Friday, 15 January 2021

Scottish Government fish quota consultation response

I am not qualified to offer a meaningful response to the specific questions asked, but would like to offer some general comments. When I started out in legal practice in 1970 the concept of quota, be it for fish, milk or any other commodity, was unheard of, and as time went on we had to get used to it as a newly created right of property, in various areas of practice, such as insolvency work. Since the Brexit referendum I have spent time researching the implications of this specifically with regard to fish quota. I hope these comments will be of assistance in the longer term, perhaps after Scotland has got complete freedom to form her own policy in these matters.

I think it would come as a considerable surprise to most lay people that allocations that were originally given out free came to acquire status as items of property capable of being bought and sold and, as such, entitled to protection under the European Convention on Human Rights. People would, I think, also be disturbed to find that this result does not arise from anything intrinsic in the original allocations, nor from anything that the EU has imposed on the UK, but purely and simply from decisions taken by successive UK governments in pursuance of neo-liberal agendas allowing quota sales. We have now arrived at a position where virtually nobody currently fishing got their quota for nothing; everyone has had to buy it and fishermen treat it as a major component in their retirement funds. Other odd aspects are the fact that it often costs more to buy quota than to buy the boat needed to exploit it, and the presence on the scene of what Canadians call “slipper skippers”, who never go to sea.
For authority on quota as a right of property, a “possession”, see the remarks of Mr Justice Cranston in the case of UK Fish Producers Association v Secretary of State for Environment Food and Rural Affairs, at paras 109 et seq in the English High Court in 2013, Law Report
It’s important to recognise that matters did not need to be thus. Not all European States permitted quota sales, for example the Republic of Ireland didn’t. See the following, from their Government:
“Fishing quotas are managed as a public resource which, according to Irish policy documents, means that quotas cannot be bought, sold or leased in any form. It is the minister’s prerogative to manage fishing quotas and they cannot be considered a property right. In order to manage quota utilisation in a non-tradable system, interventions take place to adjust quota allocations. In the case of whitefish, QMAC holds monthly meetings and can make allocation changes to maximise utilisation. This is more difficult for pelagic quotas, which are often set over longer time-periods. As quota management responsibility lies with the minister on the advice of QMAC, there is little direct, devolved role of POs or individual fishers in handling quotas.”
As the UK Government learned to its cost in the well known case of Factortame, once you permit the sale of quota you can’t control the nationality of the purchaser. As a result we know that 80% of English quota and a smaller, but unknown percentage of Scottish quota is now foreign owned. Apart from this, of course, the ships themselves may be British flagged, but they can be, and are, owned through limited companies which often have complex shareholdings including owners registered in various tax havens.
To summarise the above, that any attempt to do anything other than tinkering with existing rights of property will be met with very substantial claims for compensation under the ECHR. Nothing that I have seen in anything published about the agreements concluded so far, with Norway and the EU, suggests anything else.
The choice going forward, with the prospect of additional quota becoming available, is between allowing the new quota to be sold, or to render it unmarketable. To do the latter would not resolve the existing problems, but would at least stop compounding them. It would also preserve some freedom of manoeuvre for future governments in an independent Scotland.
Ewan G Kennedy
Kilmelford, Argyll, 14 January 2021


Sunday, 10 January 2021

Great news for the Environment!

Great news today! The Scottish Creel Fishermens Federation have won their case against Marine Scotland over the latter's refusal to run a proper scientific survey into the damaging effects of bottom dredging. In her judgment, published on Friday, Lady Poole has ruled that Marine Scotland failed to follow their own published guidelines when running the consultation that would have resulted in a controlled experiment over a designated area of seabed.

As so often in the past, Marine Scotland have failed in their basic duty to behave impartially in looking after the health of the environment. Essentially they decided to go along with the weight of responses received, many from outwith the area concerned, rather than to have regard to the content and the purpose of the proposal. Once again they have listened to the loudest voices, in this case the fleet of large, highly expensive ships that treat the seabed as their own property, rather than the quieter ones of creelers.
Many, myself included, predicted that Marine Scotland had gone seriously wrong in their handling of the consultation. I've already published the letter I sent to Fergus Ewing on 15 August and it gives me no joy that Marine Scotland persisted in defending a case that was obviously flawed, resulting in a delay that will amount to about a year by the time the various procedural matters have been finalised, enough time for an enormous amount of damage to be done to the seabed. Not to speak, of course, of the expense of both sides that the Scottish Government will now need to pay.
For a link to the full judgment, see here:

Thursday, 5 November 2020

The Right to Privacy


The image shows Gustav Magnar Witzoe, the owner of a large part of Scottish Sea Farms and thus indirectly the owner of several million salmon living in cages on the West Coast, although strangely they do not appear among the hundreds of images posted by him on his Instagram account, which has 118,000 followers. I am entirely free to publish it without fear, because it’s been published with his consent and there is no conceivable basis for any valid legal complaint, let alone court action.

