Brexit and the waning days of the United Kingdom

[The Brain]

Whatever steps they planned for dealing with this issue when they activated Article 50? The UK is a sovereign nation, they can solve their domestic problems any way they see fit.

But the UK isn't sovereign over Northern Ireland. European law continues to apply, the single market still applies, there are rules around how EU and/or UK legislation will apply in Northern Ireland.

Oh my God it's the Brexiter line that EU countries aren't sovereign!

[The Brain]

Now the UK has sunny uplands with frolicking unicorns that shit rainbows. If the UK didn't want a ginormous clusterfuck then why did it leave the EU?

"-You got what you were supposed to get, bluesman! Ain't nothing ever as good as we want it to be! But that ain't no reason to break a deal... "

[The Brain]

It's important to remember the difference between the single market and areas that make up the single market. EU members are important to the EU, and the single market is important to the EU. Non-EU areas that are part of the single market, however, are not important to the EU. The single market can survive just fine without Northern Ireland. But it cannot survive significant hull breaches. The EU risking the single market (an EU responsibility) for the sake of NI (not an EU responsibility) doesn't make sense.

[Sheilbh]

It won't be the last this year I imagine - but Croydon Council has issued a section 114 notice which is basically the local government equivalent of bankruptcy.

There will be blame to go around and auditors have criticised Croydon Council for basically making lots of property investments that have not turned out well - I'd note the reason councils are making property investments is to get an income stream that is separate from government. There are definitely some mis-management issues going on here:
https://www.theguardian.com/society/2020/oct/29/croydon-council-on-verge-of-bankruptcy-after-risky-investments

But I feel like it's very unlikely Croydon's going to be the last local authority to go bust and they won't all have made "risky investments". Instead they've been woefully under-funded for over a decade and now hit by covid which is increasing their costs, especially around social care, and decreasing their tax take

[Zanza]

Of course the UK is sovereign over Northern Ireland. It entered the Withdrawal Agreement as a sovereign country and thus committed itself to some obligations. But that does not mean it is no longer sovereign as it can withdraw from the WA. It's just that sovereign decisions are not without consequences and the UK does not like the probable consequences of not adhering to the NI protocol anymore.

The pretension that the UK was somehow not sovereign is just Brexiteer propaganda.

[Sheilbh]

Of course the UK is sovereign over Northern Ireland. It entered the Withdrawal Agreement as a sovereign country and thus committed itself to some obligations. But that does not mean it is no longer sovereign as it can withdraw from the WA. It's just that sovereign decisions are not without consequences and the UK does not like the probable consequences of not adhering to the NI protocol anymore.

The pretension that the UK was somehow not sovereign is just Brexiteer propaganda.

There's two parts to that though - I don't see how the UK is sovereign in Northern Ireland over European law that applies automatically by virtue of the Withdrawal Agreement. The UK government does not have control (or, having left the EU, a say) over European laws that will continue to apply in Northern Ireland or how they're implemented.

On a technical level I don't think the UK government could withdraw from the WA in relation to Northern Ireland, at the very least I think they'd need the consent of the Northern Ireland Executive (so: Sinn Fein). I think they could withdraw from the WA except for the Northern Ireland Protocol. I mean it's certainly not clear and I think it could be challenged in the courts because the WA has been implemented into domestic British law (it's not just an agreement it's in several domestic laws) including the legislation implementing the GFA which the courts consider constitutional - which is more difficult to repeal. I've said before but Northern Ireland's status is inherently conditional - the first part of that law sets that out:

(1) It is hereby declared that Northern Ireland in its entirety remains part of the United Kingdom and shall not cease to be so without the consent of a majority of the people of Northern Ireland voting in a poll held for the purposes of this section in accordance with Schedule 1.

(2) But if the wish expressed by a majority in such a poll is that Northern Ireland should cease to be part of the United Kingdom and form part of a united Ireland, the Secretary of State shall lay before Parliament such proposals to give effect to that wish as may be agreed between Her Majesty's Government in the United Kingdom and the Government of Ireland.

And a chunk of the domestic implementation of the WA is that the government has to act in accordance with the GFA. I could be wrong and it would be subject to challenge but I think on this the Northern Ireland Executive, or possible the people of Northern Ireland are sovereign. I suppose part of it is a question of what is sovereign because in theory the UK government could resile from the GFA and get rid of the principle of consent, but at that point I think it would be an unlawful occupation of Northern Ireland.

