Saturday, 9 December 2017

The Art of Driving (on the right)

Imagine that the UK decided to drive on the right hand side of the road.  It might take the view that it will save some money by not having to buy specially designed vehicles with smaller production runs. This obviously is never going to happen because driving on the left hand side of the road is a traditionally British habit and what does Johnny Foreigner know about driving cars and Empire 2.0 will see us gleefully exporting our peculiar habits to the savages that inhabit the rest of the world. Despite all that, let's imagine that it did happen. If it helps get in the right (or left) brain frame we can limit this exercise to an independent Scotland or to Wales or any other country you like.  If you want to imagine Germany driving on the left that will work just as well.  The key point is to start thinking about the problems involved.

What sort of challenges are involved in realigning the direction of traffic?  I'm going to start writing some of these down.  You can play along at home with your own list.  I don't have a prize for the best or most comprehensive list or anything like that but I'd be fascinated to read them in the comments at the end. Right, what are those challenges?  Well, all the metal street signs will need to be reversed because traffic will be looking at the reverse of the sign rather than the front that actually contains the message intended for the driver.  Likewise, all the lettering painted on the road will need to be scraped off and replaced on the other side of the road.  Bus companies will need to move all the timetables across the road to the complementary bus stop.  In some instances, that will involve a completely new timetable due to the complexity of one-way streets and the way that they meet up with their two-way siblings.   Those timetables will need to be advertised well before the day they take effect by distributing paper handouts along the route and updating the company website with fresh downloads and information about the change.  It's going to be dangerous having all those cars designed for left hand driving but now driving on the right.  There will need to be an approved mechanism to have cars altered for the new road layout and a cut-off date for the conversion.  Some vintage cars might be exempt from this so there will need to be another approved mechanism for car categorisation and a registry of cars and owners with an opt-out.  Driving tests and all the associated literature will need to be changed so that learner drivers learn about left hand turns across oncoming traffic.   Driving instructors and test inspectors will probably need to go on a conversion course to make sure they understand what they are doing and certificates will need to be issued to the successful participants.  Insurance companies will need to plan for all of this because there is likely to be an increase in the number of bumps and dings and consequent claims. They might even urge drivers to take a conversion course with the lure of higher insurance rates for those who refuse to sign up. Oh dear, what a mess.

Can it get any worse?  Well, I'd guess the to-do list will keep growing day by day -  I don't even drive a car so my list will only scratch the surface.  The size of the list, however, is only part of the problem. The real problem is that everything has to happen at exactly the same time.  There's no point in moving 20 million driver seats from right to left if drivers will still have to drive on the left hand side because there's been a snag with the street signage. There's no point in rolling out the change street by street, either, because it creates a significant safety hazard at the intersection of left and right.  The piecemeal approach would just create a growing problem as the rollout continues with complete logjam forming at the intersection. The problem has to get much, much worse before it gets better to the degree that people might start wondering if the change is worth it.  No, this has to be completed in a single step.  A good time might be between 3am and 4am on Christmas morning when upstanding citizens are either asleep or fallen down drunk.  Would that even work?  Even if everything could be changed in a single hour it would require the complete shutdown of the road network.  How would ambulances and fire engines and police cars operate?  By helicopter?  Hmm, I don't think so.

I'm sure everyone has understood the analogy.   Regulatory alignment is a binary state:  the UK either aligns itself with the EU or it aligns itself with the US. The UK cannot unpick its alignment with the EU piece by piece, month by month, legislative act by legislative act without threatening its entire relationship with the EU and suffering the chaos that would follow.  A single divergence from the EU brings all the Brexit edition Jenga blocks crashing to the floor.  Brexiters, of course, refute this suggestion but they are entirely wrong.  We've been talking about this on this blog ad infinitum for the last 15 months but the events of the last week have finally brought it to public attention, even if the public have conveniently ignored the logic puzzle staring them in the face and mainstream media largely got it wrong.

Why is Brexit a binary puzzle?  It's a binary puzzle because it operates under tight constraints that aren't well understood by the headbangers that campaign for it.  For the rest of this post I want to look at just one conundrum that forces the UK to make a hard choice between left and right hand drive.  The particular legislative nugget I'm going to look at hangs on a US legislative act called the Trade  Promotion Authority.  A quick summary is that Congress holds the power to set import tariffs but is historically bad at negotiating trade agreements.  To solve this problem Congress agrees to temporarily pass the power of negotiation to the executive but retains a binary vote on the final deal.  It does this with conditions attached in the form of negotiating objectives for the executive.   This agreement is often referred to as the Trade Promotion Authority (TPA) or Fast Track Authority.

The current TPA was pushed through Congress during the Obama administration.  It was, to say the least, controversial and took multiple iterations to reach a majority vote.  Those iterations introduced key negotiating objectives across all sorts of trade areas but the one that interests us is the one that lays out objectives on sanitary and phytosanitary standards (SPS) for agricultural products. The US believes that hormone-injected beef and chemically-washed chicken are perfectly healthy and doesn't understand why other countries continue to ban their import.  Moreover, the US believes that banning their import is a protectionist barrier to trade.  It believes this so strongly that it opened a dispute at the WTO against the EU.  The EU, of course, defended its position with scientific evidence but ultimately lost the case. WTO disputes are typically resolved through consensus so a solution was found whereby the EU increased its tariff-free import quota of EU-standard beef.  That's not a terribly interesting story in itself but it might lead us to clues behind the collapse of TTIP, the abandoned US/EU trade deal.  A key negotiating objective for the US was to get the EU to agree that hormone-injected beef would be  part of the deal.  Obama could not have gone back to Congress with the news that he had ignored its wishes  because if he had done so the deal would have been rejected.  The EU would never have agreed to US SPS so there was no deal.   It follows that the UK is in exactly the same situation.

The Trade Promotion Authority requires any trade deal with the US to include the adoption of US SPS.  Given that the EU lost the scientific case for a hormone-injected beef ban there is no realistic way to opt out of this requirement in a way that will ensure the agreement of Congress. If Liam Fox wants to sign a UK/US FTA he will need to include chemically washed chicken and hormone-injected beef and refrigerated eggs in the package.   Except he can't do that. Michael Gove, in his role as Environment Secretary, has already said that he would not accept chemically washed chicken in the UK.  Now, I don't trust Michael Gove and he can be easily be replaced so this might not be that much of a barrier to Liam Fox realising his nightmare vision.  The real barrier is that Theresa May has just promised to uphold all EU law required to keep the NI/RoI border free of all border infrastructure.  She promised to do this for the whole of the UK in order to keep Arlene Foster on side.  That's right, Theresa May promised that the whole of the UK would be aligned with EU legislation on everything that might affect the UK's land border with the EU. She cannot do that and at the same time adopt US SPS.  It is logically impossible. By promising alignment with the the EU, the UK government has made a public statement that it rejects the conditions of a UK/US trade deal.
Does Liam Fox understand that his dream just ended?  He might but it's hard to say, to be honest.  I don't want to credit him with too much intelligence but he understood as early as October that a US/UK trade deal would require something that didn't focus on agriculture.  At the time the shrieking headlines about mutant chickens would have been ringing in his ears and that was likely the reason behind his pronouncement that he would prefer a UK/UK deal to focus on services.  In any other month it could have been threats to Geographic Indicators, which protect products like Scotch whisky, Scotch beef, Scotch lamb, Shetland lamb, Stornoway black pudding, Arbroath smokies, Scottish wild salmon and Shetland wool.  The problem Fox faces is that FTAs typically don't include services because regulating humans is several orders of magnitude harder than regulating bananas.  In actual fact, it requires the kind of legislative harmonisation we've seen in the EU and the EEA to make it happen.  Just as we saw with agriculture, the UK will be faced with an either/or choice in every area of legislation. In banking, for example, it can either align itself with the Dodd-Frank act or the Capital Requirements Directive and Regulation issued by the EU.  It cannot do both so which will it choose?  The momentum of the current direction of travel tells us the answer: the UK will become a regulatory annexe of the EU.  The UK has to choose EU over US because it doesn't know how to change direction without suffering profound legislative chaos.  As a consequence, the UK will choose the EU.  Even if the constraints of the problem weren't forcing that choice, the EU would make it happen anyway because they seem to be the only side with a track record of writing down what they want and then working out how to get it.

