The Right Honourable, the Baroness Kennedy of the Shaws, QC, FRSA, HonFRSE is a very serious person not only in legal and academic circles, but also as an active politician and member of the Labour party. Lest you think that she is a party apparatchik, let it be recorded that she was the most rebellious Labour member of the House of Lords last year, rebelling against her party whip 33% of the time.
She gave an interview on Thursday 1st October on BBC Scotland’s morning news and current affairs programme, Good Morning Scotland and it made interesting listening, especially if you are a follower of both politics and negotiating.
First, some background: the Internal Markets Bill has recently passed through the House of Commons and is set to go to the UK’s second chamber, the House of Lords. It is a controversial bill because it breaks international law, as laid out in an agreement that was struck between the United Kingdom and the European Union. This agreement has since been lodged with the United Nations and is thus enshrined in international law. As Baroness Kennedy put it, “this is really serious”. She used other words like “shocking” (more than once), “cheat”, “appalling”, “rule breakers” and my personal favourite, “Trumpism” as in “to tear down the very things that have been built up since the end of the 2nd World War”.
She was not happy. She and her colleagues will vote against it in the House of Lords and, in case you think that this is mere party politics, Lord Keen, the UK government’s law officer in Scotland (a political appointment) actually resigned over the issue. Baroness Kennedy finished her interview saying, This is not Brexit, this is much more grievous. It’s about tearing up law…”.
The government’s excuse is that the provisions contained in its new bill will only be needed in the event of a failure to strike a deal with the EU, in other words it is leverage. Baroness Kennedy absolutely refuted that idea in her interview and made two interesting points in defence of her case.
- It’s not a good negotiating tactic. It demonstrates a willingness to cheat which, in turn, undermines the UK’s negotiating hand – not only in future negotiations with the EU, but in future negotiations with any other international body.
- People come to the UK courts looking for a fair trial. She maintained that our standing in the world was as a group of nations that respect the rule of law. Our judiciary, she maintained has a reputation second to none in this regard.
Apparently, last week, she attended a webinar of 400 international lawyers from around the world, all of whom were scandalised and outraged that the UK would go down this road. She went on to say, “It not only loses us our respect, it loses us our ‘soft power’”.
To me, this is a telling point. “Soft” power is less tangible and more difficult to recognise than “hard” power, but it is there and is a factor in your negotiations. We have identified four major sources of soft power, namely relationship, legitimacy, social and trust. In broad terms, the better the relationship, the more legitimate your claims to the moral high ground, the more socially acceptable your behaviour and the more trustworthy your reputation, the better are your chances you of striking a deal in your favour. Your reputation precedes you, as someone once put it.
And as Baroness Kennedy put it, “That’s gone down the swanee now”.