Delay is a Waste of Time

 

Although the government has consistently tried to rule out any extension to the date upon which the United Kingdom exits the European Union, a private members bill was introduced by Nick Boles MP to require the Prime Minister to seek such an extension if the Withdrawal Agreement and Political Declaration are not approved. A similar Bill seems likely to be shortly introduced by Yvette Cooper MP.

Delay and Revocation

It is paradoxical that the United Kingdom has the unilateral power to revoke the Brexit process altogether, but, if it seeks delay, it must obtain the agreement of the 27 other member states. It seems likely that such an extension would be agreed to if it were for the purpose of a second referendum or a general election. It seems unlikely that it would be granted for purposes of making preparations to facilitate a no deal Brexit, which would entail a ‘hard’ border in Ireland, which is one of the central goals of the EU27 to avoid. It is therefore almost certainly insufficient to obtain an extension to legally require the PM to ask for one. She would have to ask for a particular purpose.

 

Time Doesn’t Help

Delay will not change the arithmetic in the Commons. As we saw on 16 January, there is no majority in favour of a General Election. There is also an even smaller number currently in favour of a Referendum.  The deadlock would remain the same. We will have managed to delay taking a decision, but not added any further options.

 

Further, by delaying the exit date, the United Kingdom does not extend the transition period after that date. The UK only obtains the transition period if it agrees to the Withdrawal Agreement. The end of the transition period is not, as often stated, “two years”. It is not a rolling period. It comes to an end on 31 December 2020. This end date is fixed by EU budgeting requirements (ie they need to know the point at which the UK stops paying). This could be extended to 31 December 2021 or 31 December 2022, but the UK will have to pay into the EU’s budget throughput that time, and will be essentially a non-voting member of the EU (an uncomfortable position).

 

The transition period is crucial because it is during this time that the UK will negotiate the future relationship. The terms of the Withdrawal Agreement have taken nearly two years to settle, and are far more straightforward. An extension wastes time as it eats into the transition period. Without a clear objective in mind it should be opposed.

 

Change the Default to Something Else?

I have suggested changing the default in the absence of approval of the Withdrawal Agreement from no deal Brexit  to revocation of Article 50. This would not lead to Remain being the result. All options, even no deal Brexit, would still be possible alternatives for the legislature to approve.

 

May currently has two paths to attempt to persuade MPs to approve a Withdrawal Agreement. The first is to induce MPs to back her with the threat of something worse. Here the obvious worse thing is no deal Brexit. The procedural hurdles for parties other than the government to introduce and pass legislation to stop this are so dauntingly high that this tactic may still succeed. It does not, however, seem to me to be a democratically acceptable way to behave.

 

The other was the path I assumed that she would take.

 

The Labour Party has no substantive reason for opposing the Withdrawal Agreement (as opposed to the Political Declaration). Although Mr Corbyn’s amendment on Monday criticised the backstop as “ neither politically nor economically sustainable” Sir Keir Starmer interviewed on Sunday admitted that any backstop, which simply guarantees that there is no border in Ireland, is a requisite of any deal. What Labour’s current position on the Withdrawal Agreement is is unclear.

 

So, in a sensible world, the (non-negotiable) Withdrawal Agreement itself should be agreed. The Political Declatation on the future relationship is a mere statement of intent and is all up for grabs. Mrs May ought to offer Parliament a series of rolling votes on what it seeks in the negotiations that are to come on the future relationship ( a Customs Union? Freedom of Movement? And so on.). She should then treat these votes as binding and proceed to negotiate on that basis.

 

It now seems however that she will not do that whilst the threat of a no deal Brexit remains possible. She wishes to have her Withdrawal Agreement and Political Declaration approved together.

 

This would however be a hollow victory. Of course if Parliament had approved her preferred version of the Political Declaration this would have given her a mandate to pursue it. Approval obtained at the point of a gun is not a mandate at all.

 

So, those Parliamentarians who do not wish to be blackmailed and wish to avoid a no deal Brexit, which must include reluctant Conservaitve Brexiteers with the same views as Mr James Kirkup and Mr Daniel Finklestein, should back a change of default. This does not lead ultimately to Remain, but changes the path by which Brexit must be secured by the government. Compel the European Research Group to compromise.

 

Change to a Referendum?

Instead of changing the default to revoke, it might be possible to change the default to a referendum. This would however require the form of the referendum to be specified. It would require far more complex legislation than my simple draft.

 

For myself, I consider this a worse option. It is hard to avoid the conclusion that another referendum would be a re-run of the last. We cannot maintain that it would instead be a referendum on ‘the terms’ as most of those remain to be agreed.

 

The best path is to change the default to revoke, thereby compelling those who desire Brexit to compromise with the 48% who did not.

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Change the Default

In democratic politics, the most important skill is the ability to count. Roughly, but adequately for our purposes, the division in the Commons as revealed in recent voting is along these lines

 

May’s Deal 200

Referendum 178

Labour’s “Permanent Customs Union” Brexit 141

No Deal Brexit 120

 

So, if we wish to avoid no deal Brexit we can discount the following options.

 

A Second Referendum: the political will and (probably) time is missing for this. The hurdles of legitimacy, form and political exhaustion rule this out. The PeoplesVote campaign have done well to keep this on the table as long as it has been.

 

“Revoke and Reconsider”: if a referendum is impossible, the numbers who would support revocation without one are very small. Most MPs do want to deliver the result of the referendum.

 

Norway +: although there might be a cross Parliamentary majority for this option, it needs a government that will negotiate it. No such government is in prospect even if there were a General Election.

 

A “Permanent Customs Union”: the actual difference between the government’s version of Brexit and what Labour is calling for is, when examined closely, almost insignificant. The real division  between the parties is: who gets to negotiate the future relationship. On this the government and opposition are, inevitably, irreconcilable. There is no deal that May could offer the Labour leadership to obtain their support for any version of Brexit.

 

May’s Deal?: here we enter the realm of uncertainty. The government loss by 230 votes was very large, much larger than I expected. The coalition against it is however obviously unstable, including Remainers such as Mary Creagh and Caroline Lucas, and no deal Brexiteers such as Jacob Rees-Mogg and John Redwood. If come the end of March the options are still no deal v May’s deal, in a rational world May’s deal should win. But, the scale of her defeat makes this a dangerous gamble.

 

Where there is deadlock, what matters is the default. Currently that is no deal Brexit. Even though supported by only around 120 MPs it has far greater prospect for success than other better supported options.

 

So, easily the most vital thing to do is change the default.