 If the UK becomes a regulatory annexe of the EU what will that look like? Well, the UK will remain a signatory to the ECHR and will continue to uphold human rights as it does now.  The UK will lose all democratic representation and all influence at the EU, yet will continue to follow its legislative programme. The only trade deals the UK will be able to sign will be with countries already in agreement with the EU. It will simply mop up any and all FTAs, whether they are a good deal for the UK or  not.  But, hey, there will be fewer foreigner workers in the UK so it will all be worth it, right?

Over and out,

PS Apologies for not posting for ages but I've just had too much to do at work in the past month or so. 

PPS It's almost impossible to keep up with Brexit these days.  It moves so fast yet when I look at it nothing has materially changed.   Hard times for amateur bloggers with a penchant for source documents.

PPPS Even before we get to the logical conundrum of Brexit, the current TPA expires in July, 2018, unless Trump requests and Congress approves a 3 year extension prior to the termination date.  It has come to my attention that Trump is more interested in cancelling FTAs than signing new ones but even if he changed his mind he isn't all that good at convincing Congress to agree with his proposals. Liam Fox, please take note.

PPPPS Even if the UK decided to drive on the right would that be the correct decision?  It might argue that it would reduce costs but it would really need to argue that the reduced costs at least compensate for the cost of the required change.  That's what I expected to see in the Brexit Impact Assessments (sarcasm alert)  It's astonishing (sarcasm alert) to learn that the current UK government employs no metrics at all in its decision making.  Instead, they use gut feeling.  The policy choice to leave the Customs Union was quite literally made on gut feeling and they've admitted to that in public, using the words "gut feeling".  What a mess.  All this gut feeling has given me indigestion.

PPPPPS If rUK is aligned towards the EU it makes iScotland in EU a more than credible prospect.  iScotland in EEA was always a credible proposition but EU membership might have been in conflict with maintaining trade links with rUK.  Theresa May just indicated she will remove the conflict.

Monday, 13 November 2017

All Change

Brexiters often say that leaving the EU gives the UK an opportunity to make fundamental changes to almost every facet of British life. They're roughly correct, except for the simple fact that change will be a necessity rather than an opportunity. The UK will have to start doing things entirely on its own; it will have to do things that it has never, ever done for itself; it will be forced along policy directions by reduced circumstance rather than by choice or by design. Brexit will force changes to the political system, it will affect the economy, it will profoundly affect the national culture.

One of the reasons that Brexit maintains the support it does is that the changes it will trigger are hard to visualise because our everyday lives are distant from the functions of high government. It might be of more value, therefore, to focus on the way that the coming changes will affect our very real lives. What can we say about that? Well, we can say with some certainty that Brexit will change the fundamental conditions that lead to business success and failure; it will alter the decisions that people make about their education and career and future; it will change the value that society places on job skills and experience; it will change the way that people think about the rest of the world and about their own country and neighbourhoods; it will change our relationship with all levels of government. The problem remains that it is difficult to be specific about any of this because each change affects every other change and every other change influences every other. We have no idea where this experiment will end up. Can we be more specific about anything at all? Yes, we can. The UK will need to change consitutionally in very specific ways that will undermine the Scottish devolution settlement.

I would argue that EU membership creates the very conditions that made the Scottish devolution settlement possible. It does this in two very distinct ways:
  • it forces legislative similarity across the UK for Holyrood competences devolved to Brussels.
  • it allows legislative difference to prosper for Westminster competences devolved to Brussels.
To be perfectly honest, the "summary" above is a bit of a mouthful. It took me an age to distill it down into two simple sentences but I'm not all sure it was worth the effort.  In actual fact, I barely understand what I just wrote so, if only for my own benefit, we need some examples. Agriculture is a good place to start.  It turns out that agriculture is a power devolved to the Scottish government but one that has been largely devolved one more time to a shadowy cabal of unelected Stalinists in Brussels. As a consequence, farmers in Scotland and England and Wales and Northern Ireland are all bound by the same legislation on the treatment of waste water, they receive subsidies based on the same formulae, they must abide by the same list of banned and permitted pesticides. Farms across the UK are all controlled by exactly the same EU law and the same penalties for breaking EU law. That will all end when the UK exits the EU. Immediately after the UK has "taken back control", Holyrood will once more be the highest arbiter of legislation governing the operation of Scottish farms. Holyrood will be free to implement its own legislation on the treatment of waste water, on farm subsidies, and on the list of banned pesticides. All sorts of decisions governing agriculture will be taken by elected representatives in Holyrood. We will likely see Scotland and rUK diverge in all sorts of ways.  This becomes a problem if Liam Fox tries to hammer out a trade deal with the US that includes agriculture. The US is going to see a complex patchwork of legislation and subsidy and banned pesticides, while Liam Fox will have no control over his own negotiation because he will be trying to trade on political powers that he clearly doesn't have.  This will be the foundation of constitutional conflict.

What about those legislative differences that EU membership makes possible? Let's start our journey to the answer with yet another question: why has the EU never signed a trade deal that includes access to health markets for 3rd nations? The short answer is that the EU could never attempt that because health is not an EU competence. If the EU attempted to trade health provision with a 3rd country it would quickly find itself in hot water because it would be trading powers it doesn't have. In difference to Liam Fox, the EU understand the limits and consequences of its own powers. If health is a power retained by national governments and everyone agrees on that then there is no potential for conflict if health provision diverges across the EU. We know that health provision is divergent across the EU: the UK has its own model funded by taxation, while Germany has an insurance system. Moreover, the available treatments and the way they are funded differs from country to country. If that difference can exist across the EU without conflict then it can also exist across the UK.  That will all change when the UK exits the EU and the power to sign its own trade deals will be returned to Westminster. It is unthinkable that the UK would not attempt to use access to the NHS internal market as a bargaining chip. It won't be able to do that if NHS Scotland remains devolved to Holyrood. Poor old Liam Fox will be attempting to trade powers he won't have.

The UK will need to start behaving as a single, unified nation. It will have to start doing things for itself, on its own. It's obvious that divergence across the UK will hinder that project. The devolved settlement, which enables the Scottish government to make divergent decisions, will need to be amended, diminished, curtailed.  It just isn't possible to negotiate FTAs with 2 separate parliaments and 2 assemblies.

Taking back control doesn't just mean taking it back from the EU.  Taking back control actually means ceding control to an all-powerful executive in Westminster. There is no other way that Brexit could ever hope to work.  There is only one way to avoid this now.

Over and out,


PS Readers of this blog know much more about Scottish devolution than I do. I'd be grateful if anyone could leave some examples of conflict in the comments.

Thursday, 26 October 2017

Being Boring

If, as Ian Dunt pointed out, they get you with the boring stuff then we need to arm ourselves so they can't.  I'd like to play a part in that.  This blog is about finding things out (often quite boring things) and sharing that knowledge.

Recently, I started to wonder how it came about that the Catalonian referendum was declared illegal.  How on earth did that happen?  How come nobody did anything about it?  Isn't it in conflict with other laws? Well, there is an answer and in that answer I hope there is an appeal for calm and reason. 

The root of the conflict in Catalonia is that Article 2 of the Spanish constitution asserts the indivisibility of Spain.
Section 2
The Constitution is based on the indissoluble unity of the Spanish Nation, the common and indivisible homeland of all Spaniards; it recognises and guarantees the right to self government of the nationalities and regions of which it is composed and the solidarity among them all.

Articles of the constitution, however, are not the same as law.  Instead, law is guided by the constitution.  With that in mind, the constitutional court of Spain ruled on the legality of the Catalonian referendum and concluded that it was in breach of 5 articles of the constitution and 2 entries in the Catalonian statute. As a consequence, the referendum was illegal in Spanish law. I urge everyone to read through the constitution and see if anyone can spot the Articles that might be in question. I'm no expert but I found 3 candidates in about 10 minutes. It isn't all that surprising to learn that the court ruled unanimously.

A few weeks ago I started to wonder if this ruling was in breach of Spain's international obligations on human rights and democracy.  There are obviously experts out there who already know the answer but I wanted to find out for myself.  I first looked to see if the ruling was in conflict with EU law. The EU had nothing whatsoever to say about this because constitutional affairs and policing are not EU competences. No EU law has been broken.  I then looked at UN Declarations on self determination to see if the ruling of the Spanish constitutional court was in conflict with UN law. It was something of a surprise to learn that the Spanish constitution was not obviously in breach of any UN declaration on self determination. Learning that the integrity of territorial borders is protected in UN law was even more of a surprise, although I can think of plenty of sound reasons as to why that may be the case. I can only conclude that the referendum was illegal and that it was legitimate, although certainly not prudent, to take steps to prevent its implementation. 