[Zanza]

As far as I understand the British constitutional order, the sovereign UK parliament has the power to pass a law that invalidates all of the WA and NI protocol and ends devolution in Northern Ireland. There is nothing the EU or the Northern Ireland executive could do about that.

That EU law applies to a certain extent in Northern Ireland is because of an act of parliament. It is not from some kind of EU sovereign power over Northern Ireland.

[Zanza]

The idea that Northern Ireland is sovereign when the UK government suspended home rule for eight of the last twenty years seems a bit strange to me.

[Sheilbh]

As far as I understand the British constitutional order, the sovereign UK parliament has the power to pass a law that invalidates all of the WA and NI protocol and ends devolution in Northern Ireland. There is nothing the EU or the Northern Ireland executive could do about that.

Possibly - the UK government can (and does) suspend the Northern Ireland Executive when power-sharing collapses.

But that's how the Northern Ireland Act (which implements the GFA) works. The courts have (thankfully) never had to look at this, but they observed that the Northern Ireland Act and the GFA (between Ireland and the UK, and endorsed by referendum) collectively form "in effect a constitution" and should be read together - and, crucially, should be interpreted in accordance with the GFA not necessarily the principles or laws that apply to Westminster.

It is not clear to me that the UK government acting unilaterally could disapply laws that are "in effect a constitution" for Northern Ireland without the consent of the people of Northern Ireland in some way. Parts of the protocol have been added to that - basically the stuff around citizens' rights. Other bits apply in support of the GFA.

Northern Ireland is really distinctive - it is a place of competing and overlapping sovereignties (the role and responsibilities of the government of Ireland, the import of EU law in support of the GFA, its conditional status as a part of the UK). What I think definitely applies in a GB/EU division, doesn't necessarily work in the context of Northern Ireland because it has a complex legal order.

That EU law applies to a certain extent in Northern Ireland is because of an act of parliament. It is not from some kind of EU sovereign power over Northern Ireland.

But the bits around citizens rights are now part of the GFA (implementing legislation) and those rights go to the essence of the GFA is like a constitution.

For what it's worth - though it's far less complex - I'm not convinced Westminster could unilaterally abolish the Scottish Parliament or the Welsh Assembly. In theory it could, but I know a lot of constitutional writers basically think that power is just in theory now because Scotland and Wales have had a "constitutional" moment creating those assemblies.

[Sheilbh]

The idea that Northern Ireland is sovereign when the UK government suspended home rule for eight of the last twenty years seems a bit strange to me.

Suspending is different from abolishing and is part of the operation of the GFA. It happens when cross-community power-sharing collapses. So normally when the major unionist or nationalist party withdraws from government - arguably a sign of the progress of the peace process is that the reasons have moved on from a paramilitary spy ring and paramilitaries refusing to disarm to modern-day suspensions which are about corruption and endless rows about language

[Zanza]

Whatever the sovereignty split between the central UK government and Northern Ireland is, the EU certainly has no sovereign power in Northern Ireland. 

The only reason why some single market rules apply there is because the British government applied its sovereign power to issue a law to that effect. It can rescind that unilaterally as demonstrated by the UK Internal Market Bill.

Which would greatly annoy the EU, but in the end not change the fact that there is no EU sovereign power in Northern Ireland.

[Sheilbh]

Okay - but that theoretical point aside (I suppose my own view is who makes the law is the heart of sovereignty so on certain areas of exclusive competence the EU is the law-making sovereign with the Commission having enforcement powers through European courts). What could the British government do about this issue? Except for subsidising supermarkets (subject to EU state aid rules) - because I still can't think of anything.

Meanwhile in Downing Street - chaos - one thing I find striking is a former Sunak aide getting appointed to this new public-facing comms role. Johnson must be very confident in his position to be making that kind of decision

No 10 power struggle breaks out amid lockdown leak probe
Sebastian Payne and George Parker in London 2 hours ago

Downing Street descended into bitter recriminations on Wednesday following Boris Johnson's controversial plan to reconfigure his Number 10 operation with a new chief of staff.

Lee Cain, a long-serving ally of the UK prime minister and Number 10 communications director, has been in conversations about a new position for several weeks, according to individuals with knowledge of the conversations.