 

Legislation

The government cannot rule out no deal Brexit, that requires legislation.  Further as a matter of Parliamentary tactics it may wish not to do so as the only way of applying pressure to obtain more support is to leave no deal Brexit as the default.

 

However, unlike all other options, there should be a majority in Parliament for an amendment to the European Union (Withdrawal) Act along these lines.

X. Duty to revoke notification of withdrawal from the EU

(1) If Y days before exit day no approval of the outcome of negotiations with the EU has occurred in conformity with section 13 of the European Union (Withdrawal) Act 2018, the Prime Minister shall notify the European Council of the United Kingdom’s revocation of its intention to withdraw from the European Union under Article 50(2) of the Treaty on the European Union.

(2) Upon such notification, the sections of the European Union (Withdrawal) Act 2018 specified in schedule Z shall be repealed

Schedule Z

1 For the purpose of section X(2), the relevant sections are [all of them except 13].

 

This would make Remain the default result. This should obtain the support of all those who favour a  Labour led Brexit, a referendum, and May’s deal over no deal Brexit. It enables all those who favour the only Withdrawal Agreement there will ever be to say “I backed the government’s deal to achieve that” whilst avoiding a no deal Brexit.

 

It seems very unlikely that any amendment along these lines will be tabled by the government or the leader of the opposition. It is therefore vital that backbench MPs such as Nick Boles, Dominic Grieve and Yvette Cooper back such an amendment. It is our last, and best, hope.

 

[Please spread, this needs to be generally understood.]

How could “No Deal” be taken off the table?

It is sensible politics for Mr Corbyn to set as a condition of talks with Mrs May that she “takes no deal Brexit off the table.” That is because this is something that is beyond the power of her government. As she cannot do it, no talks take place, and Mr Corbyn ensures that he takes no responsibility for what is to come. (Save that he whipped his MPs to vote to trigger article 50 which set no deal as the default.)

 

How could no deal be prevented? There are only two options, their conditions are different under UK domestic law and EU law, and neither is under the control of the government.

 

The first is the approval of the 599 page Withdrawal Agreement. So far as the relations between the UK and EU27 are concerned, that is all that needs to be done. The 26 page Political Declaration, which sets out a possible framework for the future relationship, is a mere statement of intent. The future relationship is still all to be agreed. The Withdrawal Agreement is essentially non-negotiable. The Political Declaration is not only negotiable, nothing is settled at all. It is now a Golden Rule for those interested in Brexit that any article or interviewer that fails to draw the distinction between the two can be ignored.

 

Under UK domestic law however, both the Withdrawal Agreement and the Political Declaration must be approved under the European Union (Withdrawal Act 2018. As the Commons rejected them by 230 votes, this is not currently an option in Mrs May’s power.

 

The second is the revocation of the notice under Article 50. It is the government, not Parliament, that acts for the United Kingdom in international law. The Court of Justice of the European Union in Wightman decided that the UK does have the power to unilaterally revoke this notification. So, what would prevent Mrs May from doing so?

 

The government may not use its prerogative powers to ‘frustrate’ an Act of Parliament. Laws made by the legislature cannot be overturned by the executive. Section 1 of the European Union (Withdrawal) Act 2018 states that the European Communities Act 1972 is to be repealed on exit day. In order for that not to be so there would have to be no exit day. For the government so to act is flatly incompatible with the wording of the legislation.

 

Some might argue that the European Union (Withdrawal) Act expressed no intention to withdraw from the European Union, but merely provided a tidying up machinery for a decision taken by the government. This is both unpersuasive and irrelevant. The question is whether the government in purporting to exercise its powers would be doing so incompatibly with the terms of enacted legislation. It would.

 

This is a much more straightforward issue than that before the UK Supreme Court in Miller where the dissentients (rightly) argued that notification was not inconsistent with the terms of the European Communities Act.

 

Legislation would therefore be required to authorise the government to revoke article 50.

 

So, what legislation could make remain the default, rather than no deal Brexit? The easiest would be an amendment to the European Union (Withdrawal) Act, or a freestanding short Act, along the following lines

 

X. Duty to revoke notification of withdrawal from the EU

(1) If Y days before exit day no approval of the outcome of negotiations with the EU has occurred in conformity with section 13 of the European Union (Withdrawal) Act 2018, the Prime Minister shall notify the European Council of the United Kingdom’s revocation of its intention to withdraw from the European Union under Article 50(2) of the Treaty on the European Union.

 

(2) Upon such notification, the sections of the European Union (Withdrawal) Act 2018 specified in schedule Z shall be repealed

 

Schedule Z

1 For the purpose of section X(2), the relevant sections are [all of them except 13].

 

A call by Mr Corbyn for legislation of this kind, which changed the default result, would be coherent. It is, however, very difficult to contemplate the current government trying to do so and not falling. Mrs May might call for such legislation, but this would remind me of the only joke in Shakespeare I ever found funny

 

Glendower:
I can call spirits from the vasty deep.

Hotspur:
Why, so can I, or so can any man;
But will they come when you do call for them?

 

 

Addendum: For Lawyers Only

The frustration argument above is in fact slightly more complex. Section 1 is not yet in force. Section 25(4) provides that it is brought into force on such day as a Minister of the Crown appoints by Regulation. If the government could prevent there from being an exit day (by giving notification of withdrawal to the EU) section 1 could not be brought into force, by this or any future government. Section 25(4) would therefore be frustrated. because section 1 was. (A near identical issue was that which arose in the decision of the House of Lords in R v Secretary of State for the Home Office, ex p. Fire Brigades Union).

 

Another argument might be that the European Union (Notification of Withdrawal) Act 2017 implicitly gives the government authority to revoke the notice. Even if we accept this, which seems a stretch  given the Act’s words and purpose, it is no longer arguable. The problem with revocation by the government alone is its inconsistency with the terms of the subsequent 2018 Act. Any such implied statutory power is therefore ruled out for the same reason as any prerogative power.

 

 

 

 

May’s Plan B (and C?)

Once May loses the meaningful vote on Tuesday 15 January, which she looks certain to do by around 90 votes, what are her options?

 

One thing that is not an option is for her to rule out no deal Brexit as Labour’s Shadow Brexit Secretary Sir Keir Starmer has claimed. This claim is not only nonsense, but dangerous. The only two ways of avoiding no deal Brexit are

 

(i) The approval by the legislature of the Withdrawal Agreement and the Political Declaration

or

(ii) Revocation of art 50, which will require legislation to overturn the European Union (Withdrawal) Act 2018

 

We might be able to delay these choices (by obtaining the agreement from the EU27 to an extension to art 50), but in the end they are the only two. Each requires the legislature to act, neither can be done by the government.