It is a valid question to ask if the court ruling and the constitution live up to shared standards of modern democracy.   Is it commonplace to have an article of the constitution that expresses the indivisibility of a territory? Do other democratic nations have similar constitutional arrangements? The only way to find that out is to look at the constitutions of countries that we might consider to have high democratic standards. It turns out the constitutions of  Italy (Article 5), France (Article 1) and Austria (Articles 2 and 3) all have near identical provisions.  The pattern is clear: there is nothing unusual in Spain's constitutional affairs; it is certainly not an anomaly.  I'm not aware of any constitution that expressly provides for secession.

Given that the principle of indivisibility is commensurate with modern democracy I started to read about why this is the case.  Are there sound reasons for this? It turns out there really are sound reasons and I think some of them will appeal to many readers of this blog. One reason is to ensure wealth distribution by stopping a rich region seceding and leaving poorer regions behind. I can't argue with that. Another reason is to stop a region being taken over by undemocratic forces and essentially stealing land and assets from the people. After watching a documentary about the actions of Farc and militia groups in Columbia, I can't argue with that, either. Yet another reason is invasion by a foreign power. Again, it's hard to argue against that one. Isn't it comforting to know that if a region was invaded then the nation state would intervene to protect its own citizens? I can only conclude that there exist high-minded and appealing reasons to protect territorial territory in a constitution. I might even argue that protecting territory (and its people) is a basic duty of state.

I'm near the end now and I think I understand how the Catalonian referendum was declared illegal.  It was declared illegal because it violated the constitution.  There is nothing particularly anomalous or obviously undemocratic in the Articles of the constitution that were considered in that ruling.  I've looked for international law that might counter the ruling.  That obviously wasn't an exhaustive search but I couldn't find anything and everything I did find pointed in the opposite direction. The problem, then, is that Spanish law does not provide for the unique set of circumstances that have occurred in Catalonia. Yelling at Jean-Clauder Juncker won't fix that. Calling Rajoy a fascist won't fix it either.  I hope it is now self-evident that talking about losing faith in the EU won't do anything to repair the problem and only hinders future choices for no gain. Most of all, adopting entrenched views that push everyone onto one side or the other is definitely not going to fix it.   It strikes me that this requires diplomacy and calm heads to sort it out.

I've deliberately narrowed my focus in this post.  I've not thought about the legal powers used to disrupt the referendum or the disproportionate use of force exercised by some police officers.  I've also not thought about the powers that Rajoy is about to invoke in order to, as he might put it,  restore the rule of law to Catalonia.  There are plenty of posts elsewhere about all of that so I've restricted my posts to (boring) topics that I wanted to know more about.  It's not clear what is going to happen but it sounds genuinely troubling, to say the least.  After all, just because the constitution makes provision for a power it doesn't necessarily mean that power is exercised.  Moreover, just because an action is supported by an Article of the constitution that doesn't make it automatically legal because it may violate other Articles or international obligations to human rights.

I might come back to this in the future but then again I might not.  My experiences so far of trying to share my findings beyond this blog have been met with, ahem, quite an extreme response.  I'm primarily concerned that people who don't have to live with any of the consequences are ratcheting up the tension.  I'm concerned I might be indirectly contributing to the tension, even if there is no evidence of that on the blog itself.  As a consequence, I might leave this topic well alone from now on or just limit myself to generalities that might equally apply to Scotland.

Over and out,


PS I'd like to quickly revisit all those calls for Juncker or the EU to intervene in the situation in Catalonia.  Such calls are asking for Juncker to force Rajoy to abandon his commitment to the Spanish constitution and the rule of law.  That might be construed as the imposition of extra-judicial law by a foreign power.  Just a thought...

PPS In many ways the EU has saved itself the trouble of ruling on rights to self determination and, more generally, on human rights by outsourcing all of that to existing organisations such as the UN and the Council of Europe.  Why reinvent the wheel?  Why create another layer of potential conflict between shared competences?  There is no reason to do any of that.

PPPS People are very quick to judge Juncker but not interested at all in António Guterres, General Secretary of the UN.  After all, it is the UN that could provide the right to self determination but doesn't.  This is not a call to arms to start calling António Guterres every name under the sun.

Update:  Hugh asked on twitter about Kosovo's independence.  I've not read this yet but I'm hoping it has more good news in it than I've been posting for the last week or so.  It's the International Court of Justice's ruling on Kosovo, if anyone is interested. If anyone can beat me to a conclusion please post it in the comments.

Update 2: Boy, that is a lengthy court ruling.  It makes an advisory ruling that Kosovo's declaration of independence does not violate general international law.  How the court got there is quite complicated.  It first determines the question it is able to answer.  It points out that it cannot make a ruling on domestic law and will limit itself  to international law. It also points out that it is not being asked to rule on the right to self determination and ventures no opinion on that because it is not what it is being asked to answer.  It then asks whether the declaration of independence violates any law ie whether it is illegal.  To do that it first considers general principles and then moves on to specific issues surrounding Kosovo related to its unique circumstances.  On the first point, the court finds no international law has been violated.  The second point iterates over UN resolutions affecting Kosovo (eg the UN had/has a peace-keeping mission in Kosovo) to see if they affect the case.  For example, whether the authors of the declaration were part of the UN interim administration is discussed. The court rules they weren't part of the interim administration, allowing the court to conclude that the authors of the declaration acted as representatives of the people of Kosovo. Anyway, the ruling is that UDI doesn't violate any general international law.  We need to remember, though, that domestic law was not considered by the court.


Saturday, 21 October 2017

The Right To Self Determination

How many times have we all read that Catalonia and Scotland have a right to self determination?  I would reckon thousands of times, probably hundreds of times just in the last week or so.  There are countless Yes blogs and tweeters reiterating this right by the second but does this right really exist?  What is the source of the right?  To whom does the right apply?  Let's find out together.

This particular post is going to address the rights of  any people to seek self determination. Before we crack on with the show please remember not to shoot the messenger.  There are uncomfortable truths in this post (I found some of them uncomfortable) and long-held assumptions will be challenged (mine certainly were) but I am neither a fascist nor a Nazi enabler. The same is just as true of Jean-Claude Juncker and Guy Verhofstadt.  In fact, can everyone please stop calling everyone else Nazis because the sitaution in Catalonia regarding free speech and journalistic freedoms is actually rather dire and that comes just as much from the independence movement as any other.  If we can all just calm down we might stop fanning the flames.  Now that disclaimer is out of the way let's crack on with the legal right of peoples to seek self determination.

The Right To Self Determination

Does Catalonia have a right to self determination?  If it does have this right and that right is being denied then maybe the EU should really be bolder here.  The problem is that that Yes tweeters and bloggers talk about the right to self determination but I'm not absolutely sure what they mean.  Is this a moral right?  Moral rights are a bit vague for me because we all have different moral standards and it is almost impossible to adjudicate on that.  Every story has two sides, after all.  I really need to see that right written down in some kind of document that we can all recognise, perhaps something from the United Nations in the form of a declaration.

If I'm going to understand the legal consequences of any document I'm first going to have to understand the terminology used in it.  Words like "people" and "self determination" itself pop up all the time so we need to try to understand what they mean before we can try to to decode any legal document on the topic. What is a "people"?  More to the point, what is "alien subjugation" when it's at home?  Many tweeters talk about "the people of Catalonia" but do they mean it in a legal sense with respect to a legal definition of self determination provided by international law? We're going to have to find out by looking at the source documents.

The UN has a number of historical declarations that refer specifically to self determination.  Modern tools like google search make it embarrassingly easy to find these declarations.  It didn't take me long to stumble across Article 55 of the Charter of the United Nations and the Declaration on Colonial Independence and the Declaration on Friendly Relations.  I'm basically stupid but I'm also tenacious so I spent a few hours working my way through them taking notes, going over sentences again and again until they made sense.  It turns out that the key sections of text are actually quite short but after reading them I was left more confused than I was at the start.  The problem is that they are self contradictory, introduce terms that are never defined, and sometimes vague.  I started to wonder if my basic stupidity had triumphed over my tenacity until I stumbled across an academic history of self determination as a legal term. This has proved a valuable resource in that it turned out I wasn't quite as stupid as I thought: these declarations are confusing and self contradictory.  Moreover, understanding the historical context of the declarations really helped to clarify the legal intentions and their possible interpretations.  I've borrowed my understanding of the timeline from that history of self determination so I obviously urge everyone to read that at their leisure.  You're not getting off that easily: I obviously urge everyone to read the UN declarations as well.

