Letting the law and lawyers determine negotiations is a strategy for failure
We might not have a government of the lawyers, by the lawyers, for the lawyers, but we have something close, a government that doesn’t believe in its own authority and the authority of parliament
The ongoing negotiations over the Chagos Islands represent one of the more bizarre and confusing episodes in recent British foreign policy. We are supposed to believe that some islands over a thousand miles away belong to Mauritius simply because that nation says that's the case (and has got the usual collection of UN officials and anti-colonial trouble makers to agree). It seems that Sir Keir Starmer, along with his human rights lawyer friends, believe that because a politicised UN court tells Britain must give the islands to Mauritius this has to happen.
I wrote recently that one of the problems with the current UK government is that it is a government with the mindset of a lawyer:
“The most important fact about Keir Starmer, Britain’s prime minister, isn’t that his dad was a toolmaker. Nor is it that his mum was a nurse or that his first job was on a farm. The most important fact about Keir Starmer is that he is a lawyer, he is married to a lawyer and his friends are lawyers. Once you recognise this truth everything else that is wrong with Britain’s current government falls into place. And we should remember two things about lawyers, firstly they believe ‘process and procedure’ are paramount, and secondly lawyers think they should run everything.”
One of the things that lawyers believe they are good at is negotiation. My wife used to do acquisitions for a large international publishing company and took the view that the role of lawyers in negotiations was to write down the contract (and quite often even that was unnecessary). The idea that the world of negotiation is like some Netflix series about expensive lawyers doing deals couldn’t be further from the reality. As we’ve seen from Starmer and his pals over the Chagos Islands, lawyers are really poor negotiators. And there’s a reason for this being the case. Lawyers start and finish with the processes of law and arbitration rather than with the desired outcome.
Of course, Starmer’s negotiating capabilities are made even worse because he isn’t merely a lawyer, he’s a human rights lawyer (something that has almost nothing at all to do with humans or their rights). Because of this, Starmer believes unquestioningly in a set of rules that determine rights and that these are not negotiable. So when lawyers for Mauritius tell Starmer that the courts say that country has a ‘right’ to the sovereignty of the Chagos Islands, Sir Keir’s reaction is to accept this as fact. The negotiation is lost from day one.
We see the same problem arising with the proposals to amend the 2023 Northern Ireland Troubles Act. Again a court has told the government that the legislation is incompatible with human rights meaning that, shockingly, Gerry Adams the former IRA commander may be entitled to compensation because the wrong person signed his internment order in the 1970s. Understandably, people look at this with jaw-dropped incredulity. Yet, for a government of lawyers, the only response is to change the law because the Northern Ireland High Court has made a stupid and egregious interpretation of the 2023 Act. Thereby opening up a route to compensation for hundreds of former IRA members.
It is undoubtedly true that the legacy of Northern Ireland’s troubles continue to plague politics and government on the island of Ireland. But the current government has chosen to approach these issues on the basis of a narrow interpretation of the law by a provincial high court. Worse, they also propose to remove protection from former British soldiers whose service in Northern Ireland results in their pursuit by lawyers. Maybe the role of the new Attorney General as Gerry Adams lawyers back in the day has some influence here but, regardless of this conflict, the lawyer mindset results in a belief that the legacy of the troubles can be resolved through the courts. Except that we’ll see an old, ill soldier dragged to one court while another court gives the murderers and bombers who tried to kill that soldier compensation.
We often see arguments made (usually by lawyers or legal journalists) that the law ‘boxes in’ the government making the thing they want to do impossible. The problem is that even the lawyers have told these legal observers that this isn’t the case and, in simple terms, parliament is sovereign. So none of the courts discussed above (or indeed such courts as the European Court of Human Rights) can stop parliament from enacting legislation. Of course this means that Parliament has to say in the law it passes that the law to which the courts might refer does not apply in this case. It would, of course, be better if these enacted human rights laws were repealed and courts allowed to respond to questions of rights in line with common sense, historic precedence, fairness and justice.
Negotiation, whether it is over the legacy of Ireland’s troubles or the future of a small group of islands in the Indian Ocean, should be removed from lawyers and conducted on the basis of some essential principles and with the ending open. Instead of, as the lawyers told Starmer and his foreign secretary, David Lammy (who is, unsurprisingly, another lawyer), the negotiation being ‘how much’, it could have been conducted on the basis of UK interests and the concerns of those living on (or displaced from) the islands. Instead a narrow legal interpretation was applied meaning Britain is on the hook to pay out billions and annoy our most important ally by raising questions about their military base on Diego Garcia.
The same applies across our government (and indeed elsewhere). You need a lawyer to cross the Ts and dot the Is not to run the show. If you let the lawyers lead on making the deals, you will get results that are legally watertight but otherwise useless or, worse, actively counterproductive. A friend of mine used to advise at the Showman’s Guild where there were disputes over deals (yes, he was a lawyer). My friend’s job wasn’t to do the deal but to make sure that when two men shook hands over the sale of a pitch at Hull Fair, that sale was set down properly. And when there was a dispute, to help the Guild’s officers resolve it without creating any more legal problems.
I suspect that negotiation skills (what few I have were taught to me by trade unionists at NUPE) are not seen as a critical requirement for leadership in public services. Yet, as we have seen over the last decade, there’s a load of negotiation done by governments. Instead of building negotiating teams, what governments have done is just ring up some lawyers in the deluded belief that negotiation is something lawyers do. Starmer is talking about resetting the relationship with the EU, opening up our relationship with China, discussing trade deals with India and providing something called ‘climate leadership’. All this (even if you don’t agree with it) is very ambitious and would result in a very changed role for Britain. Yet Starmer seems unable to take a strong position on the small matter of some Indian Ocean islands because he can’t seem to get beyond ‘we have to do this because the lawyers say we have to do this’. There is little hope that Starmer’s ambitious ‘mission’ around Britain and the world will result in much more than the country giving stuff up for little return, settling for agreements that serve us poorly, and providing the vultures of human rights law with fresh carcasses of idiocy to feed upon.
If you want to reset the relationship with the EU then set out what that means in political and economic terms. Does the Prime Minister’s allowing human rights lawyers to railroad him into a dreadful deal over some tiny islands bode well in any discussions with the EU? A trade deal with India would be great but can we be confident that Starmer isn’t going to be led into a cul-de-sac of confusion by his administration's obsession with legal niceties? Pressure over the historic legacy of slavery will need careful negotiation but can we really anticipate an equitable outcome when the prime minister lets the lawyers back him into a corner over the obviously stupid idea of compensating Gerry Adams for us locking the old bearded terrorist up to stop him and his pals blowing everyone up?
We might not have a government of the lawyers, by the lawyers, for the lawyers, but we have something close, a government that doesn’t believe in its own authority and the authority of a parliament where it commands a massive majority. Instead of using that majority to put the legal fussbuckets and human rights lawyers back in their box, Starmer will use it to force through what the lawyers tell him to do.