 

The problem is not therefore that Parliament needs to take back control. Parliament, not the government, has control. But with a hung Parliament, under nobody’s control, the danger is that no majority can be obtained for either of these two options.

 

Decoupling the Withdrawal Agreement and the Political Declaration

 

The “meaningful vote” requires approval of both the binding Withdrawal Agreement, and the Political Declaration, a non-binding statement of intent on the future relationship. If May had been able to obtain such approval, this would have been politically advantageous. It would have given her the mandate to seek agreement on the future relationship along the lines spelled out, without the need to return to Parliament.

 

For no deal Brexit to be avoided however, and for the UK to obtain the 2 year transition period. all that is required at international level is the Withdrawal Agreement. As the Professor of European Union Law at the University of Cambridge  has pointed out, May can offer Parliament the power to set guidelines on what is agreed on the future relationship (freedom of movement or not, Customs Union or not etc). Nothing at all in the Declaration prevents the government from pursuing any available option that Parliament prefers.

 

This flexibility would not win over the European Research Group, whose objection is to the backstop in the Withdrawal Agreement, but in a rational world it should win over others who accept the referendum result and do not object to the UK guaranteeing that there will be no border in Ireland.

 

In principle therefore, such a move would place the Labour opposition in a difficult position. They have, as far as discernible, no substantive objection to the Withdrawal Agreement. Their demands (eg a Permanent Customs Union that gives the UK a “say”) concern the future relationship. However, in practice it may be doubted whether this difficulty is a real one. Labour can maintain the claim that the deal is “bad” for unspecified reasons, make as much noise as they can about the procedure the government is pursuing, and hope few people notice.

 

(Notice that May cannot overcome her dilemma by offering Labour what they want. Labour has demanded the impossible, thereby closing that option.)

 

So, Plan B may attract some more support, but probably not the forty to fifty more votes required.

 

A General Election

If therefore, as seems possible, this suggested plan B is not enough to move the 40 or so votes needed, what is the plan C? One option might be a General Election. If the Conservatives were far ahead in the polls, it would be tempting to seek a General Election in order to obtain a majority sufficiently large so as to outweigh the ERG refuseniks.

 

However, this is precisely what May tried in 2017, which failed. Any election, just as the last, could not be confined to the issue of Brexit. May is a poor campaigner, doing far worse in the polls now than she did then. This is not therefore a viable option.

 

A Referendum

Although a majority of Mr Corbyn’s party favour a second referendum, he has steadfastly refused to call for one. Studied ambiguity, whilst being slightly more Remain-y than the Conservatives, has served him well. In a first past the post system with two dominant parties, those who strongly favour Remain when presented with a binary choice between the party of Jacob Rees-Mogg and another slightly more favourable to the European Union have nowhere else to go.

 

In his speech in Wakefield on 10 January (a significant choice of location) Mr Corbyn on its face steered a middle course between Leave and Remain. But if we parse what he said with care, he now favours the former. So, we are told that the “real divide” is not between Leave and Remain but between the many and the few (ie Brexit does not matter). Further we learn  that the referendum was really about “what has happened to our people over decades.” These are not the words of a man who favours sticking with that status quo (ie Remain) who is about to pivot to favouring a referendum.

 

Any conceivable referendum would be of the form “Withdrawal Agreement v Remain.” No responsible government would put “no deal Brexit” on the ballot. The economic consequences of this option are so serious that it would be equivalent to giving a cancer patient the choice of being treated by homeopathy. The danger would be that given the choice too many blind optimists would opt for it. That being so, a referendum would require Mr Corbyn to side either for or against Brexit. This would go against his long term strategy of ambiguity.

 

The prospect of Mrs May backing a referendum look superficially stronger. Although she has ruled it out so far, it offers her a way out of Parliamentary deadlock. Unfortunately a referendum of the form “Withdrawal Agreement v Remain” does look uncomfortably like a rerun of the 2016 referendum. It would not be a referendum on the terms of Brexit as the nature of the future relationship is still all to be agreed.

 

Her position looks to be the converse of Mr Corbyn’s. She may favour a second referendum, but the majority of her party would not. She would split the government.

 

Therefore I do not think, as presently advised, that there will be a ‘plan C’. Mrs May may well consider that she has done her duty to the country by obtaining the only Withdrawal Agreement that is possible, and by presenting it to Parliament. Her duty to her party requires her not to follow Peel on the Corn Laws and to split her party in two. If, in the resultant deadlock, we exit without a deal  she may conclude that that will not have been for want of trying on her part. Oh dear.

What are the Alternatives to “May’s Deal”?

As there seems to be a Parliamentary majority for Brexit, but against both a ‘no deal’ Brexit and ‘May’s Deal’, it is tempting to ask what majority for a different kind of Brexit could there be?

 

A “Permanent” Customs Union

The substantive objection given by Labour to May’s deal is that they would prefer a permanent Customs Union with the EU with a British say in future deals. This is unpersuasive for four reasons.

 

First “May’s Deal” not only does not rule out a Customs Union, it all but guarantees it. The backstop in the Withdrawal Agreement guarantees that Northern Ireland must remain within the Customs Union so as to ensure that there is no border in Ireland. Because the United Kingdom succeeded in obtaining agreement that the backstop applied to the whole United Kingdom, it has the option of remaining entirely within the Customs Union. Unless the United Kingdom wishes there to be a border between the mainland and Northern Ireland, and the current government and any conceivable government are opposed to that, that entails the United Kingdom remaining in the Customs Union. To that extent, there is no difference between the government and the opposition. (Although no doubt there would be agreement on the United Kingdom no longer having any option.)

 

Second, as has been made clear for over two and a half years, the EU will not be agreeing the form of the future relationship until after Brexit. It is inconceivable that a change in UK government would alter that.

 

Third, as the competition law silk George Peretz QC has explained, the idea that the EU would agree to give a third country such as the UK a ‘say’ in the trade deals it could enter into is hopelessly unrealistic.

 

Fourth, nothing in life, including Customs Unions, is forever. Just as with the Single Market, there will be nothing to prevent a future UK government leaving (or joining) a Customs Union. Membership of the European Union provided certainty because it is so hard to unpick, as we are discovering. Any future relationship will not be like that. As a result, the fight over the ‘future relationship’ will carry on for the rest of my life. Which is something to look forward to.

 

The bottom line is that there is no difference between the positions of the government and the opposition, despite the noise.