 League of Nations

We  now think of it as a legal right but self determination actually started out as a principle.  Woodrow Wilson was one of the first prominent figures to make pronouncements about self determination when in 1918 he declared,
"self-determination is not a mere phrase. It is an imperative principle of action which statesmen will henceforth ignore at their peril."  
Self determination was in the air back in 1918 but it wasn't yet a legal concept.  With the reshaping of borders in Europe being determined by blunt political needs rather than the needs of "peoples", laws were surely needed to help out here.  It's just that there weren't any.  The League of Nations didn't have any laws on self determination, even though it made positive noises at the time.  Self determination was no more than a principle and certainly not a right defended by international law.  The case of the Åland Islands gives a flavour of the times and the ambiguity that surrounded self determination. 

In 1945, the League of Nations was replaced with the United Nations and the Charter of the United Nations was signed to mark its inauguration. Article 55 contains the only significant mention of self determination but, to be  honest, it isn't very helpful in determining whether Catalonia can claim a legal right to govern itself.  I urge everyone to read that for themselves.  It is short but also short on the kind of detail that might be of any use to anyone whatsoever.  When it comes to moving from an ambiguous principle to a definitive right, the UN wasn't any more effective than the League of Nations.


The idea that self determination could be a legal right really took root in the 60s and 70s with the end of the European empires.   The United Nations took a leading role here with its "Declaration on Colonial Independence" in 1960.  I've read through this a few times and it is a confusing document.  It turns out that it is confusing and contradictory and my handy historical guide confirmed it.  The declaration makes significant reference to an unconditional end to colonialism and is entirely about ending colonialism but then paragraph 2 declares the right  to "all peoples". 
2. All peoples have the right to self-determination; by virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.
 Hmm.  It does not define "peoples" but it does give caveats to those rights: "freely determine their political status and freely pursue their economic, social and cultural development".  Does that sound like an attempt at a definition of colonial rule? It might be but I honestly don't know. Catalonia isn't under colonial rule and I really cannot argue that economic, social, and cultural development is denied to Catalonians. What about political status?  This strikes me as another vague term.  Spain is a democratic nation with local, regional and national elections.  Does that count as determining political status?  I don't know.  It would only be clear if it specifically mentioned the right to form an independent state or a right to national identity or something like that.  Perhaps it can be argued that the intention of the declaration is only to be used within the context of declonisation.  On the other hand, perhaps the authors really intended a wider application of the declaration. I don't know about that. I'm not a lawyer so please make your own judgement. We can say for sure, though, that it has only been applied within the context of decolonisation. I think we can all agree that Catalonia is not a colony of Spain.

What else is confusing about the Declaration on Colonial Independence?  In paragraph 5 it suddenly introduces the concept of Non-Self-Governing Territories but up until that point it had been entirely about "peoples". 
5. Immediate steps shall be taken, in Trust and Non-Self-Governing Territories or all other territories which have not yet attained independence, to transfer all powers to the peoples of those territories, without any conditions or reservations, in accordance with their freely expressed will and desire, without any distinction as to race, creed or colour, in order to enable them to enjoy complete independence and freedom.

 Are "peoples" and "Non-Self-Governing Territories" the same or do they mean different things?  Could a territory contain multiple peoples?  Could a people span multiple territories or incorporate partial territories?  Do people take legal primacy over territories?  We'll actually get to some of that later but this analysis has a narrow focus so I'm only going to worry about it if it pertains to Catalonia.  A Non-Self-Governing Territory is one that is subject to the process of decolonisation.  Catalonia isn't on the UN's list so we can just ignore this ambiguity within the context of this specific declaration.
There is yet more confusion in the Declaration on Colonial Independence.  This is the first time that we encounter the term "alien subjugation".  What does it mean?  I honestly don't know but a google search did point me to a compilation of erotic fiction of dubious literary merit.  It may be well be a fantastic read with "perfect tales dripping love, romance, and seduction" but that doesn't really help.

It's time to take a quick breather.  We're nowhere near a modern interpretation of self determination but I hope we're all getting a sense that this is complicated stuff.  Even attempts at sorting out the specific case of decolonisation ended up being filled with ambiguities, undefined terms, and confusions of legal primacy.

Friendly Relations 


In 1970, the United Nations adopted the Declaration on Friendly Relations.  Reading about this online leads me to believe this is the legal gold standard for a definition of self determination.  Is it also a confusing and contradictory document?  Yes, it is but far less so than the preceding Declaration on Colonial Independence.  We're going to dive in and we'll be underwater for some time so take a deep breath and steel yourself.

The declaration has a specific section on self determination and it begins with a near reiteration of a statement we've already seen in the Declaration on Colonial Independence
 "...all peoples have the right freely to determine, without external interference, their political status and to pursue their economic, social and cultural development...".  
This isn't exactly unambiguous because it doesn't define "peoples" or "political status". Let's read on to see if it all becomes clearer.  The declaration then goes on to state the aims of self determinism.  The aims are to create friendly relations between States and to bring a speedy end to colonialism according to the wishes of the peoples involved.
  1. To promote friendly relations and co-operation among States; and
  2. To bring a speedy end to colonialism, having due regard to the freely expressed will of the peoples concerned;
This sounds like a very narrow focus is intended here so this is perhaps a clarification of the  Declaration on Colonial Independence.  That idea is undermined by a later paragraph, which seems to suggest a much wider focus.
The establishment of a sovereign and independent State, the free association or integration with an independent State or the emergence into any other political status freely determined by a people constitute modes of implementing the right of self-determination by that people.
This certainly suggests that self determination includes the establishment of an independent state and it might even be argued that Catalonia falls under the category of a people with that right. This looks really promising but we're not at the end yet.  This document follows a cohesive whole, like all legal documents, so we need to read every last line.
Nothing in the foregoing paragraphs shall be construed as authorizing or encouraging any action which would dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and independent States conducting themselves in compliance with the principle of equal rights and self-determination of peoples as described above and thus possessed of a government representing the whole people belonging to the territory without distinction as to race, creed or colour.
This paragraphs basically says that the principle of territorial integrity or political unity takes primacy over the right to self determination except in the case where a people is attempting to escape the clutches of a government that discriminates on race, creed or colour.  It's clear to me that Catalonia does not have a legal right to self determination under the Declaration on Friendly Relations because the territorial integrity of Spain trumps everything.   The only conditions under which Spain's territorial integrity does not take precedence over Catalonian rights to self determination would be if it discriminated by race, colour or creed. Spain categorically does not do any of that in Catalan.



It's a rare event indeed for this blog to draw a firm conclusion but it really seems as though Catalan does not have an automatic legal right under UN law to claim self determination.  The same is true of Scotland.  If Catalan's leaders thought it did have that right would they not have tested it at the International Court Of Justice?  I obviously can't be sure but I think it is telling that it hasn't happened.

I feel like I've uncovered an uncomfortable truth.  I had always assumed that the right to self determination was enshrined in international law and that there was a legal conflict between the Spanish constitution and international law.  I was completely wrong; I can't see any conflict here at all.  Something similar happened when I tried to find an EU law that Spain had broken by denying the Catalonians the right to hold a referendum.  I expected to find an appropriate law but I couldn't find any such law because no such law exists.  Only then did it become clear why the EU was floundering around looking generally like useless idiots.  The situation with the UN, however, goes much further than that: a law does exist and it expressly does not provide for the legal right to self determination, except in specific circumstances that to not apply in this instance.

If the Spanish government hasn't broken international law and it hasn't broken EU law then it is useful to ask if it has broken Spanish law.  For example, is it doing anything that runs counter to its constitution? I'm trying to work that out right now and it will likely be the subject of my next post.

PS  Do whatever you want this post but in light of this report please stay calm so as not to fan the flames. Do please read the report from Reporters Without Borders. It is a genuinely sobering read.