Similarly, anyone posting a selfie online should be aware that if the image is shared by someone else, there is absolutely nothing that the poster can do about that. The very act of publishing is making something public, the clue is in the name.
This is topical, because this week the well known anti fish farm campaigner Don Staniford has received an extraordinary request from Mr Witzoe’s company to remove from his blog images of three individuals posted by themselves on sites including Linkedin, a site that publishes information, including photographs, of people in the business community and has nothing whatsoever to do with Scottish Sea Farms. Two of them are no longer employees.
The company has threatened to report Don to the “Information Commissioner’s Office”. When we last looked, the Commissioner, a nice fellow called Ken Macdonald, had his hands full handling complaints about Freedom of Information requests to local authorities and other public sector bodies and his statutory responsibilities did not extend to the activities of anti fish farm campaigners. It seems unlikely that he has decided to follow Police Scotland in becoming an unpaid back up act for aquaculture.
There has been a tendency recently for fish farm companies to claim rights that they simply do not have. I wrote a few months ago about their ridiculous quoting of a statute that was introduced to stop unauthorised raves on farm land in attempts to prevent activists taking photographs of diseased and dying fish. The lesson in this is that one should read the Act before waving it in someone’s face.
Data Protection legislation has also been used recently to threaten someone taking drone footage of the disgusting scenes when salmon are processed by thermolicing, a process whereby mature fish are pumped via plastic tubes into a bath of warm water in order to remove the sea lice that are literally eating them alive. This is a blatant attempt to suppress worried citizens doing what Marine Scotland, the Fish Health Inspectorate and SEPA should be doing on our behalf, but don’t.
So, what is the position regarding the taking and publication of images? What if a third party takes an image without a person’s consent and wishes to publish it?
Under Article 8 of the European Convention on Human Rights we DO have the right to protect our image, unless we have expressly or impliedly agreed to its being published. Here is an extract from the Guide published by the European Court:
“Right to one’s image and photographs; the publishing of photos, images, and articles
Regarding photographs, the Court has stated that a person’s image constitutes one of the chief attributes of his or her personality, as it reveals the person’s unique characteristics and distinguishes the person from his or her peers. The right to the protection of one’s image is thus one of the essential components of personal development (López Ribalda and Others v. Spain [GC], §§ 87-91 and the references cited therein). Although freedom of expression includes the publication of photographs, the Court has nonetheless found that the protection of the rights and reputation of others takes on particular importance in this area, as photographs may contain very personal or even intimate information about an individual or his or her family (Von Hannover v. Germany (no. 2) [GC], § 103). Even a neutral photograph accompanying a story portraying an individual in a negative light constitutes a serious intrusion into the private life of a person who does not seek publicity (Rodina v. Lat- via, § 131). The Court has articulated the key factors to consider when balancing the right to reputation under Article 8 and freedom of expression under Article 10 as follows: contribution to a debate of general interest; how well known is the person concerned and what is the subject of the report?; prior conduct of the person concerned; content, form and consequences of the publication; circumstances in which the photos were taken; and severity of the sanction imposed (ibid., §§ 108-113; Axel Springer AG v. Germany [GC], §§ 89-95; Couderc and Hachette Filipacchi Associés v. France [GC], §§ 90-93; Rodina v. Latvia, § 104).”
As usual with European law the statement is very principled and explains the reasons why an image is protected. It is clear that anything we publish ourselves isn’t, unless there is added a negative story. It’s also clear that an image taken from a distance far enough for individuals not to be recognisable, say the drone scene referred to above, would not give ground for action. In any event, such action would need to be taken by the subject of the photograph, not by his employer.
Just be careful, everyone, make sure faces aren’t identifiable and keep safe!

