Instrumentality (in architecture)

A repeated message in current architectural writing is to warn against ‘means-end thinking’, or ‘instrumental thinking’. For example, we might decide that we want to live in a home that has a constant temperature of 22 degrees centigrade, or that ‘has a view to the south-east’, and with these ends in mind, we go about arranging them; we find the means, whatever those are. And this—it’s said—is a bad way of doing things. The warning extends to architectural types; to think of whole buildings as objects serving our purposes—a research facility, a learning resource centre, a shopping mall—is also to practice ‘means-end thinking’. The cost—it’s said—is twofold; the resulting construction will not be worthy of its inhabitants, and worse, we risk “spoliation” of the environment. Instead, architects should aim at a simpler, more direct relationship with places, with people and with customs of inhabitation. Not housing, schools, factories, but dwellings, and gathering places of the community. Not needs met, but people addressed—so to speak—‘in their fullest being’ (my phrasing). Here’s an example of the message, from Dalibor Vesely:

“Architecture has probably never abandoned completely its humanistic role, though in modern times this role has mostly been improvised. That approach may no longer suffice in a changing world increasingly dominated by instrumentally oriented expectations. To preserve its primary identity and humanistic role in the future, architecture must establish credentials on the same level of intelligibility as instrumental thinking, while at the same time it must integrate and subordinate the instrumental knowledge and the technical potential of human beings to their praxis. This is, in essence, my aim in broad outline …” (Vesely, ‘Architecture in an Age of Divided Representation’ (2004), p. 5)

We got here, as I hinted at before, via Heidegger. How? Heidegger’s core project is to provide an alternative to the traditions of metaphysics. Most people—and, you’ll be reassured to learn, four out of five living philosophy specialists, by their own self-reports—believe that there is a world of things with independent existence outside of the mind that experiences and recognises these things: this is realism; the world is real. Most people, but not all people. There is an alternate view, which is that the things of experience are things of the mind, and we should be sceptical of the existence of—or at least of the appearance of—what some might take to be a mind-independent world. There are several variations of this line of thinking in philosophy, sometimes termed idealism, or anti-realism, depending on the version, and all of them tending to have a sophistication which I can’t tackle here.

And there are complications. We also like to predicate of objects that we encounter in experience; for example, we say ‘I see the roof is shiny’ or ‘you’ll find the path is bumpy’ in the confidence that many things are shiny or bumpy: that those things are alike in those ways; they have properties. There is then a range of views about what properties are. When we predicate, do we refer to something somehow in the object, to something mental that groups objects together, or do we invoke something we might call a universal; something external to the mind, and whose location cannot be given?

Heidegger’s approach is to suggest that there is a difference between things existing—mere existence, we might say—and those same things having a certain graspable or connectable kind of being. Things—for Heidegger—have this special kind of being only when experienced by us with purposive engagement; he collectively terms such things ‘equipment’ and describes the special kind of being as ‘readiness-to-hand’ (zuhandenheit). As examples, Heidegger determinedly points to everyday objects, when we use a hammer—when we engage purposively with a hammer—the hammer is ‘equipment’ and has zuhandenheit. As a metaphysical position, this is not realism—in this picture the existence of things is in a certain way conditional on our experiencing them—but it is not idealism either; things retain a mind-independent mere existence. To put it in Heidegger’s terms, beyond our engagement with them, things continue to have ‘presence-at-hand’ (vorhandenheit) as things ‘in’ the world (as the desk is ‘in’ the room, and the room is ‘in’ the university). We may still relate to such things that are only ‘present-at-hand’, but our doing so is a sort of reduction; we come to consider such things, in our detachment, as objects, and ourselves as subjects. When we treat things as ‘present-at-hand’—as only objects of our curiosity—we achieve for ourselves only a less authentic way of being; full authenticity is only found in engagement, in connection with the ‘ready-at-hand’.