Wednesday, 18 October 2017


It's been a disappointing few weeks, to be honest. My melancholy can be sourced to the countless Yes blogs and twitter accounts that are busily working themselves into a right old fury about the EU. To make matter worse, it seems that reason is in short supply whenever the EU is involved. Debunking one myth only leads to a hundred others resurfacing in a latent anti-EU rage. Most of this anger stems from a fundamental misunderstanding of the function and limits of the EU. To add to the mix, however, we have rehashed arguments from the Lexit crowd working in tandem with an almost Orwellian "EU bad" instinct.

I've seen outlandish arguments that Scotland should definitely join EFTA because the EU is "neo liberal". Switzerland may be as much old money as it is nouveau riche but I'm here to report that it is most definitely not a hotbed of radical socialism. After all, a founding member of an organisation called the European Free Trade Association is every bit as likely to be "neo liberal" (whatever that might actually mean) as the European Union. Despite all that, EFTA has an inexplicably high approval rating in the independence movement.

Then there's the old chestnut of Article 7 of the Lisbon Treaty.  This one has been debunked by hundreds of twitter accounts and blogs but it just refuses to die.  I'm starting to dream about a post-nuclear landscape with thousands of Scots shuffling around in the freezing cold,  spluttering half-remembered grumbles about the Lisbon Treaty from their melted faces.
Someone please invent digital Domestos to kill wrong-headed ideas stone dead.
Can we do better?  Well, apparently not.  This next one comes from the top, from someone whose job it is to know all this stuff, from someone who knows full well the power of words and their ability to misinform. Why is this important? Well, it's because peaceful political protest is being thwarted by the Spanish government and Angus B MacNeil used that to make a political point rather than to direct genuine concern and anger towards the politicians and institutions that could actually do something about it.
I notice they're not in a jail in the UN or NATO or WTO or OECD or G12.
I'm afraid we're not finished with Angus B MacNeil.  He followed up this with this zinger for the Guinness Book of Stupid.

Make up your own caption please, I'm lost for words.
 Who can forget the good times over at commonspace?  The EU, apparently, risks turning support against itself simply by merely adhering to all of its rules and laws as laid down by its own membership. Just in case we're worried about journalistic credentials, it was written by a self-styled EU guru with a "... good understanding of Europe’s operation, positives, and shortcoming [sic]".  Sadly,  the author didn't have a good understanding of very much at all and proceeded to hack away at the "EU bad" boilerplate with bizarre conflations and confusions of European institutions and the limits of their power.  Is this the best we can expect from digital journalism in the 21st century?   Commonspace has the resources of more journalists than any blog; it can pick and choose its own news agenda; it doesn't have to rush to publication; it has the freedom to publish links and data; it can readily publish corrections.  This is the best it can do?

What has frustrated me most? The lack of nuance; the almost willful disregard for the trade-offs involved; the inability to realise that decisions have consequences both good and bad; a rejection of source documents; ideological knee-jerk winning over the reality of messy compromise that reflects the experience of our very own lives. I'm so completely fed up with this so I'm going to halt my countdown of shame.

This is a tiny blog with a very specific audience who are interested in source documents, complicated arguments, discussions about the relative merits of trade-offs.  If you're reading this blog then you're interested in nuance and debate.  There are, of course, reasons not to join the EU and I'm happy to listen to them because they really exist and I've only thought of a minuscule fraction of them. I've  even posted some of the ones that occurred to me on this very blog.  I'm happy to say that many commenters here have posted their own reasons not to join the EU.  If only the rest of the independence movement was even a tiny bit like that.  They probably are in all sorts of respects but any mention of the EU or Europe seems to trigger a brain melt-down.  "EU bad" is not a valid argument.
I honestly don't know what to say.  The myths spread by the anti-EUers of the left and the right have taken root.  It feels like they've won and no amount of argument can shift that view.  I'm frustrated, I'm disappointed, I'm worried that a groundswell of uninformed opinion is creating an environment where the wrong decisions will be made for all the wrong reasons.

Over and out,


PS I did promise that this blog would follow the emotional rollercoaster of Brexit.  Well, this is the latest update.

PPS I deliberately heightened the drama to make this more fun to read. Everyone likes a bit of drama, right?  I am a little bit fed up, though.


This is wider than I'd ever imagined so I thought I'd start a gallery of the kind of misinformation that is being spread by Yessers.  I can't even be bothered redacting the tweet accounts. I'm not even sure why I bothered in the first place because they are all in the public domain.

Here's the first.  Note the 56 retweets and 66 likes.
66 likes. 58 retweets.  Oh dear.
And another. 
27 retweets. 23 likes. Still early days.

I do know why and I did respond but I suspect his head has already exploded. 

Stay tuned for more.  I need to get back to work now.

It's the weekend now and this one is just too good to miss.  If the EU genuinely intervened to undermine the written constitution of a democratic nation without recourse to democratic accountability, what would you call that?   Answers on a postcard to Mr Malky.

 Well, that escalated fast.
When you run out of arguments just go for an ad hominem attack because that always helps.

Initially, I was just "pious", "peurile" and an "uncritical buffer".  It''s a short step to being a repulsive Nazi enabler.

Saturday, 7 October 2017

What Can The EU Actually Do?

My last post on the limits of EU authority turned out to be slightly controversial. This time I'm going to dial up the confrontation to a huge 2.5/10 by continuing on the same theme as last time.  That theme, of course, is the thorny issue of the EU's muted response to the appalling scenes of police violence aimed at undermining a democratic process in Catalonia. Before we proceed I just need to make it clear that if I was from Catalonia and didn't have a strong view on independence prior to last Sunday I most definitely would have one now. The actions of the Spanish government were so appalling that it is all but impossible to support the constitutional status quo. The question is what the EU can do about it today and what it can do in the longer term.

I'm going to start by repeating what I said last time: nobody in the EU has the power to speak out about Spain's constitutional or policing arrangements on behalf of the EU or its membership. There are plenty of opportunities for MEPs to speak out in an individual capacity; party groupings in the European Parliament can formulate policy on the issue;  parliamentarians across the EU's membership can say exactly what they want. National governments can also speak out but already the toing and froing of the many coalition arrangements starts to limit their ability to do so. You know what? We've seen all of this happen. It's disappointing that it didn't happen more but we all get to participate in the election of our political representatives. People of Europe, you know what to do. The key question is whether there exists an office holder of the EU who can speak out on behalf of the entire EU on the narrow issue of Spanish policing? Is there an institution of the EU that can formulate an immediate political view on the constitutional affairs of a member nation? Is there an individual or institution of the EU that can take immediate punitive measures against the Spanish government without consultation or formal investigation? The answers to all of these questions is that no such individual or institution exists. The EU is a union of collective action through consensus rather than a government itself. The only power it has is the power given to it by its membership.

The EU's areas of competence are really quite wide but they also have their limits. In each of these areas of competence the EU acts by creating laws that are either directly applicable (Regulations) or by issuing instructions to national governments to add laws to their legal framework that uphold agreed specifications (Directives). Extending the range of competences can be achieved by amending treaties or creating new ones. I think everyone has heard of the Lisbon treaties. This was a prolonged round of negotiations that attempted to extend the range of the EU's competences. It was controversial, to say the very least. Attempts to create a European Constitution were abandoned after France and the Netherlands rejected it at referendum. Attempts to introduce a raft of crime and justice initiatives were rejected by the Irish and only accepted after guarantees were made about the scope of their legal interpretation. The UK, of course, opted out of most of the crime and justice initiatives but then opted back in to some of it after Theresa May decided that the European Arrest Warrant had more positives than negatives. The key point is that the European Commission doesn't just plan a power grab of extended competences before forcing it on its membership. The EU's competences are limited to those powers given to it by agreement of its membership.   Here's the crunch: the EU does not have a mandate over policing or constitutional affairs because nobody gave it that power. It's hard to point at Spain and say that it broke EU Regulation 9711 (Police forces of the EU)  paragraph 7 section c because nothing like that exists. The Spanish government and the Spanish police might have violated Spanish law but that is purely for Spanish courts to decide in the fullness of time. I just want to point out that Spain has not yet suspended its legal or judicial systems.