                                                             Don's Blog

Wednesday, 30 September 2020

The Mooring System at Carradale North



In many ways Storm Ellen failed to live up to her promise. Wind strengths along the inner West coast proved less strong than had been predicted and the only major casualty was the disastrous failure of the mooring system at Carradale North, which resulted in this massive installation of ten large cages coming adrift.
The initial statement, issued by MOWI that day, suggested that the anchors had become detached from the seabed, see here:
‘On August 20, 2020, Mowi’s salmon farm at Carradale North, consisting of 10 circular net pens containing 550,000 salmon (@~4.2kgs), shifted position after its seabed anchors became dislodged during Storm Ellen that has hit the UK and Ireland. The company’s priority at this time is to secure the fish cages in place until Storm Ellen subsides, and to safeguard staff, contractors and fish stock.
‘The company has informed Marine Scotland of the event. A final update will be provided after recovery is complete’.
For the anchors to have become dislodged was perhaps a reasonable deduction in the immediate aftermath of the event, but would have raised questions about the adequacy of the design. Since the arrival of the North Sea oil sector considerable research has gone into the design of anchors and systems for the most testing of conditions. This has resulted in enormous spin-off for other sectors, from shipping to leisure boating. There is no publicly available information about the type or size of the anchors in use at Carradale North, nor any relative specifications or calculations, but for anchors simply to fail would raise considerable doubts about system design.
It turned out that this information was simply wrong, according to the statement issued by MOWI on 26 August. I have omitted the parts irrelevant to the mooring system.
‘Mowi Scotland’s salmon farm at Carradale North, consisting of 10 circular net pens containing 550,700 salmon (@~4.2kgs), shifted its position after becoming detached from its seabed anchors during Storm Ellen and strong tides in Kilbrannan Sound on August 20th, 2020.
….
‘Following thorough inspection by dive teams, the root cause of the incident appears to be breakage of mooring ropes that attach to the main system seabed anchors. The farm was installed five years ago according to the Marine Scotland A Technical Standard for Scottish Finfish Aquaculture, and the infrastructure inspected three months ago. The rope type is marine grade, 4.8cm in diameter with a break strength of 89.5 ton – roughly twice the maximum strength required for its application (ranging from 33t to 51t). The rope has been sent to third-party testing facilities in Aberdeen, with further investigation to follow….’
It would appear from the technical standard referred to in the second statement that in order to instal their ten cages at North Carradale MOWI would have required to commission, in sequence, a full site survey, covering the seabed and including analysis of tidal flow directions, strengths and heights, then a design based on the that data, followed by ordering and installing equipment, consisting of anchors and associated chains and/or ropes.

This release was accompanied by the image below, which is copied with the caption added by MOWI.


On the assumption that MOWI’s photograph is authentic one is tempted to suggest that the person who tested the system three months earlier should have gone to Specsavers!
As anyone with the slightest experience will confirm, all mooring systems degrade from the moment they are placed in the sea. Traditionally they have almost universally been constructed of galvanised steel, with a heavy anchor or anchors connected to a section of heavy chain to absorb the heave of the waves and lighter gauge riser chain to the surface. The links abrade against each other, removing the galvanising and allowing the metal to rust where sufficient oxygen is present. For this reason seasonal moorings are sunk when out of use.
It seems that until recently the aquaculture industry used very similar systems. Because of the year round use one imagines that inspections and replacements of degraded gear would have been ongoing. This presumably explains why in recent years the industry has moved to the use of synthetic rope systems, as can be seen from the technical standard.
It seems that the most common materials in use are nylon and polypropylene. Each has different properties, but the principal causes of degradation in use are likely to be:
Chemical -
Nylon readily absorbs water, to between 1.5% and 3.5%, polypropylene is much less liable to.
Ultra violet light degradation may have an impact
Anti fouling treatments ditto, depending on the chemicals used
Physical -
Impact from vessels, flowing debris etc is possible, but more likely is the wearing down of fibres as they constantly move against each other inside the strands.
Conclusions
I have asked the Scottish Government under FOI to share what information they are holding and will publish the results in due course.
Given the statement by MOWI that the ropes would have been subject to around half of their designed breaking strain when they actually broke something has gone very seriously wrong. Logically there can only be two explanations, either the ropes supplied have been woefully inadequate and there was nothing wrong with the inspection, or they were fine when supplied, have since degraded and it hasn’t been noticed.

Friday, 18 September 2020

Regulation of Discharges from Wellboats

On Tuesday morning the Scottish Parliament's ECCLR, environmental, committee is being asked to approve a new government order transferring regulation of discharges from wellboats from Marine Scotland to SEPA. The stated reason is to simplify matters by reducing consents to just one.