Tensions have dramatically risen in Number 10 following the appointment of Allegra Stratton, a former journalist and adviser to chancellor Rishi Sunak, to become Mr Johnson's spokesperson at new daily televised "White House-style" briefings.

Ms Stratton insisted she would take on the position only if she was answerable directly to the prime minister, not Mr Cain, a number of individuals familiar with the situation said. Mr Cain feared, according to allies, that he was being sidelined following what many Tory MPs have regarded as Downing Street's "shambolic" media performance during the Covid crisis.

Her appointment was made over the heads of Mr Cain and Dominic Cummings, the prime minister's chief adviser, who have resented her access and style.

Mr Cain, a former tabloid journalist who was a senior figure in the Vote Leave campaign during the 2016 Brexit referendum, has adopted an abrasive approach to the media. However, Ms Stratton has told colleagues she wants to adopt a less confrontational style. Number 10 insiders said his relations with Ms Stratton are "dire". Ms Stratton declined to comment.

One well-placed Whitehall official said Number 10 had become a "nest of vipers", adding "it's all falling apart in there, it's far worse than the outside world realises. Plus doing it in the middle of pandemic is totally disgraceful".

Individuals close to the prime minister confirmed Mr Cain had conversations with Mr Johnson about the chief of staff role, while other Number 10 insiders insisted that no formal agreement was made. "Boris has absolutely not signed this off," said one.

Mr Cain's potential appointment as chief of staff came after Downing Street was asked by journalists about claims relating to a leak of Mr Johnson's decision to place England into another coronavirus lockdown earlier this month.

One Whitehall official said the prime minister was "apoplectically and apocalyptically cross" at the leak, which appeared before he had made a final decision on the measures.

The inquiry, being overseen by deputy cabinet secretary Helen MacNamara, has narrowed its focus from ministers to special advisers, including those in Downing Street, officials said.

Some ministers believe the news of Mr Cain's possible promotion, which was reported by The Times on Wednesday, was part of an attempt to force Mr Johnson's into signing off on the appointment.

The suggestion of Mr Cain's elevation prompted a "full-scale rebellion" in the words of one senior Conservative, with ministers, MPs and officials expressing their concerns to Mr Johnson that he was a wrong fit for the position.

Senior figures in the government said Carrie Symonds, Mr Johnson's fiancée and a former senior Conservative adviser, has privately argued against the appointment. "She can't see how installing him would improve things," one aide said.

"Cain is now in severe jeopardy, there's also serious questions on Boris's mind about Dom [Cummings] too," a senior Tory official said.

One senior Whitehall figure suggested Mr Cain tendered his resignation last week following uncertainty about his future. Mr Cain, seen by some in Tory circles as an unlikely appointment to the prestigious chief of staff position given previous holders of the office, declined to comment.

Some Conservative MPs, who feel that Mr Cain and Mr Cummings treat the parliamentary party with contempt, complained to chief whip Mark Spencer on Wednesday. Mr Spencer's allies refused to comment.

The mooted appointment of Mr Cain as Mr Johnson's chief of staff has also alarmed some Conservative women, who note that it would leave Mr Johnson surrounded by an all-male support team, including Mr Cummings and Simon Case, the cabinet secretary.

"Does the PM think that it is appropriate?" said one Conservative official "All the people with access to him would be men. That's hardly governing in the spirit of Biden-Harris."

But friends of Mr Cain said his appointment had the "widespread approval" of special advisers across Whitehall" and argued he was already doing part of the job. "Lee is already doing lots of what the chief of staff is there for. He cares a lot about Boris and wants to improve things," one ally said.

Another added: "Lee has spoken several times about what he's going to do after Christmas, once Brexit is delivered and the worst of Covid has passed. Either he moves to a new role or he leaves."

This is also not the sort of story you expect in the first 18months of a government

Edit: And Lee Cain has resigned

To be replaced by someone who's previously worked for Osborne and May. Have to wonder how Dom's feeling about this now, because that's a key ally gone.

Edit: And apparently Cummings is on the phone to Johnson and it's 50/50 if he resigns.

[The Brain]

Will Cummings select the new PM?

[Tamas]

Edit: And apparently Cummings is on the phone to Johnson and it's 50/50 if he resigns.

Will be interesting to see if Johnson remains on Cummings' side or decides to resign.

[Richard Hakluyt]

The shenanigans in the White House and number 10 remind me, time for a re-read of I, Claudius