Many commentators have pointed out the possibility of human rights violations in Spain.  Specifically, the adoption of the "Charter Of Fundamental Rights Of The European Union" has been mentioned.  The Charter certainly enshrines the European Convention on Human Rights (ECHR) into EU law but in a very limited way that does not extend to Spanish policing.  What does the Charter actually do?  Well, it actually has several consequences.  The first is that it forces EU institutions and bodies to uphold the ECHR.  Secondly, it ensures that directly applicable EU law upholds the ECHR. Thirdly, it ensures that the implementation of EU law by member states does not in any way violate the ECHR.  Finally, it allows citizens to take their own government to  an EU court if the ECHR has been breached but only within the limits I just described. I'm just an amateur blogger but my conclusion is that the Charter is limited to the competences of the EU.  It does not allow a citizen of a member state to take their government to an EU court (I would guess that would be the Court of Justice of the European Union) unless it involves a question related to EU law.  Spanish policing is not an EU competence, it does not involve the implementation of EU law and it does not involve directly applicable law.  Spanish policing is a matter for Spanish courts rather than EU courts.  This isn't what we want to hear but I'm afraid to tell you this is what was agreed in the Lisbon treaties.  The suppression of the referendum in Catalonia falls beyond the competence of EU courts and the adoption of the Charter does not change that.

 All EU nations must also be members of the Council of Europe.  That means upholding the European Convention on Human Rights and recognising judgements made by the European Court of Human Rights ((ECtHR).  If a member nation was found to be in contravention of the ECHR and refused to accept the judgement of the ECtHR then they could be suspended or expelled from the Council of Europe.  Membership of the Council of Europe is a basic EU obligation so EU membership would also be suspended.   There are three things to think about here. The first is whether Spain has acted in a way that violates the ECHR. The second is whether Spain rejects the judgements of the ECtHR and effectively suspends its commitment to a definition of human rights shared across the EU. The third is whether the EU will recognise that action as a breach of Spain's obligations and proceed to suspend or expel Spain from the EU. Many readers here have read other commentators make definitive statements that human rights have definitely been abused and that the EU must take immediate and punitive action against Spain as a consequence.  I hope I've given some flavour of the arguments against that already but I'm going to go into this in a bit more detail in the following paragraphs.

Has Spain contravened the ECHR? That isn't immediately clear. There are many commentators who are a) clear in their minds that human rights have been violated and b) believe that the EU should immediately accept that view as a binding legal judgement. My sympathies lie entirely with the Catalonians but I am not a human rights judge tasked with upholding a complicated matrix of rights and a mountain of case history. Like almost everything, human rights are complicated and in many cases judgements must strike a delicate balance. For example, I have the right to religious expression but do I also have the right to wear religious symbols at work? In this case, Spain has the legal right to protect its territorial borders and the right to use force to do so.  This isn't what we want to hear but I'm afraid that protecting territorial borders is a basic duty of state. The Catalonians, on the other hand, have the right to request self determination and the right to free expression. At first glance this might appear simple but after 10 minutes of thought I hope we can all accept it is something more complicated than we first imagined. We cannot expect the EU to accept that Spain has breached its treaty obligations because it is not the EU that has the final word on human rights. The final word on human rights violations falls to the European Court of Human Rights. Until we have a judgement we can't expect the EU to do anything.  This is not going to happen today, next week or next month.  We need to be patient.

What happens if Spain is found to be in violation of the ECHR and then proceeds to ignore the rulings of the ECtHR?  Failure to uphold the ECHR is far from commonplace but it does happen from time to time.  That alone is not enough to suspend Spain from the EU - if it was enough then there would be very few states left in the club.  Failure to uphold the judgements of the ECtHR, on the other hand, is a much more serious situation because it suggests that violating human rights is a deliberate strategy rather than a disagreement on legal interpretation.  How often does that happen?  The problem here is that failure to uphold judgements also happens from time to time.  Failure is a strong word and I should qualify it with an example.  The UK government lost a human rights case involving a blanket ban on prisoner voting rights.  They lost the case but then Westminster voted down an amendment to UK law that would have implemented the judgement.  The UK government is in a precarious situation where it is a member of the Council of Europe but failing to uphold the basic obligations of membership: repeated rulings against the government have not resulted in a relaxation of the blanket ban.  Despite that, the UK remains in the Council of Europe and the EU (ok, not for long but that's another story).  A stalemate seems to have settled over the case with the UK making vague noises about future changes to the law and the Council of Europe issuing warnings that the UK needs to take action but without imposing any penalties in the interim.  I picked on the UK here because I happened to be familiar with the case but I'm sure the UK isn't the only nation struggling to implement the ruling on prisoner voting rights.  I'm sure some digging around would have brought up some other cases, too.  The point I'm  trying to make is that there are plenty of ways that states can prevaricate on implementing ECtHR rulings without being suspended from the Council of Europe.

The EU requires member states to be signatories to the ECHR and members of the Council of Europe.  The UK has for some years been in dispute with the courts of the Council of Europe yet it remains a member and a signatory to the ECHR.  It is likely not the only state in this situation.  For as long as the UK remains a member of the Council of Europe it can also remain a member of the EU.  That would also be true of Spain in the most extreme case I considered here.  Of course, suspension of membership of the Council of Europe would result in Spain being also excluded from the EU.  Article 50 was actually constructed for exactly this  kind of case - it was as much a mechanism to expel an unwanted member as it was a mechanism for a state to voluntarily leave.

In the case of the Catalonian referendum Spain has not yet been found to be in breach of the ECHR.  It has not yet put itself in a situation where it deliberately ignores the judgements of the ECtHR.  It has not yet been suspended from the Council of Europe.  My last post gave more detail on this point but it is also not immediately clear if Article 2 of the Lisbon Treaty has been breached and even if it was agreement about that would take time because the EU proceeds by law and process rather than knee-jerk reaction (see Article 7 of the Lisbon Treaty).

Why is everyone screaming at the EU?  It's because the myths of Farage and the Daily Express have taken root deep in society, even with people who are the exact opposite of Farage and the Daily Express.  The EU is not a federal super-state; neither for good nor bad has it all-conquering powers; Jean Claude Juncker is not the most powerful man in Europe.  We should be thankful for all of that because if the EU really had the powers to intervene in Spain we'd have created a terrifying undemocratic monster that would control literally every aspect of our lives without any hope of accountability.  Like all institutions, the EU is imperfect.  It has to juggle the needs of citizen and state, business and consumer, national sovereignty and harmonised law.  Over the years it has struck a balance between all of these competing requirements.  It is what it is but many think it is something else entirely.  That misunderstanding has directed anger away from the politicians and heads of government who could make a real difference and towards an institution that acts under legal constraints limiting its ability to take any action at all.

Over and out,


PS Alyn Smith lays out the tensions in the EU that lie between fast decision-making, consensus politics and the need to avoid a federal super-state here.  The EU is an imperfect institution but we need to remember that institutions are always imperfect.

PPS James O'Brien provides some great background to the situation here.

Update:  I had a bit of a rant over at commonspace on an article that finally tested my patience.

Update:  I'm going to be away for the next few days so I might be a bit slow responding to any future comments. Sorry about that.

Monday, 2 October 2017

EU Misconceptions

This is normally a lighthearted blog about the mess being created by the UK government and the hapless fools at the core of UK politics. I'm afraid I'm in a more sombre mood today after Sunday's shocking scenes surrounding the Catalan referendum. I don't want to go in to that too much because this blog is mainly about Brexit and Scottish independence. I honestly don't know much about the situation in Catalonia or any of the details that led to the referendum. Having said that, it barely needs saying that the manner in which the Spanish authorities crushed a peaceful and democratic campaign was made all the more chilling by the obvious parallels with the Scottish independence movement.

Paul Mason erroneously blames Juncker and the centre-right EPP grouping.
 What's all this got to do with the EU?  Popular opinion seems to think that the EU is either directly to blame for the unfolding horror or that it should intervene with immediate condemnations and threats of expulsion. Paul Mason, for example, was quick to blame Juncker and the centre-right EPP grouping in the European Parliament. I'm not sure what any of that has to do with Spanish internal affairs but politics is a nasty affair and any stick that can be used to prop up Labour's flimsy EU story seems to be acceptable to Momentum supporters. More nuanced but equally incorrect views came from a much wider group of commentators who felt that their support for the UK's EU membership had been betrayed by the institutions and individuals that make up the EU. That feeling of genuine sadness that the EU had somehow sided with the Spanish government by remaining silent on the issue was so prevalent that I'd like to explore it in more detail. What could the EU actually have done? Who would have done it? Which institutions might be responsible for restoring order in Catalonia? I hope we'll have some answers to these questions at the end of the post.