In practice just now, wellboats are carrying on their activities basically unregulated, moving along the coast applying treatments ranging from dosing salmon with chemicals to subjecting them to hot water baths as a "kill or cure" way of ridding them of sea lice.
Mark Ruskell will be speaking at the committee and I've annexed some notes that I've prepared, as they should be of general interest.
Well Boat Discharge briefing Notes for Mark Ruskell
Introduction
I am a former solicitor and live beside Loch na Cille at the head of Loch Melfort, part of a loch system comprising in addition Loch Shuna and the Sounds of Shuna and Seil. I have long argued that the system deserves to be treated as a single sea loch, as it shows all the features, glacial cills, restricted tidal flushing etc. Despite this Marine Scotland and the planning system allow only Loch Melfort the protection afforded to a sea loch and as a result there are only two “farms” in our stretch, consented historically and small in current terms, Eilean Coltair CAR/L/1000197 and Kames Bay CAR/L/1000237. These belong to Kames Fish Farming Limited, whose base and the owner’s house are also here.
The wider sea loch contains another five, much larger “farms”, Ardmaddy CAR/L/1010472 (currently not in use), Port na Cro CAR/L/1000810, South West Shuna CAR/L/1025496, Bagh Dail nan Ceann North and South CAR/L/1004226 and Shuna Castle Bay CAR/L/1000801. Three more are considered in planning terms to impact on the area in terms of environmental management, Ardifuir CAR/L/1021927, Port nan Seannag (Lunga) CAR/L/1000811 and Bagh Lachlainn CAR/L/1025495. These are all operated by either Kames or MOWI. It’s difficult to tell, because the two companies operate in a loose partnership, the former promoting the “local family owned business” idea to obtain consents and then turning the site over to the latter.
Much of my life over the last ten years has been devoted to trying to limit the proven damage this massive overload continues to cause, without success so far.
Wellboat Regulation
Wellboats became an issue quite recently, when they started to appear in numbers. Mr Ruskell will of course know that the present regime consists of licences granted by Marine Scotland. The transfer to SEPA has been in the wind for some time and was promised within the “first 6 months of 2020” in response to my request (F0191380). The same response included:
“Will licences be issued on a site basis, or to individual wellboats/owners/charterers? Will these be CAR licences or licences under some new system? Please advise where a list of licences can be accessed online.
We confirm that when SEPA becomes the regulatory authority we envisage incorporating the discharge of wellboats into each sites existing CAR (Controlled Activities (Scotland) Regulations 2011) licence.
These will be available on our Public Register. SEPA is moving towards an online Public Register.”
Current Position
It can be seen from the Marine Scotland webpage
Marine Scotland Applicationsthat there are currently six or seven applications from companies trying to beat the deadline. Don Staniford’s update from 22 June confirms that consents will continue to be valid. Appendix A to the parliamentary briefing shows that there are currently 53. (The 2013 total is fascinating, 186!)
I have not seen the draft order, but Terry A’Hearn’s comment suggests that no changes of substance are proposed and the matter is being presented as a simplification with no consequences.
Suggested Concerns
I am very worried that the present system, to be carried over, allows for licences on a site by site basis. On the face of things this has the merit of simplicity. One would assume that the wellboat would arrive on site, carry out the necessary procedure, discharge the effluent immediately and then depart. In theory this would allow officials from SEPA to turn up and assess any remaining residues on the seabed for environmental effects. In practice that may not be what happens.
On the West coast I and other residents are now seeing wellboats that are massive in size, travelling considerable distances from site to site and carrying out various procedures. Individuals belonging to the numerous community bodies who make up the Coastal Communities Network observe movements on the Marine Traffic website and share information about this. My immediate neighbours here frequently see a substantial wellboat at Kames Bay, just a couple of miles from the head of the loch, discharging residues that must have come from treatments carried out at the some of the other large sites referenced in my introduction.
Any regulatory system must be based on the assumption that there will be operators who try to cheat, but the present system makes it just too easy. Of course, local residents have absolutely no way of knowing what chemicals or other waste material may be within those discharges, but the fact that they take place far from the sites they are licensed to raises concerns. A standard hydrolicer treatment should, in principle, yield only dirty water, the corpses of fish that haven’t survived and sea lice, alive and dead. But treatments are moving on and, for example, details of the toxins involving the new Benchmark procedure are being withheld. The response to my FOI continued:
“Feedback had been sought from the third party who confirmed that disclosure of information would cause substantial prejudice to their commercial interests. We recognise that Regulation 10(2)(b) requires SEPA to apply a presumption favour of disclosure. In the specific circumstances of this request, SEPA considers that the release of the correspondence and documentation would cause a substantial prejudice to the commercial undertaking and economic interest. SEPA therefore contends that the public interest in the release of the information is outweighed by the public interest in maintaining the exception under the terms of Regulation 10(5)(e) of the EIRs”
Possible solutions might be to require waste to be discharged at the particular site, but then a discharge far out in deep water might be better, or to attempt licensing of vessels rather than sites, but that would involve a totally new system.
In short, there are more issues here than are likely to be explored, let alone resolved, on 22 September.

