Denial of reality (the need for a border somewhere given the current government’s choice of Brexit).
(I’d add that that understates the refusal to accept reality because, in truth, a hard land border of ~300 very wiggly miles running through the heart of communities many of whom regard it as illegitimate and most of whom will resent it isn’t actually a realistic option.)
Dishonesty to voters.
Bad faith.
(None of this is to deny that there aren’t a range of improvements that could be made: I suggested one here on State aid. eurelationslaw.com/blog/the-uks-p….
But the current government’s strategy buries such good points in a morass of lack of realism and bad faith.
(The piece is also a distillation of arguments that are likely to weigh heavily with many Conservative peers: which is why the current government is apparently keen to find a way of doing what it wants without primary legislation.)
• • •
Missing some Tweet in this thread? You can try to
force a refresh
This is a very timely and important contribution to the debate on what, exactly, Article 16 allows the U.K. (or, indeed, the EU) to do. Some key points.
This para makes the point that A16 does not on its face permit derogation from express legal obligations. It makes the point that there are different types of derogation: a complete derogation, or eg a derogation from an obligation matched with compensation for not performing it.
Art 16 is not a renegotiation clause. It is about *temporary* solutions, to last for as little time as possible.
Section 8C of the EU Withdrawal Act 2018 gives Ministers huge powers to legislate “for the purposes of dealing with matters arising out of, or related to, the Protocol (including matters arising by virtue of section 7A and the Protocol)”.
These are Henry VIII powers: they allow Ministers to rewrite any part of the statute book. Including the Withdrawal Act itself. See (2).
Absolutely worth a watch by @BrigidLaffan. Pretty thorough refutation of the Frost account of how we got to the Protocol in his introduction to the Policy Exchange paper (blaming Whitehall and the Benn-Burt Act).
Some of us have been making the point @Bill_Esterson draws attention to for some time. See the HoL Internal Market Select Committee in April 2020 and my comments on it uksala.org/house-of-lords…
The Committee commented that “It is troubling that no one we heard from thought that the UK Government had a clear understanding of what state aid provisions it had signed up to in the Protocol”.
This was my evidence (and this is not controversial on the law).
Frost asks the question why the May government - in the 2017 joint report - accepted that alignment with some EU rules would be needed to avoid checks and infrastructure on the Irish border.
There is an obvious answer to that question: that (the famous Trilemma) that the only ways of avoiding checks/infrastructure at the Irish border were (1)to align with EU customs/goods rules in NI, with checks/infrastructure over the Irish Sea or (2) UK alignment with those rules.
1. The key phrase in Castex’ letter wasn’t accurately translated by @alexwickham and nuance was lost. Nuance matters in diplomatic letters (see eg how the Franco Prussian war broke out).
2. The French government (which knows rather a lot about diplomacy and careful drafting) must have known that the phrase (even accurately translated) would wind up the current government and its outriders (and that an inaccurate translation was quite likely).