the antinomy of being the best person they can while accepting that the original sin of structural injustice makes their efforts largely pointless. But what of someone who starts out as a bigot? There would be little point in the bigot changing his or her mind, and rejecting prejudicial malice, as they would anyway remain guilty of the unconscious bias that underpins structural injustice. If their bias is unconscious, can they even change their mind? And if his bias is the result merely of social conditioning, then why should he take responsibility for it and attempt to better himself? After all, it isn’t his fault.

Or let’s take the less extreme example of a decent, liberal person who, following a training session, comes to realise all of her unconscious biases. That’s not to be sneered at – it might result in her treating others more fairly. However, could she ever be sure that she is ‘cured’ and no longer part of the structure of unfairness? The training received might be revealing, or educational, but it is not transformational. It doesn’t change her fundamental cognitive capacities. This person was reflective and self-conscious even before she underwent training – if she couldn’t previously understand her own mind and the forces that shape it, then why should she able to in the future? The self-awareness that she gains by doing the training will be as delusory as the self-awareness she possessed previously – the structure can still work its malice on her. If accused of complicity in the structures of unfairness, she would have little or no defence, as her accuser could defeat any claim of self-improvement simply by pointing to the insidious power of structures. What is the point of any attempt at self-improvement in the face of structural unfairness, if it will not result in real progress?

A ghost in the machine

It is unclear whether we could ever defeat accusations of structural injustice, even if our society were to improve dramatically. The charge of structural injustice could, I suspect, be levelled reductively, in any instance where inequality exists. The accusation can defeat any objection that our thinking is being misrepresented, or that we in fact lack the malice attributed to us, because accusers claim special insight into a ‘structural’ mindset that overrides our conscious selves.

Just how far could this be taken?

Imagine a future society in which, through some sort of scientific development, discriminatory malice had been wiped out – say the gene that causes it had been identified and switched off. 

Such a society would nevertheless almost certainly contain some inequality between groups, simply because it is highly unlikely that every social good would be distributed in exact proportions to each demographic within that society. Diverse societies are highly unlikely also to be uniform. Some of those inequalities could feasibly become ‘structural’ – through custom, automatic thinking, choice etc., a pattern could be established, even in the absence of discriminatory malice, whereby a certain group would receive an unequal share of society’s advantages.

Even in such a society, the social justice theorist would still have no conceptual difficulty in asserting that the inequality was caused by structural injustice – that no change to our minds, even if wrought physically, could prevent the malign workings of the unconscious; that changes to individuals would do nothing to defeat self-replicating social forces of discrimination; that the legacy of the past, before discrimination was abolished, still determined our actions through inherited vocabulary and institutional structures.

This suggests that even enormous, real achievements in eradicating discriminatory malice could be dismissed out of hand simply by alleging that structural injustice is the cause of inequality. For the social justice theorist, the reality of moral progress and conscience can always be denied, simply because inequality continues to exist, and the ghost of structural injustice can always be conjured to scare away any notion that our society may have the capacity to become fairer.

Perhaps this is taking matters too far. Perhaps, indeed, I am being unfair, and social justice theory is not wholly baseless – it might require certain non-trivial conditions to be satisfied before an accusation of structural injustice can be well made. However, we should be aware of the dangerous overreach inherent in ‘ghost in the machine’ explanations, of which structural injustice is an example.

A ghost in the machine is a causal factor that is posited rather than discovered. An explanation of this kind claims to have identified some underlying cause, or ‘x factor’, that explains why things are as they are – for instance, the claim that structural injustice explains why our society is unequal, or the claim that the existence of the soul explains how we can exercise free will.

Ghost in the machine explanations hypothesise or assert an explanatory principle, which may be helpful in providing a neat and elegant explanation, but unhelpful in that the posited explanatory factor might not actually exist. Indeed, a ghost in the machine explanation might do no more than beg the question, by giving a name to the causal factor being sought, without actually identifying it or proving its existence. Seventeenth-century scientists seeking to explain why certain materials were combustible posited the existence of a fire particle, which they called ‘phlogiston’. They managed to provide an answer to the question ‘what makes certain substances combustible?’ However the answer – ‘phlogiston’ – simply meant ‘that thing which makes certain substances combustible’. It identified a man-made hypothesis, an idea, rather than the physical item that causes fire.

In some cases, ghosts in the machine are easily banished. Scientists abandoned the notion of phlogiston as the cause of combustion because eventually further empirical evidence became available – the existence of oxygen – and they no longer needed to rely on a hypothetical construct.

