Wednesday 14 June 2017

Being Informed about Brexit #BIALL2017

The notes that follow arise out of the BIALL Conference 2017 and given the theme of the conference was 'Together or Apart? Effective ways of working'  I'm happy to share my notes! This has recently been updated to reflect the #BIALL2019 conference on Vable.

Being Informed about Brexit

The first plenary session - and Willi Steiner Memorial Lecture was entitled 'Informing the debate about Brexit', presented by David Allen Green. This is obviously a contentious topic as a whole but at least law librarians can claim to be well informed as to the arguments. After all, it is the legal chaos in which we are interested. As I have noted in the past information specialists are experts in spotting fake news. We have all the skills and expertise required to assist the general public and others who rely on us to get things right.

DAG was keen to emphasise that we are needed more than ever to sort fact from fiction, and that information comes in a variety of forms. He had done some research on Willi Steiner and said that expertise in international legal information was still required. We have access to a wealth of  legal information and we live in a significant point of time where everyone with access to the web can broadcast or publish to the world. Everyone can now do that and it is remarkable.

He drew parallels with the invention of the printing press which made it physically possible to circulate ideas. This meant a 'freedom of the press' 200 years before Fleet Street and the newspaper industry. 'Press' referred to the machine or process, so it still has direct relevance today. Sadly, although the event of any information revolution causes optimism, it can lead to counter reformation, prohibition of books, and other unpleasant population restrictions. As we have discovered, you can make information available, but it doesn't mean mean people will read, interpret or use it.

What does Brexit mean?

Brexit obviously means Brexit, if PM's are to believed. However from a legal point of view it is a difficult thing to define usefully. If you take it as an intended departure from the EU, you could argue that there have always been brexiteers. It's a different thing from eurosceptism. Secondly it is a departure from the EU as occasioned by a referendum. And yet it is something more than that. So it's all of the above in accordance with the mandate given. One day we are there and the next we are not. This is where the political debate comes in.

What is this EU that we are leaving?

The second question is about what it is precisely are we leaving? It is none of the following: The EU isn't Europe, nor a single economy, language nor culture. Neither is it a 'brute force'. However we do have a lot in common. Words. Laws. Information. This keeps us together and the entrance to the EU is regarded as the biggest peace time operation ever. It is also the most complex in terms of legal information. How many SIs in force!? We know how many have been made but ....

Brexit and impact on International Laws

The central problem the law makers and civil servants face is the separation of laws. It's not just copyright and data protection and discrete areas of substantive law but an entire network. The EU is driven by processes, shared standards and single market, and harmonisation is the key word. It isn't always top down imposition because agencies have worked together over time to ensure every one has a voice and everyone can abide by certain standards.

The main issue is access to a single market and trade. Participation is the word and whether it is possible to have an influence and impact on services if we cannot take part. How is this going to work? This Great Repeal bill he compared to the Holy Roman Empire. Neither Great, nor a Repeal, nor barely even a bill. We cannot focus just on UK law, to participate in foreign affairs we need to maintain an international outlook.

Article 50 was a decorative feature

Art 50, said DAG, was never intended for use. If it had have been, it would have been drafted differently. He contends that it is purely decorative, and written by a diplomat not a lawyer. It doesn't work and badly drafted. Having met some of the people who worked on the treaty, he is not popular for saying this, but it's probably the case. No one knows how it will end and as yet there is no public evidence that anyone knows what they are doing. It is shoddy.

He hopes that our civil service is working behind the scenes. However immediately before the referendum, the civil service was ordered not to prepare anything. There were two outcomes to the vote, and we appeared to be prepared for neither eventuality. Departments were in chaos and then Gina Miller started the court process. He said that this was an important demonstration of public access to law. But from a procedural point of view, it was a waste of time.

By this point the EU administration was already in place, and had clearly set out procedure, guidelines in an orderly fashion. TF50 was ready to go and was publishing documents immediately. A perfect exercise in legal information creation, with a phased approach. They have plans for EU funding and budgets which have been disrupted. He claims that the Brexit  bill isn't punishment it's all about order. Budgets must remain Brexit neutral so that planned projects can go ahead.

As far as information goes, the TF50 site is the main source, but he said that parliamentary committee papers are useful. Although sometimes difficult to find, it is a good source. There is the Institute of Government and Centre for EU Reform. Some other sources informs lawyers but it is nothing compared to what needs to be done.E.g. 22 bilateral deals.

No one expected Brexit

EU has made national politicians lazy. It is important that legal commentators are Brexit neutral. We can only inform the debate not influence. Law is not magic and has unintended consequences. What happens when there is no guide to public domain information. Everyone has to do it for themselves and we are currently in need of an army of Willi Steiners for legal information. We need to go through every single piece of information, for captured and analysing.

And finally 'freedom of the press'

Newspapers write what people want to read. Being controversial loses readers. When people read something are they changed or better informed? What is the role of newspapers? Opinion and punditry is all on twitter. The challenge now for newspapers is explaining things, and sadly there is little original news reporting because of lack of investment in time. Investigations are expensive and lengthy. Few papers have a legal journalist and legal illiteracy is high because of the lack of training. There are now some good legal bloggers around and with access to legal information being better...the public can go to quality sources and circumvent politically biased rubbish.

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