 

Norway Plus

A more serious alternative is that of Norway Plus. This has been advocated in a pamphlet by the Labour MP Lucy Powell, and the Conservative MP Robert Halfon. The polemicist Owen Jones and the journalist Stephen Bush  have both argued that this option may have more prospect for a Parliamentary majority than May’s. This is because it entails membership of both the Customs Union and the Single Market. It therefore has appeal to those favouring a softer Brexit.

 

However, this option cannot simply be adopted by Parliament, as Mr Jones at least seems to believe. The future relationship is still all to be agreed. The only deal entered into so far is the Withdrawal Agreement setting out the terms of exit. What would be required is a government in power with the policy of pursuing Norway Plus. Initially, at least, we would require the current political declaration (which is what lawyers call a Statement of Intent and not a binding agreement) to be changed by the parties.

 

This is not the current government’s policy, and stands no chance of being the policy of any conceivable Conservative government. MPs, such as Mr Halfon are a minority in his party.

 

It seems probable that a majority of Labour MPs would favour a government that pursued this policy. It is not, however, the current policy of the leadership, and Mr Corbyn’s speech today although unclear on many things, was clear that this would not be the policy he would pursue. Labour MPs do not have the power to remove Mr Corbyn.

 

As a result, even if there were a General Election, the result would not be to put in place a government that favoured pursuing Norway Plus. Although there may be a majority in Parliament who favour this option, what is required is a government that is prepared to obtain an agreement on this basis. No such government is in prospect.

 

Given Brexit, the choice reduces to May’s deal or no deal  We are currently in a game of chicken, familiar from Rebel Without a Cause. Will those who oppose May’s deal pull up in time to prevent no deal? Oh dear.

 

 

The Path to Brexit Disaster

 

On 30 June 2016, a week after the referendum on the UK’s membership of the European Union, EU trade commissioner Cecilia Malmström was interviewed on Newsnight. She made it clear that Brexit would be a two stage process. First the terms of withdrawal would be agreed, and then after exit the future relationship would be settled.

 

This process was implicit in the wording of article 50. It greatly strengthened the EU’s hand in negotiation as it meant that the UK could not refuse to pay the ‘exit bill’ unless it received X, or Y in the future. We only get to the next stage if we pay the bill.

 

The process set out two and a half years ago by Ms Malmström has, inevitably, been the one that has been followed. We now have two documents. One is a long 599 page legal document, the Withdrawal Agreement, setting out the terms of exit. The other is a 26 page non-binding political declaration setting out the framework for the future relationship.

 

The European Union (Withdrawal) Act 2018 sets as a condition of ratification of the Withdrawal Agreement that the Agreement and the Framework are approved by Parliament. This is odd as the only legally significant thing is the Withdrawal Agreement. Neither side is legally bound to anything by the political declaration. The future relationship is still all to be agreed.

 

Is Remain Possible?

If nothing more happens the United Kingdom will leave the European Union on 29 March 2019 without a deal. The Court of Justice of the European Union has declared that the UK has the unilateral right to revoke its notification of its intention to leave under article 50. (I don’t myself find its reasons remotely convincing, but who now cares as it has clearly strengthened the UK’s position.)

 

The government cannot revoke art 50 without legislation authorising it to do so. This is because the European Union (Withdrawal) Act 2018 clearly expresses Parliament’s intention to exit the European Union. The government’s prerogative power at international level cannot be used to overturn domestic legislation. (Miller was, in my opinion and that of the dissentients, wrongly decided because notification did not so frustrate the European Communities Act).

 

Legally, Parliament could pass legislation repealing the Withdrawal Act and requiring the government to revoke article 50 without another referendum. Politically this is, in my opinion, inconceivable under any circumstances (there would be a few votes to do so in the face of no deal Brexit but nowhere near enough).

 

So, politically, legislation requiring a second referendum to take place before Brexit day is required if Remain is to succeed. (A General Election won by a party advocating revoking article 50 would also suffice, but as neither potential governing party favours this it may be discounted). There is no time before March 29 for such a referendum to happen. Brexit day could be delayed if the other member states of the European Union agreed (the UK has no unilateral power of delay). Politically, they would probably look benevolently upon a United Kingdom government request for such delay if the request is made for this purpose, and not for the purpose of reopening the (concluded) negotiations. Under the Withdrawal Act, the government has the power to bring Brexit day under the Act into line with that agreed with the other member state.

 

However, my judgement is that Eleanor Sharpston (Advocate General to the CJEU) is correct that the latest date any such extension could be agreed for is 2 July 2019. This is because of the European Parliament elections in May, and when that Parliament sits. It will not be acceptable for UK citizens resident in the rest of the European Union to be voting for a Parliament of a Union in which they will not be citizens. It also seems very unlikely at this point that the UK will be running elections for MEPs for the next European Parliament, even if they could be given a foreshortened tenure to end upon Brexit.

 

Could there be a second referendum between now and July? If there were the political will, the necessary legislation could be passed and the vote organised. But with both the government and the opposition opposed, this seems impossible. The Labour conference Brexit motion simply left the decision for the path forward to the leadership, who clearly do not favour a second referendum. The clock has now been rundown so that even were there to be a dramatic late volte-face by the leadership there is probably insufficient time for the necessary legislation to be passed through a divided Parliament.

 

So, with great sadness, my view is that Remain is no longer a viable option. There is neither the time nor the political will.

 

The Withdrawal Agreement

Given the premise that Brexit is now inevitable, what is objectionable about the Withdrawal Agreement (ie if there must be a Brexit, what better agreement could there be)?

 

The answer from the perspective of the European Research Group  is the Irish backstop. In order to guarantee that there is no “hard” border between the north and south of Ireland there need to be no customs checks. This requires that there is a customs union between the north and south. By agreeing to the backstop the UK and the EU have restricted the options for the future relationship. Northern Ireland must remain within a Customs Union with the EU. The great concession by the EU, underplayed by the UK government, was to agree that this applied not just to Northern Ireland but to the UK mainland as well. So, the UK has obtained something inconsistent with Cecilia Malmström’s starting point. It has, at its option, the power to keep all of the UK in a future customs union with the European Union. The Withdrawal Agreement looks like a good deal for the UK given Brexit.

 

What the UK loses is the ability to impose a border between the north and south of Ireland (it could withdraw the rest of the UK from the Customs Union and impose a border between the mainland and Ireland). It is understandable how those who place no great store by the Good Friday Agreement may wish to oppose this, but it is very hard to understand what the objection of the bulk of Labour MPs and members to guaranteeing the lack of a border in Ireland could be.  It is unimaginable what the substantive objection of someone such as Jeremy Corbyn, who has campaigned throughout his adult life for the north to be united with the Republic, could be.