Totally understandable but anger must be better directed.
Let's start by thinking about the powers of the EU. What power does it actually have? Well, it only has the powers given to it by member nations and by the European Parliament. If the EU wishes to make a statement about Spanish policing then it will only do so if the member states get together and agree on that. Even if that was to happen it certainly isn't going to happen quickly because the EU works by process and law rather than by knee-jerk political gestures.  In the event that member states  decide to collectively give the EU the power to make statements about Spanish policing it will be done only with witness statements, legal reports containing references to EU law, and consensual agreement. That all takes time and cannot happen today.  We really cannot expect the EU to coordinate the opinion of 28 nations in real-time.

Even with consensus that something should be done could the EU actually intervene in Spain's internal police procedures?  This doesn't typically happen but if it did we'd have seen it already with the UK at the receiving end of the complaint.  The tragic case of Ian Tomlinson springs to mind.  Ian Tomlinson was a newspaper seller who was unlawfully killed by a policeman during a student protest in 2009.  Not only was police management of the protest in question but the forensic evidence provided at the trial was troubling, to say the least.  If there was ever a case for the EU to intervene then this was it. They didn't intervene, however, because this is beyond the competence of the EU.  In fact, the EU is  constructed in a way that stops it interfering with the territorial integrity of member nations.  The "federal super-state" that Farage and The Daily Express endlessly complain about is a myth and no more than that.

Let's imagine for a second that the EU does have the power to make immediate and definitive statements on the internal affairs of member states. Who might actually make that statement? After all, such a statement would be made on behalf of the entire EU but it would need to be made without proper consultation of its members.  The simple truth is that nobody has that power.  Jean Claude Juncker, President of the EU Commission, certainly does not have that kind of power because his role is administrative rather than political. Guy Verhofstadt is able to speak for the European Parliament on matters relating to Brexit but only because he was democratically appointed to that position by MEPs.  He certainly does not have the authority to speak for the EP on any other issue. He can, of course, speak in a personal capacity. In fact, many MEPs have spoken out with personal condemnations of the events in Spain. Perhaps in time we'll see political groupings in the European Parliament speak out with formal statements but that will take time. For today, the most we can expect is personal statements from individual politicians. Have we seen that? Yes, we have.
Alyn Smith is a SNP MEP.
What can the EU actually do? Well, Article 7 of the Lisbon Treaty provides for the suspension of membership if the conditions of Article 2 have been breached.  It's not at all clear that Article 2 has been breached in the case of the Catalan referendum so suspension seems unlikely and certainly could never be immediately implemented. Again, let's imagine that Article 2 had been breached in some way or other. What could the EU actually do?  Article 7 is quite clear that action requires the consent of the European Council, whose membership is the heads of state of the member nations.  We can forget about the UK having any influence here because, in case you hadn't noticed, it is scheduled to leave the EU at 11pm on 31 March, 2019. Even if that hadn't been the case, what would the chances have been of Theresa May spending time on this and staking her limited political capital on it? I would guess quite close to zero because it only opens the UK to all sorts of counter charges. It is honestly not hard to think of dozens of cases where the UK has let human rights slip down its list of priorities.  That leaves the other 27 EU nations such as Germany and Denmark and, yes, Spain. Anger and attempts at forcing action should be directed at heads of state rather than the EU.

In the above, I imagined a scenario where Article 7 could be invoked due to a breach of Article 2.  The difficult here is that Article 2 has not been obviously breached.  Of course, Spain might carry on down this path to the point that the rule of law is suspended. Perhaps we'll see the court system dismantled so that investigations can no longer be carried out independently of political interference or perhaps a group of Francoists will seize power and reject the systems of democratic accountability.  EU membership would surely become untenable under those conditions but none of those things have actually happened. Despite the genuinely awful scenes, Spain is not yet a fascist state.

I'm not a lawyer or an expert in international affairs but it strikes me that this is a problem of human rights and therefore more suitable for the Council of Europe rather than any EU institution. All EU member states are members of the Council of Europe and are consequently expected to uphold the findings of the European Court of Human Rights. If a Spanish citizen feels that their human rights, as laid down in the European Convention of Human Rights, have been violated then it seems intuitive that their first port of call will be the Spanish court system, followed by ECtHR if they still feel that justice has not been served. We mustn't forget diplomacy, either. EU membership does not impede any member state from wielding the power of diplomacy, no matter what Paul Mason might think.  I'm quite sure that is going on because diplomacy literally never stops.  It's a great pity that this has been left to Boris Johnson because this is an area where, until recently, the UK had a deserved reputation.

The EU is a collection of national governments rather than a government itself; it acts methodically by process and law rather than gut reaction; it works by consensus rather than "strong" leadership; it is a sequence of institutions with specific competences rather than a unified structure of power. There is no single person at the helm. None of that might be what you want it to be but expecting it to be something that it isn't and then complaining about it isn't going to help the situation in Barcelona.  The truth is that understanding of the EU is so limited that it has all too easily become the default scapegoat of the left and the right.   The EU didn't do this, it was the Spanish governments.  We mustn't forget that simple fact.

Over and out,


PS The Council of Europe, the European Council, the Council of Ministers, the European Commission, the European Court of Human Rights, the Court of Justice of the EU.  I know it's a lot to take in but we have to get on top of this.  Ian Dunt is 100% right here:  they get you with the boring stuff.

Tuesday, 19 September 2017

Fox: He's Got Magic

How's Liam Fox  getting along?  Why, he must be close to signing off on a bumper crop of FTAs by now.  After all, that is what David Davis promised back in 2016.  The job of making that happen fell to the hapless Liam Fox when he was appointed Secretary of State for International Trade.  Davis specifically promised a negotiated trading area 10 times the value of the European Union that would involve Indonesia, South Korea, Australia, New Zealand, the US, Canada, Hong Kong, China and India. They promised all of that by March, 2019.  Like charismatic salesman at a street market they also promised a deep and special FTA with the EU that would replicate all of the current advantages of EU membership but without any of those pesky obligations.  Depending on which spokesperson was available at the time, our putative relationship with the EU was described as akin to Canada (with its CETA FTA) or similar to Norway (membership of EEA) or it would be like Switzerland (byzantine system of 120+ bi-lateral agreements) or it would be a bespoke deal that must never be specified lest its magical allure wears off. That is quite an impressive list, isn't it?  How is Liam Fox getting on?  How is he getting on?

Astonishingly, we're approaching the half-way point between the referendum result and the UK's imminent and guaranteed departure from the EU.  Assuming a linear trajectory, we should be roughly half-way through the list of trade negotiations by now, meaning that a trading area just 5 times the value of the European Union should be completed or nearly there.   Let's start counting on our fingers how we're doing.  The EU?  We haven't started any trade discussions with the EU.  India?  We haven't started any trade discussions with India. The US?  Despite some well publicised meetings aimed at generating news headlines we haven't started any trade discussions with the US.  South Korea?  We haven't started any trade discussions with South Korea.  Canada?  The Prime Minister is there right now and she is discussing issues related to trade but we are most definitely nowhere near negotiating a FTA with Canada. Japan? We haven't started any trade discussions with Japan.   Don't worry, I'm not going to torture you with more of this "we haven't started any trade discussions with country X" because I think we all knows where this is going to end up.  The UK has literally failed to start a single negotiation in all the time that has passed since the referendum result.  What went wrong?  Do shout out the answer if you feel like. Yes, Liam Fox is a good answer but it's not the whole story.

There are just so many issues here that they would be hard to fit into a single blog post.  I need to filter somehow or other so I thought I'd order them by their entertainment value. That's right, this post is now guaranteed to become more entertaining as it proceeds.  Before you all ask for your money back let's start off with the enormous pile of contractual obligations that will be declared void on EU departure day.  When the UK leaves the EU every single contract and treaty involving the EU and third countries will no longer apply to the UK. The Financial Times identified a truly incredible 759 treaties that will need to be ratified just for the UK to tread water.  These include fisheries agreements with Iceland, transport agreements with Santiago, nuclear agreements with Australia, regulatory cooperation agreements with New Zealand, customs agreements with Japan.  It is a truly astonishing list and I haven't even mentioned the trade deals yet.  The list contains a staggering 295 trade treaties, 202 regulatory cooperation treaties on everything from company takeovers to data sharing, and 65 transport agreements.  Before embarking on a free trade negotiation with the UK any one of these treaties can be used as a bargaining chip.  Even for third nations more than willing to talk trade with the UK it remains the case that all of this has to be sorted out first because trade cannot take place if aeroplanes can't take off and land.  On exit day, the UK will be faced with the kind of international relationships enjoyed by North Korea and South Sudan.