In other cases, these ghostly explanations can haunt us indefinitely, particularly where empirical evidence to confirm or deny the hypothesis is unavailable – regarding the existence of the soul, for instance, or indeed the workings of structural injustice. These explanations may be unverifiable, but are difficult to dismiss because they are also unfalsifiable – perhaps some mysterious trans-mental malice does lurk in the unconscious minds of white heterosexual males, and this explains patterns of inequality? I can’t say I know for a fact that it doesn’t. 

The ghost in the machine is doubly difficult to banish if denying its existence is blasphemous or, as in the case of structural injustice, might lead to denunciation, damage to reputation or even loss of one’s job.

That structural injustice theory is a false belief, or a fiction, is not necessarily harmful in itself – people are free to believe in fictions, and it is churlish to chastise someone simply because they hold an irrational belief when I think they should not. If a fiction is harmful, however, then its persistence, and its resistance to rebuttal, is a serious problem and a legitimate concern for us all.

Why this matters

This matters because structural injustice is a pernicious fiction. It is likely to harm us. It holds that social conditioning overrides our ability to reason about morality as individuals – that individual conscience is powerless before the depredations of subliminal social forces.

This is dangerous and wrong. It is demeaning to deny individuals’ capacity for moral agency and conscientiousness. If we are simply the programmable plaything of social forces, then we are less than fully human. It is beneath the dignity of each of us to accept the arguments of social justice theorists.

This is not to say that we do not at times think automatically, or accept received wisdom uncritically. It would be absurd to say that the unfair treatment of women in our society in centuries past resulted from a majority of men each deciding individually, by way of conscious reflection, that women should be treated as second-class citizens. That seems simply improbable. The lives of women improved, however, because members of our society – female and male – were not limited to the systemic, automatic thinking of their day. They defied accepted wisdom by changing their minds – they believed in, and effected, fairer laws and social customs. 

Theories of structural injustice are harmful because they risk ruling out that possibility. They make social structures all-powerful, and encourage us to believe that conscious belief and moral reflection have no power to change them.

We need to believe, and ought reasonably to believe, that acts of conscience are efficacious and can change society. The civil rights movement of the 1960s, and indeed the Black Lives Matter movement, did not arise from some sudden surge in structural fairness. They came about because people changed their minds about what is fair. Members of those movements believed that acts of conscience could change the minds of others and could change the world for the better.

Reducing structural inequality is unquestionably a worthwhile and necessary aim for our society. It will enable more persons to flourish to their fullest extent, maximising the happiness of individuals and their contribution to our society’s success. Achieving that goal will require the belief, held in good faith, that we are doing the right thing – that actions from conscience can be effective, that minds can change, and that we are not the mere plaything of structural forces. The theory of structural injustice undermines all of those necessary conditions of making society more just. 

Conclusion

Structural injustice is not a meaningless term. In apartheid South Africa, black individuals were systematically treated unfairly, in accordance with express legal requirements – a clear structural injustice. In Northern Ireland prior to the reforms of the 1970s, Roman Catholics were subject to systematically unfair treatment, not through expressly discriminatory laws but through discriminatory behaviour which, in its regularity and consistency, could be called ‘structural’. 

If it can be shown that British society systematically treats individuals unfairly on the basis of their identity, whether by law or by convention, then we must conclude that Britain is indeed a structurally unjust society, and should advocate urgent reform.

Even if it could not be established that our society mistreats individuals in a structural or systematic way, Britain would undoubtedly be an unjust society if it tolerated recurring patterns of inequality and made no efforts at reform. In a society built on just principles we would never say that, so long as all citizens are treated equally by the law and given equal opportunities, we needn’t care about enormous disparities in quality of life between communities. Even if such inequality is not caused by injustice, indifference to such inequality and the suffering it entails would itself be a form of injustice. It cannot credibly be argued that Britain has made no efforts towards remedying inequality between groups. But we should keep in mind that, unless those efforts are sustained, then the charge of structural injustice will be hard to deny. 

Structural injustice advocates have taken a different route, positing structural injustice as an underlying social force that drives inequality. Even though I do not find such arguments convincing, they are nevertheless understandable. 

What if structural inequality in fact is caused by individuals being systemically mistreated on the basis of their identity, but we simply can’t prove it? It could be difficult, even impossible, to establish the facts about billions of decisions and social interactions, particularly in the absence of explicitly discriminatory laws and practices. Given that persistent inequality is an urgent problem, it is understandable that in response some people grasp at a hypothetical explanation, rather than wait indefinitely for an explanation that might never materialise.

In this instance, however, relying on a bad explanation is, however understandable, is likely to be more harmful than having no explanation at all.

We should take time to reflect on the problems of what is labelled structural injustice and, in my opinion, we should reject it as a concept. That rejection would not be an achievement in itself, but merely the necessary prelude to a more open-minded and patient investigation into why equality persists in our society.