 

On 2 January My Corbyn gave as his reason for opposing the Withdrawal Agreement that it does not include a “full” Customs Union. This makes no sense. The Customs Union itself will be part of the future relationship: the European Union have made clear from the outset that it will not be agreed until after Brexit. The backstop however guarantees that there will be a customs union with at least Northern Ireland, and that the UK can require that it applies to the entire UK.

 

Labour’s actual objection is not to the Withdrawal Agreement, with which they have no serious complaint, but to the Tory government that will be negotiating the future relationship. That is, of course, fair enough, but leads to a nasty variant on the Prisoner’s Dilemma.

 

The Prisoner’s Dilemma

If the premise that Remain is no longer an option is correct, the only paths now open are the Withdrawal Agreement, or Brexit with no agreement. Renegotiating the Withdrawal Agreement is not an option at this stage, and it is unclear what the UK would seek to change in any event (pay less of course, but that isn’t going to be reopened). Unless the agreement is approved by Parliament, the default is no deal Brexit. It matters not a jot that there is no majority that would vote for a no deal Brexit in Parliament. That is the result. So, if the premise is correct, the only way of avoiding no deal is to support the Withdrawal Agreement, the only one that there will ever be.

 

Given that choice, I am sure that if any vote in Parliament could be done confidentially, the Withdrawal Agreement if it is the only viable alternative would pass with a large margin. There is a minority, including Mr Rees-Mogg who obtained a 2:1 in history, who taking a very long view of 50 years or more claim to be able to perceive that overall benefits will accrue eventually from a ‘no deal’ Brexit. But in the short, medium, and reasonably long term, the economic and other consequences would be so serious that only the minority European Research Group (and not all of them) would back it behind the veil of anonymity.

 

Unfortunately,  there are political costs for many MPs who back “May’s deal”. Those with ambitions within the Tory party (such as Raab and Johnson) will benefit if they oppose any deal, as Tory members prefer a no deal Brexit. Within Labour, the political cost for any MP who chooses to back a Tory deal (or even abstain) looks high as that reduces the chance of bringing down the government.

 

And so, the impossible seems possible. We might end up with no deal Brexit, even though the actual Withdrawal Agreement we have is the only one we’ll ever have (and is in many ways a good deal). MPs face a choice between the best option now available for which they may well pay a personal political price, or avoiding that personal cost and our leaving with no deal. Oh dear.

The Icing on the Cake

Innkeepers

Learie Constantine was a black Trinidadian cricketer, who went on to become Trinidad’s High Commissioner to the UK and the first black peer. In 1943 he arrived with his family at the Imperial Hotel in Russell Square. He was subsequently informed that he could only stay one night, because of complaints about his presence made by white American servicemen staying at the hotel. He sued for damages, and won.

 

Innkeepers are one of a group of trades called common callings (including farriers and attorneys) who are obliged to serve all those who present themselves. By refusing this service the Hotel wronged Constantine. Legally, the interesting point in the case is that damages of five guineas were payable despite the absence of proof of any consequential harm being suffered, as he had stayed at an alternative hotel.

 

Bakers

Most trades are not “common callings” and there is no right to be served. So, a shop can, at common law, refuse to transact with me for no reason, or even a bad or discriminatory one. The Equality Act (Sexual Orientation) Regulations(Northern Ireland) 2006 (SI 2006/439) (“SOR”) and the Fair Employment and Treatment (Northern Ireland) Order 1998 (SI 1998/3162 (NI 21))(“FETO”) alter this common law position. SOR prohibits discrimination in the provision of goods, facilities or services on grounds of sexual orientation, FETO on the grounds of religious belief or political opinion. Outside of the specific cases regulated by discrimination law, shop owners remain free to refuse to serve on the basis of bad or irrational reasons.

 

Mr Lee, a gay man, ordered a cake from Ashers Bakers in Belfast. The icing design he ordered included the Sesame Street characters ‘Bert and Ernie’, a logo for the campaign group QueerSpace and the headline “Support Gay Marriage”. The owners, having initially taken the order, declined to produce the cake on the basis that to do so would be inconsistent with their Christian beliefs, in particular their opposition to gay marriage. The Northern Ireland Court of Appeal held that this was a case of discrimination on the basis of sexual orientation, this was appealed to the Supreme Court who concluded that no actionable discrimination had occurred.

 

Sexual Orientation

The court rejected the SOR claim on the basis that the objection of the bakers was not to who Mr Lee was, they had quite happily served him before and would not refuse a gay man a cake on that basis, but because of the message on the cake. If Mr Lee had been a straight campaigner for gay marriage the bakers would have refused to serve him on the same basis.

 

A slight change in the facts shows how narrow this ground is however. The cake in question had been ordered to mark the end of anti-homophobia week. What if a “Bert and Ernie” cake had been ordered by a gay couple to mark their wedding day? Could the bakers have refused to make it without falling foul of the SOR rule? There is no great demand among straight couples for wedding cakes themed in this way. How then could it have been said that bakers’ objection was merely “to the message, not the messenger?”

 

Political Beliefs

The route to ruling that there was no discrimination against Mr Lee on the basis of his political beliefs (here his support for gay marriage) was more difficult. Here the distinction between the political opinions of Mr Lee and the message he wished to convey was harder to draw. The only people who will be prejudiced by a refusal to produce cakes in support of gay marriage will be those who desire such cakes because of their support for gay marriage. Being prepared to offer them other kinds of cake is not really the point, anymore than the willingness of the proprietors of the Imperial Hotel to find Mr Constantine a different hotel.

 

Freedom of Speech

It was here that the Supreme Court relied upon s 3(1) of the Human Rights Act, which requires all legislation to be read so far as possible as compatible with the European Convention on Human Rights. Here the relevant rights were freedom of conscience and religion (article 9) and freedom of expression (article 10). Here the court found that requiring the bakers to express a message that they profoundly disagreed with would be a violation of the Convention, so that FETO should be read narrowly so as to not cover this case (although what the correct ‘reading’ of FETO is is somewhat obscure).

 

Here I have considerable sympathy with the NI Court of Appeal’s opinion that the baker was not being compelled to express anything at all. The message was that of Mr Lee. Nobody thinks that a baker endorses the messages placed on cakes. “I love you Mum” or “Manchester United Forever” appearing on cakes are not thought to be the statements of the baker himself. This is not like the case of the Muslim petty officer forced to doff his cap during Christian prayers. which involves an outward show of personal belief.

 

It may be objected that the baker was publishing the information, in much the same way as a printer publishes a newspaper. The printer may commit an actionable libel even where the author of the statement is another.