This brings us to the problem of government capacity.   The UK Civil Service is overburdened with a regulatory maelstrom.  It has to arrange the completion of 759 international treaties by 31 March, 2019;  identify any others that the FT might have missed; negotiate a complex exit deal from the EU; implement the entirety of EU law into UK law but without referencing any EU institutions or courts; ramp up UK mirrors of all EU technical agencies;  massively increase the UK border capacity; prepare UK business for customs of origins checks; prepare UK border control for customs of origin checks; implement a tariff payment and rebate system;  plan for the transcription of EU treaties into politically acceptable Free Trade Agreements; hire and train tens of thousands of staff.  To be honest, I'm just an amateur blogger so that probably only scratches the surface of the work that needs to be done. To make matters worse, instead of handing this work to established departments with existing procedures and expertise, Whitehall has been asked to play a prolonged game of musical chairs in the newly formed Department of International Trade and Department for Exiting the EU.  I think we can all agree it is a lot of work but is it an insurmountable goal? Luckily, we don't need to guess an answer because Liam Fox admitted that capacity was an issue and that he was "simply unable" to make it work.   Just in case you missed it let's repeat that one more time: Liam Fox admitted in public that the UK does not have capacity to complete the jobs required to smoothly exit the EU.

Can it get worse?  Yes, of course it can get worse.  Liam Fox is forbidden by EU law from signing trade deals before the UK exits the EU.  There is some legal debate about whether the UK can even negotiate trade deals while still a member of the EU but that is a moot point because a) it will seriously break down trust between the UK and the EU by turning the UK into a trade competitor and b) the UK has anyway used up all its capacity on negotiating its escape from the ghost of Jacques Delors.  When David Davis and Liam Fox made all those promises were they deluded or telling an outright lie?

Let's imagine Liam Fox invited his mate Adam Werrity round and all his mates and all their mates.  I'm not sure the universe could handle that concentration of raw talent but let's imagine that it could and that they all agreed to bat for UK trade at the weekend.  Let's imagine they chose Canada as their first port of call.  How might that go?  To work that out we need to think about the career goals of a typical Canadian trade negotiator.  My guess is they'll want to do this quickly so they can catch the ice hockey highlights on the gogglebox.  The last thing they want to do is to promise the earth to their boss only to find out that it will be a rocky ride getting there.  As a consequence, the first question they'll ask is if the UK is going to be a regulatory annexe of the EU. Does the UK intend to uphold the regulatory standards of the EU but through a different legal mechanism or does it intend to completely change to a new set of standards?  If the UK commits itself to EU regulatory equivalence then it might point to a favourable outcome using CETA as a template. This is great for Canada because everything they invest to make CETA work will also benefit the Canada/UK deal.  It also creates a Canada/UK/EU trading zone with all the attendant benefits of scale.  The problem is that neither Liam Fox nor Adam Werrity nor any of their mates nor David Davis knows the answer to this basic question.  The UK truly cannot decide a course for its future.  On the one hand, it cites a "deep and special" partnership with the EU and publishes position papers that foretell a future of EU equivalence.  On the other, meanwhile, the bumbling Foreign Secretary publishes a 4000 word hymn to Brexit that once again threatens to turn the UK into a low tax, low regulation economy.   Which is it to be?  The truth is that nobody knows and nobody will know until the UK finalises its relationship with the EU. Until that happens nobody will seriously discuss trade with Liam Fox because it would be a waste of time.

If you're a news fanatic you'll probably have noticed that Theresa May has been over in Canada talking to Justin Trudeau and that issues around trade have been discussed.   It's quite clear that Theresa May has convinced the Canadians that the UK will be a regulatory annexe of the EU because it seems that everyone is keen for something like CETA to continue with the UK after Brexit.  Despite Fox and Hammond and Johnson all making headlines with their incessant talk of an economy diverging from the regulatory standards of the  EU, May has unilaterally convinced a foreign head of state that is all mere chit chat and that the UK will be nothing more than a regulatory extension of the EU.  She must have spent her time outlining her vision for the UK's relationship with the EU as something akin to today's situation but with a few cosmetic changes here and there.  With that decided, the UK and Canada can use CETA as a template.  Except, of course, it hasn't been decided at all.  Theresa May might have decided in her own mind but I think we all recognise that the situation is fluid, at the very least. Would Jacob Rees-Mogg accept the UK automatically mirroring EU Regulations and Directives even if freed from the clutches of the ECJ?

We now see the only way forward for the UK.  If the UK is to sign any trade deals at all in the next 5 years or so it will have to become a regulatory annex of the EU.  Only by following that path can it relatively painlessly repair all the trade deals that it breaks by leaving the EU.  That brings us to the second most entertaining problem.  The EU is currently in trade talks with Japan and has voiced an interest in starting trade talks with Australia and New Zealand.  These countries also have capacity limits of their own and will prioritise their resources for the biggest fish.  Given that the EU has a population 8x that of the UK and includes Germany, already a larger market than the UK, it is obviously going to talk to the EU first.  It is going to choose the EU anyway because they have stable governance and are able to commit to long-term plans and initiatives.  Moreover, they know that they can just take the deal they strike with the EU and the UK will fall in line. Is this a good thing?  Well, no, because the UK will end up adopting trade positions that don't reflect the needs of its economy.  Trading conditions that might benefit Audi in Stuttgart probably don't necessarily apply to a payroll services company in Solihull.

Now we come to the most entertaining problem.  The problem is that the UK is supposed to be free to take control of its own trading affairs but we've just seen that the only political solution that has any chance of diverting the Brexit bus from the cliffs is to be, in the words of both Johnson and Gardiner, a vassal state.  Surely, though, the UK can go ahead and forge its own trade deals with its nimble legislative processes?  Well, this is where it gets really hard.  The truth is that, apart from the US, the EU pretty much has it covered with anyone interested in doing substantial trade deals and harmonising with EU standards to a meaningful degree.  Huge parts of the world actually run protected economies.  Brazil and India, for example, both fall into that category.  In comparison, the EU's WTO tariff rates average 4.8% and are much lower than the world average of 9% and insignificant compared to WTO bound rates that often run as high as 39%.  The trouble is that a trade deal only really has to liberalise trade relative to where it is right now and that might not mean very much in terms of real value.  A trade deal with a divergent and protected economy half-way round the world will have even less monetary significance and be even harder to sign.  Besides, if they know the UK will just fall in line why would they bother with the UK until they've sorted out a deal with the EU?

The simple truth is that the most stable outcome is guaranteed to be worse than the trading conditions enjoyed today by the UK.  I don't think anyone voted to be a regulatory annexe of the EU, to take on 2nd hand trade deals that we didn't influence and don't reflect the needs of the economy.  This is not an attractive option at all.  What are the alternatives?  What about the low tax, low regulation economy everyone keeps mentioning?  I've kept the best for last because the fantasy of Fox and Minford is to become a "beacon of free trade" by slashing as many tariff and non-tariff barriers as feasible and turning the UK into an economic free-for-all. Who would sign a free trade agreement with the UK when they already have complete and unfettered access to the UK's economy?  Nobody.

Over and out,


PS The US is a special case because it looks like TTIP has been abandoned so there won't be an existing FTA for the UK to adopt.  I've blogged about the specific issues of TPA and Congress in more detail but let's just say that we are dealing with a President who consistently wants more tariffs rather than fewer.   Trump is now on record as having said: "So, John, I want you to know, this is my view. I want tariffs. And I want someone to bring me some tariffs."

PPS There is still one issue that I haven't deal with.  If the UK manages to agree an extended period of negotiation beyond the 2 years laid out in Article 50 then it is most likely it will not be allowed  to sign trade deals for its duration. The Canada/EU deal, for example, will cease for the UK on 31 March, 2019 yet the UK will not be able to enforce any proposed agreement with any 3rd party for some years after that date.  The EU could concede on this point but what will that cost? Never forget who holds all the aces.