Which is all fine. In a way. The philosopher Rudolf Carnap, in a sharply critical piece of 1932 (‘The Elimination of Metaphysics Through Logical Analysis of Language’), argues for much tighter control of expression in philosophical writing than he sees in Heidegger (whom he names). For Carnap, a term such as ‘being’, in philosophical writing at least, must be understood only through its role as an ‘existence quantifier’; a thing x is (or is not)—this is the quantifier—and has property F (or does not have it). Existence is not to be predicated of something; there are not kinds of existence, or kinds of being. My intent is not to try to come to a judgement on this. For my purposes, what is more interesting in Carnap’s essay is what he follows with:

“The metaphysician believes that he travels in territory in which truth and falsehood are at stake. In reality, however, he has not asserted anything, but only expressed something, like an artist. [But] Lyrical poets … do not try to refute in their poem the statements in a poem by some other lyrical poet.”

And I think the implication of egotism in Heidegger is right. Heidegger takes himself to be getting at something of crucial importance. His metaphysical picture is to give a foundation to sciences: “basic concepts determine the way in which we get an understanding beforehand of the area of subject-matter underlying all the objects a science takes as its theme, and all positive investigation is guided by this understanding”. Indeed, his metaphysics is meant to overturn wrong thinking generally; an incredible ambition. In a jarring passage in Being and Time he writes (my emphasis):

“It would be unintelligible for Being-in-the-world to remain totally veiled from view, especially since Dasein has at its disposal an understanding of its own Being, no matter how indefinitely this understanding may function. But no sooner was the ‘phenomenon of knowing the world’ grasped than it got interpreted in a ‘superficial’, formal manner. The evidence for this is the procedure (still customary today) of setting up knowing as a ‘relation between subject and Object’—a procedure in which there lurks as much ‘truth’ as vacuity. But subject and Object do not coincide with Dasein and the world.”

The construction “no sooner was … than it got interpreted” (admittedly here in translation) is surprisingly flat footed in the context of the—mostly—spare and measured aesthetic of Heidegger’s prose; I think it reveals a competitive motivation to his project. A big mistake has been made, Heidegger seems to say; it must not only be commented on, it must be reversed.

And so we get to building. There is also wrong thinking—Heidegger comes to say after an interval that includes a world war and the rise and fall of fascism in Germany—in the way which we build. And there is a better way to build; it can be done, he says:

“Let us think for a while of a farmhouse in the Black Forest, which was built some two hundred years ago by the dwelling of peasants. Here the self-sufficiency of the power to let earth and heaven, divinities and mortals enter in simple oneness into things, ordered the house. It placed the farm on the wind-sheltered mountain slope looking south, among the meadows close to the spring. It gave it the wide overhanging shingle roof whose proper slope bears up under the burden of snow, and which, reaching deep down, shields the chambers against the storms of the long winter nights. It did not forget the altar corner behind the community table; it made room in its chamber for the hallowed places of childbed and the “tree of the dead”—for that is what they call a coffin there: the Totenbaum—and in this way it designed for the different generations under one roof the character of their journey through time. A craft which, itself sprung from dwelling, still uses its tools and frames as things, built the farmhouse.”

By ‘dwelling’ and ‘entering in simple oneness into things’ Heidegger intends his own metaphysic of zuhandenheit: purposive engagement, craft; not our habitual subject-object, or means-end thinking. We may doubt the accuracy of Heidegger’s description; it seems touristic, we may say. What are these houses really like? What has been left out? But it’s the phrase “by the dwelling of peasants” that strikes. Are these real people? Who were they? How does he know of them? What does he know of them? What reports do we have of their thinking? Is the house itself taken to be evidence of that? If not, then what is?