A constitutional commission

The Constitution, Democracy and Rights Commission should consider the establishment of a permanent constitutional commission. The role of the permanent commission would be to issue non-judicial advice to assist courts in deciding cases that concern the UK’s political constitution, and to advise ministers in proposing constitutional legislation to Parliament. 

• The purpose of establishing a constitutional commission would be to: 
• protect the political character of the British constitution; 
• create a body that can state authoritatively the principled basis of that political character; 
• encourage through dialogue greater judicial cognisance of the constitution’s political domain, and of the limits of the legal domain; 
• establish a clear mechanism by which ministers, in response to the commission’s advice, will propose constitutional legislation to reverse or codify judicial decisions; 
• review and improve other constitutional legislation proposed by ministers; and 
• educate the public on the workings of the UK’s political constitution.

Why a constitutional commission is necessary

The UK’s exit from the European Union is a reassertion of political, democratic control over our country’s supreme legal order. However the prolonged public debate that preceded Brexit revealed a troubling indifference to Britain’s political constitution, among the educated and even among some legislators. Exit from the EU’s highly legalistic order will not by itself automatically restore political constitutionalism. The UK must take steps to relearn the institutional and cultural balance between law and politics that characterises a political constitution. Such balance can, necessarily, only be restored through institutional dialogue and cultural change, not by the legal power of a single body. 

The prorogation case of 2019 demonstrated that the Supreme Court lacks the institutional competence, and perhaps the inclination, to safeguard the constitutional balance between law and politics. Parliament, which must on occasion legislate quickly in response to the pressures of the day, cannot, unaided by authoritative guidance, be expected to prioritise at all times the conventions of an ancient constitution. 

This paper proposes the constitutional commission as a means of finding that balance again. It would advise, and mediate between, our constitutional decision-makers in both the courts and in Parliament, while preserving the legal authority of the courts, and enhancing the constitutional legitimacy of both.

In cases touching upon the political constitution, courts would be compelled to refer relevant constitutional matters to the commission, and take account of its subsequent advice. The commission in turn would have discretion to advise ministers on any legislative changes necessitated by a court decision. Ministers would also be required to seek commission advice before laying constitutional legislation before Parliament. In either case, ministers would either have to follow the commission’s advice, or state before Parliament their reasons for not doing so. Further details of the commission’s proposed workings are given below.

The benefits of a constitutional commission

The commission’s work would improve the quality and legitimacy of constitutional jurisprudence. Judicial attempts to encroach on the proper domain of political constitutionalism would have to be justified, or abandoned, in response to Commission advice delineating the parameters of that political domain. Judges would need to defend the merits of judgments which, while lawful, might nevertheless be unconstitutional. The quality of such judgments, and the courts’ constitutional oversight generally, would be enhanced by judges’ new obligation to take account of the polycentric factors of the British constitution that extend beyond law alone.

A judiciary less ready to encroach upon the newly asserted domain of politics would be less likely to stray into public controversy, and more likely to preserve its crucial popular legitimacy. Legal changes that might otherwise be criticised as judicial ‘power grabs’ could be inoculated from such criticism if carried out with respect for impartial and authoritative advice on the limits of judicial power.

The legitimacy of Parliament would also be enhanced by the establishment of the commission. Constitutional legislation will frequently be controversial. Legislation proposed in good faith to reverse an over-reaching court decision is liable to be denounced as a populist affront to the rule of law. Further, the constitutional merit of legislation can sometimes be overshadowed by perceptions of political opportunism. Obtaining the prior approval of the commission would remove or diminish the grounds of such criticisms. It would also, moreover, improve the quality of any eventual act passed by Parliament.

The commission’s work would also clarify and shape the ongoing development of the constitution. Dialogue between judges and the commission could helpfully identify the point where a legal principle becomes, within the wider framework of the political constitution, a legal fiction or mere formality. The commission could also clarify existing, and identify new, constitutional conventions, especially those which may escape judicial notice.

Finally, the commission would have considerable educational benefit. The Brexit debate, for instance, would have been enormously improved by authoritative and impartial advice on the political-constitutional limitations of parliamentary sovereignty, and the democratic significance of referendums. 

The functioning of the constitutional commission

Judicial reference mechanism

The High Court and senior courts (and their Scottish and Northern Irish equivalents) would have an obligation to refer relevant constitutional matters to the commission for advice. It is proposed in preliminary terms that a relevant constitutional matter:

• is in issue in proceedings;
• concerns the extent of the power of one or more of the arms of the state, but does not concern:
• the interpretation of statutory language or any common law decision conferring any such power; and
• the rights of any individual; and
• is a matter of general public interest and importance.