Monday, 14 September 2020

Shetland and Orkney Independence

The other day the Daily Express ran a story entitled  “Sturgeon’s Nightmare” that the unwary might have thought referred to a massive outbreak of Coronavirus, but on closer inspection turned out to be about Orkney wanting to join Shetland in seeking independence. This followed reports that Shetland Islands Council had voted 18 to 2 to explore adopting a status similar to being a UK Crown Dependency. The leader of Orkney Council acknowledged, we were told, that his island would seek a similar solution. 


I hadn’t come across the author, Richard Percival, before and googled him. He turned out not to be the professor at Sheffield University, but a freelance fellow based in Southampton, who has at the age of twentyfour gathered a BA (Hons) in journalism and a journalism diploma, his specialisms including “Nightlife”. I’m sure there's a lot of the latter in the Northern Islands, if you know where to find it. I wouldn’t normally mention a journalist’s qualifications, but regarding something as intrinsically complicated as island politics a little depth of local knowledge would add credibility. This, of course, damns me too, so I will confine this piece to “chiels that winna ding”.


First, regarding the demographics. Each island has a population of about 23,000, so together they would scarcely be viable with total independence. Think specialist hospital treatments etc, currently all flown to the mainland. 


To get some idea of country sizes, the EU’s current twenty seven break down into a group of five biggies over 40 million, the next ten down to 7 million, five “Scotland sized” down to Croatia’s 4 million, then four smallies bordering Russia down to Estonia at 1.3 million and finally three tiddlers down to Malta, with just under 0.5 million. Orkney and Shetland combined would be one tenth of Malta. Remember that “too wee” jibe?


Second, oil, Scotland’s curse. Without it we’d have been free decades ago, Thatcher couldn’t have funded the unemployment and destruction of industry North and South; I could go on. Would it belong to an independent Northern Isles? In a word, No. There’s an authoritative article in the European Journal of International Law, accessible by the link below.



The author considers the position in the event of Shetland and/or Orkney deciding to secede from Scotland post independence or, more likely, to decide to belong to rUK. While not expressly discussed, the same logic applies to their linking up with, say, Norway.


International law runs on precedent and the  matter has already been settled. Islands get special treatment. They don’t get half the ocean between them and the next land, rather the choices are between six and twelve miles from the coast. The case of the Channel Islands went to arbitration, at which France argued for six miles and lost. The best that could be hoped for would be the same, twelve miles again. 


That all assumes that the good folk of Orkney and Shetland would trust a future rUK, quite possibly consisting simply of England, not doing another Thatcher with “their” oil.


Third, politics. As noted above, I don’t have local knowledge, so offer just some very basic facts. 


Orkney and Shetland each have 23,000 residents and together form one Westminster constituency, with 34,000 registered electors, roughly three quarters. In December 2019 two thirds of them voted and the results were:


Lib Dem 45%, SNP 34%, Con 10%, Lab 7%, Brexit 4%.


Despite suspicions that Shetlanders may be closer to the Vikings in sentiment than Orcadians both islands voted pretty much the same in the 2016 Holyrood elections. Each island supported the Lib Dems 67% against the SNP’s 23%, the others sharing 10% among them. It looks as if of the 20% that later left the Lib Dems half went to the SNP.


That looks a hard nut to crack, but it represents views based on the current situation and perhaps also on misapprehensions about oil. And 79/90% for pro EU parties! Faced with a stark choice of belonging to Scotland or to someone else, a post Brexit Little England might not be too appealing to those remaining Lib Dems. 


European Journal of International Lawhttp://www.ejil.org/pdfs/12/1/505.pdf


Wednesday, 9 September 2020

Suddenly it all seems relevant!