Let’s say that such a house, either as Heidegger describes it, or as we might find one, is evidence of the thinking—of the way of being, to put it in Heidegger’s terms—of its builders. If this is right, then it seems that to do as they did will be to be as they were, at least to a degree. Yet to do as they did asks us to take note of features of the house; these gables, those windows, those beams, etc. But which features are the correct ones to take note of? Are we sure that none of what we see was put into place by means-end thinking? The real history of Black Forest houses suggests that earlier examples were built with living rooms facing the hillside, and not facing out, over the valley, as we might naturally expect. At some time, a switch was made and later examples do have valley-facing living rooms. But why was this done? Can we be sure that no Black Forest farmers simply had the thought that it would be nice to look out at the valley and asked themselves what would have to happen to bring that about? I suggest that we cannot. (And, if this is what happened, I can see no way to respectably denigrate the motivation of those people: if it seemed good to them to have that end in mind, in a very similar way to how it might seem good to us to have it, then all power to them.)

Heidegger, of course, presents his example and then immediately disavows it:

“Our reference to the Black Forest farm in no way means that we should or could go back to building such houses; rather, it illustrates by a dwelling that has been, how it was able to build.”

So what should we build? We stand outside the craft tradition attributed to the Black Forest farmers. What is our own craft tradition supposed to consist of? We will know, Heidegger suggests, if we adopt the metaphysic of zuhandenheit. But note that the farmhouse—Heidegger’s example—now has no real role to play here. We can understand the hammer easily enough; the farmhouse is a much more complex affair. It is probably unsafe to assume that any of its features will guide us; we are instead reliant on first principles: Heidegger’s metaphysics, if we choose to go that way. Some architectural writers seem to work back from ‘Building, Dwelling, Thinking’—finding the picture there attractive—to some of Heidegger’s other writing, coming to support his normative demand—i.e. we should reduce our tendency to means-end thinking—assigning that demand extra weight ‘because Heidegger’ (i.e. it comes from authority) and only perhaps as a last step internalising a Heideggerian metaphysics. It might be better to work forwards: is Heidegger’s metaphysics convincing to you (is it better than alternatives; is it worse, even, than anything; is it—as Carnap seems to think—somewhere between psychology and fiction); if it is convincing, does it give any weight at all to Heidegger’s normative demand as applied generally, and if so, what does this mean for building specifically? If you find his metaphysics unconvincing (or just of no moral consequence), it is still open to you, as a designer, to pursue something we could call a ‘mindfulness approach’, or even a ‘psychology of Heidegger’. In this, we would pay careful attention to things of the world on the grounds that (occasional) simple, direct engagement with things of the world is a good, happy and productive thing. But contra Heidegger, we needn’t think that our mindfulness signifies any great truth. Heidegger objects:

“… this characteristic [of zuhandenheit] is not to be understood as merely a way of taking [things], as if we were talking such ‘aspects’ into the ‘entities’ which we proximally encounter, or as if some world-stuff which is proximally present-at-hand in itself were ‘given subjective colouring’ …”

We are not to give things subjective colouring, he says, except that we can; this choice is open to us.

And we can go further, again without internalising any particular metaphysics; we can agree that means-end thinking is often unsatisfactory, and sometimes destructive. Here, though, I think much more caution is needed. We do not live and work in a world made only by us, or by those near to us; we live in enormous societies with many technical specialisms. Some of these (many of them, even) apply to building. For example, someone has researched the role of radon gas in health, and found out that it collects in basements, and can be mitigated in a certain way; it is very hard to see the ‘means-end thinking’ that has been done here as anything other than beneficial. Similarly, someone has researched the performance of materials as applied to structures, or to fire resistance, with lessons for the way we build. Beyond individual buildings, someone has researched the effects of certain approaches to town planning, to transport planning, also with lessons for the way we build. Even as we retain traditions—if we retain them—we may choose to modify them: rationally, instrumentally. Or we may choose to abandon them: again, rationally, instrumentally. It is a big stretch to call into question or demote  all ‘means-end thinking’ (and still more of a stretch to insist that we all pay serious attention to the phenomenologically-grounded world view of one twentieth century writer): it surely depends on the means, and on the end.

(Cross-posted from my architecture and planning blog: groupbuilding.net)

What He Said

Blogging identity Will Davies gets in the NYT:

One way to understand the rise of reactionary populism today is as the revenge of sovereignty on government.