 

However. it may be doubted whether the concept of ‘freedom of expression’ is intended to be this broad. Its role is to allow a free market in ideas, however abhorrent. People should neither be prevented from expressing, or required to express, beliefs they do not hold. It may be doubted whether this is what was being required of the bakers, whom nobody considers to be the authors of the message on their cakes.

 

Independence

The intuitive problem with SOR and FETO, and why the court may be tempted to read them narrowly is that they require us to confer benefits upon other people. The law does not generally, and should not, require us to be good. If I wish to withhold a benefit from you, such as my particular skill in making a chocolate cake, I should be free to do so if I wish for good, bad or no reason at all. Or so the reasoning goes. The law should be reluctant to require you to confer a benefit upon me when this is in conflict with your sincerely held beliefs. Like Mr Constantine, beyond the sense of insult and affront, there is no harm to the individual consequent upon the discrimination because of the ability to obtain the goods or services elsewhere (monopoly suppliers requiring more regulation than those operating in a market with ready alternatives available).

 

Should shopkeepers be required to trade with those who support Brexit if they do not wish to do so, if we are not going to require them to trade with everyone who seeks their custom, as we do with innkeepers? The justification for doing so is a difficult one, and so it may be wise for a court to side on the basis of freedom outside of the clear cut case.

 

Law Books Everyone Should Read

The criteria I have used for inclusion on this list are as follows. First universalism. These are works people in all times and places would benefit from reading, ruling out works specific to, say, the English criminal justice system. Second I found each of them immensely helpful in learning how to be a lawyer. I have made no concessions for accessibility, some are easier to read than others. I wouldn’t recommend that a student about to begin on a first year undergraduate degree read all of them before starting.

 

All of the authors on this list are dead white men (with the possible exception of Gaius who may not have been white). That is, I think, an inevitable product of the exclusion of women and others from the discipline in the past.

 

 HLA Hart, The Concept of Law

Written as a book for students in the Clarendon law series, this is the single most important work of legal theory of the last century. My only quibble is with the title. It sets out an account of the conditions necessary for us to identify posited law, within any society. Other conceptions of the word “law” are in use, and are no less correct.

 

When I studied law several decades ago, the most important critic of Hart was Ronald Dworkin, who in a series of books and articles sought, amongst other things, to tear down the wall Hart built between the fact of the posited law as it is, and the separate question of what justice requires. My view, for what it is worth, is that Hart has proven the clear victor in this dispute. There is more to be gained from reading Lon Fuller’s The Morality of Law  as a response.

 

(Buy a cheap second hand copy here, there is no point buying the third edition instead of the second.)

 

The Institutes of Gaius

Strictly speaking, this is the only ‘law’ book on this list (conceived as an account of a body of posited rules).  It is an introductory law text for students written in the second century AD. Most things (art, science, philosophy etc) began with the Greeks. That is not true of law, where the Romans were the true originators.

 

Once upon a time, all students would have studied Roman law, but at least in England this practice has nearly died out. It is very useful for everyone to have some familiarity with a legal system different from their own. This enables us to break free from the rigid mindset that the law as it is is inevitable and just. For common lawyers, it is important to have some knowledge of civilian law (and vice versa) as the comparisons within the respective traditions are less fundamental.

 

Roman law is a useful comparator as it is (inevitably) less detailed than a modern legal system, enabling us to see its skeleton. Start with Gaius, and you will have a reasonable grasp of how any legal system has to be structured.

 

(Free to read in English here.)

 

JS Mill, On Liberty

A classic text on the proper limits of law. Although I was greatly influenced (and convinced) by Mill’s Harm Principle when younger, I am now certain that Mill’s arguments are often both weak, and contingent on facts about the world and human behaviour that are never proven. Regular readers of this blog will have realised that I am no utilitarian, and Mill’s work was, in my view, hamstrung by his commitment to this (ridiculous) intellectual tradition.

 

That said, Mill’s instincts were good, and there is benefit from considering why his arguments (largely) fail and what else might justify the kinds of conclusions he wished to reach.

 

(Available for free.)

 

I Kant, The Doctrine of Right

Which leads us to by far the worst written, most frustrating, and profound book on this list. Kant’s The Doctrine of Right is a difficult work. It is probably best to read the Mary Gregor translation, available here, rather than one of the creaky nineteenth century versions available online.  Part 1 is the section to read (and re-read, and re-re-read.) Most philosophers neither know much about law nor are interested in the kinds of questions lawyers need answering. Kant was an exception. (The Groundwork to the Metaphysics of Morals concerns quite separate issues.)

 

WN Hohfeld, Fundamental Legal Conceptions as Applied in Judicial Reasoning

Technically not a book but two articles in the Yale Law Journal from before the first World War (although subsequently collected as a book). Hohfeld died in the influenza epidemic of 1918 at the age of 39. His work was not wholly original, most of the distinctions he sought to draw had already been made by the New Zealander John Salmond. But, it is to say the least unusual for the work of any lawyer to be worth reading a century after his death, law books usually having the shelf life of a car manual. The distinctions he drew are basic and important, and avoid intellectual confusion.

 

If I had the choice of making the members of the UK Supreme Court read one work that would halp them to avoid error, it would be this.

The Supreme Court as Legislature

Marriage and Money

Last week the UK Supreme Court handed down two judgments on the same day, one of which was important.

 

The unimportant case was the wholly unsurprising decision in Owens v Owens The Supreme Court confirmed that the Matrimonial Causes Act 1973 does indeed say what it says, and that a divorce is not available simply on the basis that the marriage has broken down.

 

That no fault divorce is not available without a separation period of two years appears draconian and wrong, but is neither news nor a major social problem.  People such as the bloody-minded Mr Owens, who will contest a divorce to the bitter end, are fortunately few in number. Absent a dispute as to assets or child custody, and changing the rules on no fault divorce will not eliminate those, most divorcing couples will nowadays lie on the form, tick the box saying they have been separated for two or more years, and be able to go their separate ways. That the law requires this is silly, but not to the same degree as the pre-war world of requiring one party to be found in flagrante in a hotel in Brighton with a third party.

 

A far larger social problem is cost, not the silly rule. The divorce court fee is £550. This is in addition to the fees of solicitors (which in a non-contested case may be low if you shop around online.) This fee covers little more administration than the sending of a couple of letters. For the vast majority of people, and especially the poor, this is a far higher barrier to divorce. Many couples must choose to stay married for no better reason than that they cannot afford to pay not to be. As so often, in the real world it is the money that matters, not the rules.