In addition, a court would have discretion to refer any constitutional matter which in its judgment required the commission’s advice. 

A refusal to make a reference could, on the usual grounds, give rise to grounds for appeal if the court had wrongly interpreted the statutory provisions determining when a reference is to be made.

The commission would be obliged to provide advice upon matters properly referred to it. The court would then be obliged to take that advice into account in making its decision. The commission’s advice would, like expert evidence, be evidence of fact, not law. 

The independence of the courts in making judgment would not be fettered in any way. A court could, having taken into account the commission’s advice, decide to disregard it. However, as the commission would have power to advise the government to bring legislation in light of court decisions on constitutional matters, it is suggested that courts would prefer to enter into a dialogue with the Commission if the alternative might be legislation overruling their decisions.

Legislative advice

The commission would have discretion to issue legislative advice in response to a final court decision on any constitutional matter, whether or not any court had made a reference to the commission during proceedings. A minister would then have to lay a bill enacting the commission’s proposals, or make a statement to Parliament giving reasons why the government chose not to. 

To aid good-faith dialogue between courts and the commission, in instances where the commission had already advised a court, it could not subsequently resile from that advice in any legislative advice it provided to the government, unless specific circumstances applied.

The commission would be obliged to issue legislative advice requested by a minister for the purpose of proposing any legislation on a constitutional matter. The minister would then have to lay commission advice before Parliament before the second reading of any bill concerning a relevant constitutional matter, and at second reading make a statement before Parliament setting out the government’s response to the commission advice, giving reasons for any decision not to follow its advice. 

The government would therefore not be obliged to follow the commission’s advice. It would, however, have to attempt to justify any decision not to do so and face the political consequences.

The Commission would also be obliged to issue legislative advice requested by any sponsor of constitutional legislation other than a minister, and would have discretion to issue advice on all bills relating to constitutional matters of its own accord. Advice in either case would have to be made publicly available online.

Conclusion

This brief proposal has necessarily left much unsaid – the composition of the commission, the appointment process, its remit and accountability, and its cost versus the benefit. It has however summarised the benefits – the commission would future-proof the British constitution against potentially rash changes by both courts and Parliament. It would, if effective, reinforce the incrementalism that has historically protected our constitution, by forcing its decision-makers to pause for reflection. Crucially, this benefit could be achieved without disruptive change to constitutional fundamentals – Parliament would remain supreme, and the judiciary independent.

Big tech – not the messiah

The DCMS Select Committee has delivered its report on fake news and disinformation.

I haven't read it yet, but it's interesting how the narcissism of the big tech messiahs influences even its critics. 

No doubt Sergey Brin wants us to think of Google as an exceptional and revolutionary moment in communications. In some ways it is. But the internet is also just one additional way to access information and communicate with people. There's no good reason our approach to it should be completely different to our approach to previous comms and information systems.

So why do big tech's critics so often indulge the self-serving fiction that digital communications deserve special and different treatment?

Three examples.

1. The bizarre (admittedly playful) piece on PM today about whether 'flat earth' evangelists on the web should be policed by fact-checkers hunting out online untruths. When I worked at a Waterstones, I was amazed by the amount of 'mind body and spirit' pap that got sold. But hardly anyone would propose, on national radio or elsewhere, that booksellers or librarians have a duty to refrain from stocking titles that might expose the public to (what they believe to be) untruths. Why is the web different?
   
   
2. The EU law 'right to be forgotten' online is currently before the ECJ. The process of removing search engine links to stories, but not the stories themselves, was likened by one legal commentator to leaving the contents of a book untouched, but removing someone's name from the index. Which only made it seem all the more anomalous – hardly anyone would agree to such court-ordered tampering with books, unless for the usual legal reasons (libel, official secrets etc.). Why is the web different?
   
   
3. The GDPR, together with the electronic privacy regulations, impose stricter privacy limitations on sending out marketing emails than they do on sending marketing letters to our homes. It's easy to see why regulators think of electronic comms as a more pressing mischief – but how many people think of their email inbox as a more private, protected space than their own home?

The most egregious example, to add a fourth, is Germany's Network Enforcement Act. It purports to restrict the big online platforms by making them responsible for what users post, and in the process makes them vastly more powerful – a huge number of decisions about lawful freedom of expression are now made by, guess who, the big online platforms.

It would be preferable if the regulators did what regulators are supposed to do when faced with innovative technology – curb its excesses, and domesticate it. Instead they panic and emphasise the disruptiveness of innovators who more often than not aspire to be disruptive. That's not the check and balance they are supposed to be applying.

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.

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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.

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.