The Brexit Challenge Webinar

On Wednesday evening I watched a webinar hosted by Trinity College Dublin entitled “The Brexit Challenge for Ireland and the United Kingdom”, which proved to be utterly fascinating and highly informative. I hope that a recording will be posted online in due course, but in the meantime here are some brief notes on the main points discussed.

There was no main speaker from Scotland, but the event celebrated a recent book on Brexit with the same title and Professor Aileen McHarg, one of the editors, made a short contribution after the main talks.

The first speaker was Paul Gallagher QC, the Attorney General for Ireland, and thus the principal legal adviser to the Republic. His main points were that Brexit has what he described as of “sub-constitutional” significance, by which I think he meant the departure of the UK did not in itself breach the terms of the Irish Constitution and the Article 50 procedure was something already legislated for in the EU treaties. Despite that of course Brexit has enormous unwanted legal effects, almost none of which was envisaged on the British side, let alone provided for. This has placed the Republic under gigantic strain.

He was followed by Dame Brenda King QC, the Attorney General for Northern Ireland, who was constrained in what she could say because of the total political and sectarian split, so her address was somewhat formal and one had to read between the lines. This was made up for later by Professor Christopher McCrudden QC, who made a comment, see below.

The event became very interesting with the next speaker, Mick Antoniw, the Attorney General for Wales, who delivered a prerecorded talk. He did not share Dame Brenda’s reticence at all and spoke about the absolute disgust felt in Wales at the total absence of consultation by the UK negotiators with any of the devolved administrations, the use of Brexit as a device to remove powers from the Welsh Assembly and the fact that Wales has been deprived of most of the funding that previously came from the EU. He also explained how the Welsh have been working tirelessly to develop good working relations with the Republic in the hope of minimising the disaster that is unfolding.

Given that he, like the other two A-Gs, is technically an impartial adviser and that Wales, unlike Scotland and NI, voted to leave, one has to assume that for him to take such a political line would have been done with the approval of the Welsh administration. At times he sounded inches away from declaring full support for Welsh independence. I was left feeling sad that we don’t have an equivalent major legal government figure in Scotland doing the same.

Sir Jonathan Jones QC came next. He had been the Head of the UK Government Legal Services through the Cameron and May years and had resigned at the end of 2020, presumably because he could no longer stomach the disregard of the Johnson regime for both UK constitutional law and International law.

He said that while he could not reveal confidential information he was in fact pretty free to express his views as matters were all in the public domain anyway.

He started by reminding us that the document that the Cameron government sent to every house in the UK failed to mention the consequences for Ireland if the UK left the EU. He went on to say, if I heard correctly, that they had not commissioned any work on the legal consequences of a leave vote. That is so significant, that I would like to check from a transcript or recording; it simply beggars belief. What was 100% clear was his conviction that nobody in Downing Street in 2015/16 had a clue about those effects.

He then stressed that having torn up the May deal and cobbled up their own version, Johnson and Frost denied the UK Parliament of the chance of any meaningful discussion by insisting on forcing the whole thing through in one evening after barely allowing anyone who wanted to have time physically to read, let alone analyse it. My comment - such is the new reality of “taking back control” and “parliamentary sovereignty”.

He also made the point that, while the May administration had been hobbled by being dependent on the DUP, Johnson with his huge majority had no such limitation. While he did not say so in terms, it seems very likely that the extreme form of Brexit inflicted on these islands did not involve anything resembling a proper analysis of legal issues, economic consequences or costs and most important of all the social and political implications.

During questions Professor McCrudden didn't hold back. He emphasised the extremely subtle and nuanced nature of the Good Friday Agreement, that fact that it had worked well, in fact perhaps better than might have been predicted and that it now remains to be seen how much damage has been done. In particular the current escalation of sectarian violence suggests that Stormont may not remain possible for much longer. The reintroduction of direct rule would be a nightmare and a disaster socially and economically, absolutely the opposite of what the population wanted when they voted strongly to remain.

Professor McHarg made very brief reference to the consequences for Scottish independence in all this, but was rather guarded.

There was brief reference to whether or not triggering Article 16 could be done by Johnson and Frost as an executive act not requiring parliamentary approval, with the view that it could. Again not exactly “taking back control”.

To summarise all this, the blunt fact is that having rejected the May deal, which was messy but could have worked, Johnson has opted for a situation that is unsustainable and that should have been foreseen as such. My ghastly suspicion is that he, or more likely Frost, has woken up to that and that stimulating fights everywhere, with the EU and internally in NI, is an exercise in deflection that will have utterly dreadful consequences for all of us, presumably in the hope we’ll all think that “a bad boy done it and ran away”.

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