Tuesday, 2 March 2021

Why Britain needs a Logan Act

History will not be kind to the generation of politicians that have spent the last three years negotiating Britain’s departure from the European Union (EU). They have failed to find a political consensus at home or present a coherent Brexit strategy abroad. In stark contrast to the European Commission which has successfully managed the difficult task of maintaining unity amongst twenty-seven individual member states, two successive prime ministers have now struggled and failed to maintain party discipline or keep ministerial colleagues onside.

Recent reports that Philip Hammond, the former Chancellor of the Exchequer, led a group of ‘rebel’ Conservative parliamentarians to open a backchannel to EU Brexit negotiators has already added further pressure to the already fragile premiership of Boris Johnson. In a rare and quick rebuttal, the new prime minister called on EU leaders not to listen to ‘the very wrong messages’ from parliamentarians who want to stop Brexit.

The problem is that Mr Hammond is not alone. Over the last three years there has been a consistent carousel of British parliamentarians visiting Brussels and holding meetings with EU leaders in the hope of influencing the Brexit talks. Each of them shares a common view that they alone speak for the British public and it is their view on Brexit which should be considered above all others. 

There has been no shortage of private opinions and public advice given directly to the EU and its leaders throughout the duration of the United Kingdom (UK) negotiating a deal for its withdrawal. Nowhere has this been more evident than the actions of Tony Blair, a former British Prime Minister,  holding court in Paris where it is said that he regularly briefs Emmanuel Macron, the French President, on the best path towards ‘a second EU referendum and the UK voting to remain’. Another extraordinary example includes Nigel Farage, leader of the Brexit Party, urging fellow Eurosceptic leaders (including Matteo Salvini, the Italian Deputy Prime Minister, and Viktor Orbán, the Hungarian Prime Minister) to block an extension to Article 50 that the then British prime minister was trying to negotiate in March.

This whirlwind of contradictory opinions makes it hard for even the most sympathetic of European leaders to take the UK’s negotiating position seriously, particularly given that Westminster remains in deadlock, the government of the day is without a working parliamentary majority, and Boris Johnson has decided to prorogue parliament in the hopes of preventing parliamentarians from frustrating the UK’s exit without a deal.

Britain’s current predicament, the ensuing diplomatic free-for-all, and continued confusion it has created…raises a broader and more serious question: who has a right to speak and negotiate on behalf of a sovereign nation?

Undoubtedly, the blame for the UK’s disadvantaged position in the Brexit negotiations can be laid at the feet of the previous two prime ministers: David Cameron who ensured there was no preparation in the event of a leave result and then promptly resigned, despite assuring the public he would stay no matter the outcome; and Theresa May who triggered Article 50 without a coherent negotiating strategy, called an early election that destroyed her parliamentary majority, and stubbornly resisted a cross-party agreement until the eleventh hour.

Britain’s current predicament, the ensuing diplomatic free-for-all, and continued confusion it has created both at home and abroad, raises a broader and more serious question: who has a right to speak and negotiate on behalf of a sovereign nation?

After all, the Ministerial Code states that when UK ministers hold meetings overseas with ministers or officials from another government with the aim to discuss their ministerial brief, they must ensure a private secretary, or a UK embassy official is present and that the Foreign Office is notified. This rule is designed to deter ministers from undertaking unofficial meetings, ensures that the British government is aware of all representations that are made by ministers on its behalf, and that a record is maintained of all diplomatic engagement with foreign governments. Much to her dismay, Priti Patel, the current Home Secretary and former Secretary for International Development, found out the consequences of breaking this rule when she was forced to resign from government in November 2017 when it came to light that she had secretly met with Israeli ministers.

Parliamentarians and private citizens on the other hand are not required to officially or publicly declare their meetings and private discussions with foreign governments and therein lies much of the current problem. Aside from the colossal task of negotiating a smooth exit from the EU, there are countless foreign policy crises involving British interests which require sensitive diplomacy and a coherent strategy. If this current ambiguity around private negotiations remains unresolved, these decisions will also face the risk of being up-ended or unduly influenced by the interventions of actors outside of the government’s control.

The United States (US) has long-recognised the diplomatic chaos that can occur as a result of private citizens conducting unauthorised negotiations with foreign governments it is in direct dispute with, as well as the need for a clear distinction when it comes to who speaks on the country’s behalf. In response to several unauthorised negotiations with the French government at the height of the Quasi-War, John Adams, the then US President, signed the Logan Act in 1799. Under the Logan Act unauthorised negotiations with a foreign government which are found to have undermined the US government’s negotiating position is a federal crime and incurs a penalty of US$5,000. While rarely used and hotly contested, the Logan Act remains a useful deterrent against diplomatic backchannels that may undermine America’s key foreign policy interests.

A country’s foreign policy cannot be crafted by 650 individual parliamentarians, let alone by private citizens who are not subject to public scrutiny.

As the Brexit negotiations enter the endgame and UK policymakers begin to take stock of the diplomatic free-for-all of the last three years, serious consideration should be given to the need for some form of a British Logan Act. The introduction of such an act would designate clearly who speaks on behalf of the British state and in what capacity they are able to hold official negotiations with foreign governments, and should also include a mechanism for holding private citizens to account if they have conducted unauthorised negotiations that are proven to have undermined the UK.

To ensure that a British Logan Act is not used by ministers as a tool to silence criticism or to prevent the presentation of alternative approaches to foreign policy, any legislation should enshrine the rights of shadow ministers and members of parliament who serve on international affairs related select committees to meet with officials from foreign governments. The House of Commons Foreign Affairs Select Committee would be tasked with closely monitoring the use of this new legislation, particularly with regards to the impact it may have on the work of members of parliament.

A country’s foreign policy cannot be crafted by 650 individual parliamentarians, let alone by private citizens who are not subject to public scrutiny. When ministers leave office they are prohibited from lobbying the government for two years; however, no such ban applies to them lobbying foreign governments. While parliamentarians have a long established and legitimate role of scrutinising the foreign policies of the government of the day and ensuring that ministers are held to account, one would be hard-pressed to explain why former ministers outside of elected office or a position in a multinational institution should be engaged in British foreign affairs.

In the wake of the crisis of public faith in the integrity of UK ministers and parliamentarians it is clear that even those who may have sympathised with specific actions that have frustrated the government’s Brexit negotiating strategy, still yearn for stricter handling of how those representing the UK abroad conduct themselves. The Brexit debate has crafted deep fault lines in the public discourse surrounding what kind of message we should send to the EU, and arguably the rest of the world. However, a common theme throughout both sides is the need for greater transparency in who is influencing elected representatives, and the negotiations they enter into.

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