I was very lucky to study Jurisprudence for three years under Professor Sandy Anton, an international lawyer of terrifying intelligence, then to be sent off to study at the Hague Academy of International Law, as a result of which I am entitled, under that law, to describe myself as an “Attender” but not an “Alumnus”, having decided not to take the exam. Thereafter I was appointed to teach the subject, getting the vacancy left when John Smith went into politics. For the next thirteen years my working life was brightened up with twice weekly tutorial discussions and annual conferences hosted by the Association for Social and Legal Philosophy. I’m no expert, but have retained a lifelong interest and studied events over the decades since. The period runs from the United Kingdom’s entry into what became the EU to the current bùrach.

Those discussions often concerned the conflict between the English doctrine of the Sovereignty of the Westminster Parliament and the consequences of becoming part of an international club. For the benefit of anyone coming to this territory for the first time I will offer a quick trot over the course.
I described the doctrine as English because Scotland never developed such an absolutist theory at any time from first becoming a country to joining the Union. The King was the King of the Scots and ruled with their presumed consent, see, for example, the Declaration of Arbroath. By contrast English legal theory went down an absolutist path, which intensified when empire-building supplanted trade as the engine of economic growth.
In the late Victorian era of gunboat diplomacy this international thuggery, now termed Sovereignty, came to be expressed in legal terms by writers such as Albert V Dicey and that forms the basis for the constitutional position to this day. I nearly wrote “settlement”, but the matter has never been up for negotiation. As currently understood, the doctrine means that no Westminster Parliament can ever bind its successors, so in practical terms anything written in an Act is only valid until Parliament decides to change it. No window dressing, no “vow” by a group of leading cross party politicians can mean anything, it’s all up for grabs. It’s like playing cards with a fellow who has his pistol on the table.
When the Westminster Parliament enacts something, such as “The Scottish Parliament and the Scottish Government are a permanent part of the United Kingdom’s constitutional arrangements” this is legally, in terms of the United Kingdom “constitution” complete rubbish. That responsible people, such as Professor Tomkins, a senior legal academic moonlighting as a politician, were involved in promoting this sort of deception is beneath contempt. It was always clear that the so-called United Kingdom Supreme Court, in reality only a Westminster creation, would rule the way it has done recently.
So, that’s the domestic position, what’s the position in International Law? Forty or so years ago academics were very exercised at the apparent conflict between Westminster Sovereignty and EU law and expected to see disputes and litigations emerging. The issue centred on the fact that while almost all the other member states had written constitutions, often imposed by the Allies, expressly making national law subservient to international law, the UK didn’t. The reason why problems haven’t arisen does not mean that some magic solution was found; it’s simply down to the fact that both sides recognised the manifest benefits, both ways, of UK membership. During the most heated rhetoric of the Thatcher period this always remained the underlying reality.
That reality remains unchanged by Brexit. Even the neo-fascist fools who grabbed power last December no longer pretend that people will be better off. A huge price is to be paid, almost certainly by the poorest in society, for a trip into an English nationalist fantasy world, where people have blue passports that they can’t use and little else.
This week we have seen, certainly for the first time in my adult lifetime, a government minister openly and expressly stating that the United Kingdom intends to violate an international treaty and, to top that, a treaty negotiated, signed and approved by the politicians who are currently in power. The sheer enormity of this would have sent electric shocks through those academics at the conferences I mentioned. As Lord Kerr and Lady Macintosh and others were saying yesterday in the House of Lords, this puts the United Kingdom in the position of a rogue state.
But has the position in terms of International Law changed? Tragically I think not, but I’d be delighted to be proved wrong. Compliance with treaty obligations is still very much a matter of mutual recognition of self interest. There is no international super state police force. If a State breaks the rules others will react at levels rising from expressions of disapproval, through breaking off relations and so on. The damage done this week puts the United Kingdom, jurisprudentially, in the same place as North Korea and the world leader in these matters, the United States. The lesson is that rulers can get away with breaking the rules if either they don’t care about their people or they’re big enough. I hate to think which category the United Kingdom belongs to.
Over the remainder of this year we will see the consequences of the current insanity working through. It’s now virtually certain that there will be a “no-deal”. Specifically regarding Northern Ireland it’s likely that Westminster will not take steps to put in place the customs officials and checks required in order to respect the Withdrawal Agreement. There will then be a challenge to the Republic of Ireland as an EU member state to put up a hard border. That is no doubt the calculation of Johnson and friends, but is it really likely that they would do so? My guess is that they will decide to put up with a lot of smuggling in the short term to avoid a return to the Troubles, while mustering all forms of international pressure and support to bring the United Kingdom to heel. Regardless of who becomes President in November the Irish lobby in the States will be very active in this. And don’t forget that the Irish have the right in terms of the Withdrawal Agreement to a referendum on unity.