AFOE back in March 2017:

Liberalism, very broadly defined, likes to see the state as a neutral force, hanging “above the parties” as the Germans say. Conservatism and socialism both see it as a force for universal good, differently defined. They all, however, believe that it is different from partisan politics. This does not mean that it is apolitical, just that it is different. Parties and interest groups come and go, but the state endures, and at least claims to serve the public good. One way to look at this is as a depoliticisation of the state. Rather than being defined by opposition to an enemy, it is defined by the inclusion of its citizens.

Carl Schmitt argued that the fundamental political act was to define friends and enemies. He is an example of a long-running counter-tradition in Western political thought that fears this depoliticisation and wishes for a partisan state. Populists demand that the government takes sides among its citizens, that it acts in an explicitly partisan manner. They want to feel that the state is on their side, not because it serves the public good, but because they personally get took care of. Following any particular method obstructs the state in doing this, as it requires that the state acts in accordance with rules…

In Space No-One Can Hear You Trump: Brexit, GPS, and the Iran Deal

If you’d skipped the news during 2016 you might wonder what this “Brexit” actually is, when the British, French, and German governments are perfectly aligned on crucial political issues like the future relationship with Iran. No, really.
Here, for example, is the three powers’ joint note issued after Trump announced the US was pulling out.

It is with regret and concern that we, the Leaders of France, Germany and the United Kingdom take note of President Trump’s decision to withdraw the United States of America from the Joint Comprehensive Plan of Action.

Together, we emphasise our continuing commitment to the JCPoA. This agreement remains important for our shared security. We recall that the JCPoA was unanimously endorsed by the UN Security Council in resolution 2231. This resolution remains the binding international legal framework for the resolution of the dispute about the Iranian nuclear programme. We urge all sides to remain committed to its full implementation and to act in a spirit of responsibility…

Here’s the No.10 Downing Street readout of Theresa May’s conversation with President Rouhani:

The Prime Minister reiterated the UK’s position that we and our European partners remain firmly committed to ensuring the Iran nuclear deal is upheld. She said it is in both the UK and Iran’s national security interests to maintain the deal…Both leaders agreed the importance of continued dialogue between the two countries, and looked forward to the meeting of UK, German, French and Iranian foreign ministers in Brussels on Tuesday where they will be joined by the EU’s foreign affairs High Representative Federica Mogherini to discuss the Iran nuclear deal and next steps

It’s as if none of it ever happened. But at the same time, a weird subplot of Brexit has developed where the two parties are accusing each other of being a menace to their security and the UK is plotting to launch £3bn worth of space hardware on its own. The combination of the two is highly revealing.

So the European Union decided back in 2004 to build its own satellite navigation and timing system, Galileo, as a competitor to the US Department of Defense’s GPS and Russia’s GLONASS. In the meantime China has also launched a (pretty bare-bones) system, Beidou. British Eurosceptics didn’t like it for the usual reasons of the time, for fear that it might somehow harm the special relationship. Quietly, though, the Ministry of Defence was more enthusiastic. Since 1991, the enormous boon of reliable precision navigation and timing for all kinds of purposes had become obvious, and so had the horrible possibility of losing it.

As early as 2003, the Russian manufacturer Aviakonvertsiya was marketing GPS jamming devices and Iraq used a few in the war of that year. Since then, the technology has become democratised to the point where lorry drivers carry jammers in order to subvert their bosses’ fleet-management tracking systems, sometimes with hilarious results, as when a London bank discovered that its GPS-backed time server went haywire every day at the same time as a delivery truck parked up across the street, and sometimes with less hilarious ones, as when aircraft using GPS for approach guidance got jammed by someone on a motorway near the airport. As with many of the great technologies of the information revolution, GPS was designed – back in 1978 – to work in an environment either of trust, or at least of electronic scarcity. A major argument for Galileo is that it is designed to be much more robust to jamming and spoofing.