 

The important ignored decision was Prudential Insurance Company Ltd v HMRCThis was significant for three reasons. First the decision was a surprise and will save the Revenue more than £4 billion (see paragraph 36 , this is probably a conservative figure because of the broad basis of the decision of the court). Second it is important within the technical and boring area of the common  law of restitution, changing the position from that which was previously understood. Third the Supreme Court overturned the decision of the House of Lords from ten years previously, Sempra Metals v IRC. This third aspect is the constitutionally significant one.

 

Precedent

As is well known, up until 1966 the UK’s ultimate appellate court, until 2009 called the Judicial House of Lords, could not overturn its own decisions. So, however wrong one of its own decisions was, the House of Lords, and lower courts, was bound to follow it. The justification for this position was that it increased certainty, and the legislature could always intervene. However, this was never very satisfactory. The distracted legislature enacts very few laws (although nearly twice as many per annum thirty to forty years ago as now) and does not fulfill this corrective role in any meaningful way. This led to the oddity that is the Practice Statement of 1966. This was surprising not for what it did, it had long been thought by many that the House of Lords should be free to overrule itself, but because the change was made not through the decision in a case, where it could form part of its ratio and hence the law, but by the court simply announcing it. Since then our ultimate appellate court has overturned its own earlier decisions by relying on the Practice Statement on many occasions (over two dozen times on my count).

 

However, the Practice Statement makes it clear that the court will remain mindful of the need for certainty  and “the danger of disturbing retrospectively the basis on which contracts, settlement of property, and fiscal arrangements have been entered into and also the especial need for certainty as to the criminal law.” So, the House of Lords in Cambridge Water Co Ltd v East Counties Leather Ltd refused to overturn the ‘rule in Rylands v Fletcher’ not because it was correct, but because such a radical change would be, according to Lord Hoffmann, “inconsistent with the judicial function.” In Chartbrook v Persimmon the same judge refused to overturn the rule excluding pre-contractual negotiations for purposes of construction of a contract not on the basis that he thought the rule a good one, but rather because the Practice Statement was only supposed to be invoked in the small number of cases where the court was confident that the earlier decision was “impeding the proper development of the law or to have led to results which were unjust or contrary to public policy.”

 

Dangerour Radicals?

What is surprising about Prudential Insurance Company Ltd v HMRC is not that the court overturned a decision of relatively recent vintage, that has happened before. Rather they did so first without having been asked to do so by the successful party, second by adopting an argument that was not made to them (although it might be said to have been a logical extension of an argument that was made), and third without invoking the Practice Statement. (For those interested in the finer points of the dust dry law of restitution, the relevant arguments of counsel for the Revenue are available online temporarily here from 1 hr 44min and here  from 1 hr 29 min).

 

The court sought to justify their departure from the earlier authority on the basis that subsequent decisions had undermined it. So, it has now become clear that the CJEU was not as bothered about what the position was as a matter of UK domestic law as was once thought, it is now clear that the legislature is not going to intervene to correct the mess that is the English law of limitation, and some tangentially related subsequent cases don’t fit happily with the thrust of the reasoning in Sempra (see Prudential at [55]-[67]). However, the reason for overturning the earlier decision is, at root, that it was wrong and always was (see [68]-[80]).

 

At ultimate appellate court level there is a tension between acting as a law maker, and acting as a court so as to do procedural justice for the parties before them. The court’s role as law maker is constrained by the cases that come before it. It doesn’t matter how appalling and wrong an earlier decision may be, unless a case comes before them where it is challenged it will remain the positive law. So the (apparent) rule that a husband could not rape his wife was only authoritatively overturned in 1991, when a case finally came before the court. It is hard to believe the rule could have survived if ever challenged decades earlier. So, the temptation is to do the just thing, when the opportunity arises even if the litigants don’t ask you to be so bold.

 

In retrospect, the Revenue were too cautious in failing to challenge the earlier erroneous decision. This must by now have cost the UK a sum of money the mind cannot comfortably contemplate, enough to pay for all divorces for decades. In now overturning the earlier decision, the court has taken another step towards being a subordinate legislature, rather than an ultimate appellate court.

Legality, Justice and Syria part 2

I have already set out, as briefly and simply as I can, the positive claim of why I consider the military action against Syrian targets on 13/14 April to have been contrary to international law, but also why I do not consider that to be determinative of the moral question of whether it was the right thing to do. This post is negative in form. I shall consider a number of arguments against the position I have already set out in order to knock them down.

LAW

General Assembly Override?

In his in many ways excellent and clear advice to the Deputy Leader of the Labour Party, Professor Dapo Akande suggests that the collective action route is, and was, not closed off by deadlock in the Security Council.

 

In 1950 a deadlock had arisen because of the withdrawal of the Soviet Union from the Security Council over the refusal to recognise the People’s Republic of China as the legitimate representatives of the Chinese State. This prevented any UN military action over the Korean War. UN Resolution 377A, also known as the “Acheson Plan”, was a resolution of the General Assembly whereby if the permanent members of the Security Council were deadlocked, the General Assembly could in an emergency special session authorise the use of force. Although this route to authorise military force has never been used, could it be as Akande suggests?

 

No. That resolution did nothing to alter the terms of the Charter, which contains the rules which the signatory states have agreed to. Article 108 of the Charter allows for its own amendment where this is done by two thirds of the members of the General Assembly, and ratified by two thirds of the members of the United Nations, including all the permanent members of the Security Council. Resolution 377A did not meet this threshold (because it could not without Soviet agreement which it withheld). Resolution 377A does nothing at all therefore to the Charter. The Charter is what it purports to be: an exhaustive code of when military force is permitted. The power to block military action given to permanent members of the security council by the Charter has not been bypassed, and Article 108 is a form of double entrenchment of that power as those members can each block any change to the rules.

 

If an analogy is thought helpful, a resolution of the US Congress does not have precedence over the terms of the US Constitution with which it is inconsistent. The terms of the Charter take precedence over resolutions of the Assembly that are inconsistent with it, as those are the rules all parties agreed to.

 

Those who wish to rely upon strict legality should place no reliance at all upon Resolution 377A. If it had amended the Charter it would lower the bar for collective action. It has not.

 

Chemical Weapons

What of the Chemical Weapons Convention? Does Syria’s breach of that Convention justify military intervention?

 

As a matter of law, the answer is no.  One state breaking international law does not, alone, permit another state, or group of states, using military force against it.

 

Defence of the bright line rule against chemical weapon use may provide a moral argument as to why intervention is justified here, when it is not on other occasions, but it forms no part of the UK’s ‘humanitarian intervention’ legal justification for action. Theresa May in the Commons today understandably sought to conflate the two reasons, but they are quite separate.

 

Responsibility to Protect

What of the new international responsibility to protect doctrine (“R2P”), has that altered the position? The short answer is given by Professor Akande: it in no way altered the UN Charter rules on the use of force. This is clear from para 139 of the World Summit Document agreed by the Heads of State of the General Assembly. The responsibility to protect only arises within the confines already established by the Charter, it creates no new liberty to use force,

 

Article 2(4)

It has been argued that the wording of Article 2(4) of the Charter is not as restrictive in setting out a limit on the use of force as I have suggested. It provides:

All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.

So, it has been argued by Professor Anthony D’Amato (here at pp 4/5) that where the use of force does not threaten the territorial integrity of a state (as dropping a bomb on an airport does not) or its political independence it is not prohibited.

 

On this view, if the UK government decided to drop a bomb on Paris for a laugh that would not be prohibited. That is not a plausible reading of the provision. Dropping bombs on other states is the use of force against their political independence (states claiming a monopoly on when force is lawful within their territories).

 

[It may be noted in passing how badly drafted art 2(4) is. Something has gone wrong with the grammar. Should the last clause be read as “in any other manner [use force] inconsistent with the Purposes of….”?]

 

Customary International Law

The origin of the UK’s case for a right of humanitarian intervention is this article by Christopher Greenwood, pp 161- 171 of which should be read alongside Akande’s as the case for the government (pending the release of the advice that forms the basis of its published opinion.) The argument is that such a right has arisen by custom, through interventions in Western Africa, Kosovo, Iraq and elsewhere.

 

Akande has the better of the argument, but he obscures this with the order of his presentation.

 

Let it be assumed, arguendo, that a custom of humanitarian intervention has been established. Assume that countries like the UK, Russia, China and France have routinely, over a long period of time, used it as a ground for the use of force. Let us assume that there is widespread agreement amongst commentators that this has happened, and lots of reports and statements from a large majority of countries accepting that this has occurred. Does that suffice?

 

In the absence of the UN Charter, it would. Absent agreement, we must infer the positive law from customary usage. (And where that too is missing from natural law reasoning: It is just wrong to invade other countries just as it is wrong to murder people regardless of the absence of any custom or  positive law on the point.) Once however there has been an agreement entered into, this replaces the need to look to Convention. As in other areas, such as UK domestic law, Conventional rules are subordinate to, and rendered otiose by, posited legal norms. The rules applicable to Syria are determined by the agreement (the Charter) it has entered into. Conventions established by other states are neither here nor there.

 

It is possible to vary an agreement. This variation may be inferred from conduct, and not just express provision. However, the hurdle for proof of this is very high where the parties have, under their agreement, specified how variation is to occur (as they have in Article 108). Syria would also have to be a party to any such variation. Nobody seriously entertains that this could be established in this case.

 

So, before we get to the question of whether any such Convention can be established as a matter of fact (and I consider this doubtful) the preliminary question is would it matter if we could? The correct answer is that it would not.

 

Romanticism

Lawyers are prone to two kinds of romanticism, both of which are false and need to be resisted.

 

The first is that the law answers definitively the moral question of how to act and no further difficult and contentious moral enquiry needs to be entered into. Rules are important, and things will usually go better if we guide ourselves according to good rules set down in advance rather than using our own individual notions of what justice requires. Rules are not however the only things that matter. Trying to prevent the murder of innocents through chemical weapons, for example, may be an important consideration on the other side. The reasons for the ability of Permanent Members of the Security Council to block collective action through force are found in the political interests of Britain, the USA and the Soviet Union as negotiated at Yalta in 1945. It has little or nothing to do with considerations of what justice might require. We cannot assume that the rules are not abhorent, let alone that they are good.

 

The second is that we must assume that the positive law is just, and where it appears not to be interpret it, or add to it, or ignore it, in such a way that it is. It is this trap that those who argue that there is a right to humanitarian intervention are falling into. It seems wrong, as a matter of justice, that the rules should prioritise the sovereignty of nation states (which are legal constructs) over the interests of human beings. Surely there should be a rule permitting unilateral intervention in the case of genocide, therefore, (so the reasoning goes) there is. However, if we think like that, why bother with the positive law at all? Why not just cut to the chase and ask, in each case, what does justice require? The central point of the positive law is to give us guidance independent of what justice requires.

 

We should not be romantic. We should have the courage to look at the positive law and accept that it is unjust, as in some respects international law is.

 

Morality

The number of bad moral arguments that can be made is infinite, but here are two prominent ones.

 

What about Myanmar?

There is a large amount of injustice in the world. If it is morally required to intervene in this case, why not in all cases? Why no intervention to stop or deter the killing of Rohingya people in Myanmar?

 

This kind of “what about” argument is never very persuasive, but first it must be conceded that if intervention is morally justified in the case of Syria, it is morally justified in all morally identical cases. Like cases should be treated alike.

 

However, three further points may be made.

 

First the use of chemical weapons morally differentiates this case. The use of chemical weapons in World War I led to the 1925 Geneva Protocol banning the use of chemical weapons. This bright line rule has been respected for purposes of combat for nearly a century (chemicals have of course been used against human beings by states). Although someone left to die in agony by a cluster bomb may suffer as much as someone poisoned by chlorine gas, the absolute prohibition was an advance that is worth defending.

 

Second, ought implies can. The states intervening in Syria lack the practical ability to end or deter many injustices in the world. Without the capacity to act there is no duty to do so.

 

Third the moral argument in favour of intervention may only establish a liberty to intervene, not a duty to do so. Exercise of the liberty in one case does not require it in all others. We should not refrain from trying to stop one injustice on the basis that we cannot stop all others.

 

The Bad Motives of Leaders

What if, for the sake of argument, the leaders of the intervening powers had bad motives? Say President Trump’s motive was to distract attention from the Stormy Daniels affair, or Theresa May’s was to improve the local government election results. Does that make it immoral to follow them?

 

No. If our reason for approving of the bombing were the unthinking following of leaders, rather than preventing the murder of civilians by chemical weapons, then their bad motives may be imputed to us. The true justification for the state’s action (or lack of it) is independent of the subjective motives of the leaders of the country carrying out the act. We cannot assume that because it is carried out by Trump that it is, therefore, wrong.

 

A better argument might be the fear of escalation, that bad leaders with bad motives cannot be trusted not to go too far. That maybe so, but their bad motives alone cannot be a determining factor. The evil man may be prudent, whilst the good recklessly ambitious.