Of course, another way to lose it would be if the US decided to cut it off. The implicit suspicion was what bothered the sceptics, but on the other hand, worrying about scenarios is what you pay a general staff for. And the UK also thought it had a good chance of getting a lot of workshare from Galileo. The project went ahead with the British paying about 15 per cent of the bill and getting rather more than that of the contracts – minor things like designing the radio receivers, developing the cryptography intended to protect it against spoofing, building the satellites themselves, and managing mission control.

Now everything is terrible. The European Commission is saying that the UK is a dangerous security risk as a third power, even though there are third party partners in Galileo and in any case it’s literally being manufactured in Stevenage. Of course, French, German, and Italian aerospace would dearly love the contracts, and all the stops are out on the Brussels lobbying game. Airbus has already promised to move mission control. The British are threatening to ban the export of the cryptographic technology involved and refuse people security clearances. And most astonishingly of all, they are seriously considering going on with the project unilaterally!

Part of the story here is the atmosphere of Brexit, a political fifth season when almost anything might happen as long as it’s weird. The Treasury hates technology projects, space, capital expenditure, and unilateral defence procurement, but astonishingly its righteous sentence has been suspended. It is true that there is a certain kind of Brexiter who loves a big engineering project, but I think there is a stronger explanation available.

That is: the elite has begun to hoist in the reality of Trump. We can see this in the synchronised diplomacy towards Iran. We can see it in, for example, the exchanges in the Commons on the 9th of May. Shadow Foreign Secretary Emily Thornberry says:

what yesterday’s announcement confirmed is that as long as Donald Trump remains president we must get used to a world without American leadership

And Boris Johnson does not exactly disagree. It wasn’t that long ago that saying anything like that – even, like Johnson, omitting to condemn it – would mark you as a non-serious person. Disgraced former defence secretary Michael Fallon did try to push back, leading to this priceless moment of Gammon Drama:

Johnson says Fallon never expressed that view when he was in government.

More seriously, we can also see it – three billion pounds’ worth – in the Galileo contingency planning. It was possible to imagine, a few years ago, that the Bush presidency had been something in the nature of an accident. The Americans had got it wrong, but now they had elected someone normal and life could go on. But then it happened all over again. If someone suggested it to him, who can say that Trump wouldn’t order the USAF 50th Space Wing at Schriever AFB, Colorado to shut down GPS, or try to send all the billion or so users of the service outside the US a bill?

After all, if you believe in the US as a provider of global public goods and leader of economic and political integration, GPS is surely Exhibit A. President Reagan opened it to public use as a response to the Soviet shooting-down of a Korean airliner, an example of American leadership that would both shame and terrify the commies and also keep the airways safe for world trade. This is, physically, the stuff they’re always going on about!

The tragedy of the Brexiters, among other things, is that they finally got their wish of backing out of European integration the year the US backed out of globalisation.

AFOE reads French cybersecurity policy so you don’t have to

I have finally read the French government cybersecurity paper from here! (Direct link to the reference document.)

The thing that stands out to me, first of all, is that an important difference has emerged between France and the UK (and its allies) quite recently. The authors of the French paper consider a hard institutional distinction between the defensive, infosec/information assurance mission and the offensive, ELINT/cyberwarfare one to be not just advisable but a matter of principle. They see this as important for the security mission’s credibility and as a check-and-balance on the power of the offensive mission. With this, they set themselves apart from the UK and the USA. Since the early 2000s, the UK has rolled both missions into one at GCHQ. The USA took longer to do this and actually only finished it after the Snowden affair.

The irony here is that the UK practised the strict separation of information security and intelligence-gathering through the Second World War and the Cold War, with the divide between the agency known variously as LCSA, LCSG, and CESG on the one hand, and GCHQ on the other. I had the impression that we hadn’t done so badly? But the French have ended up by creating a distinct security-focused agency, ANSSI, replicating in part the structure we abandoned.

An interesting point the paper raises, though, is that the separation of missions requires that they must be coordinated in a broader strategy, which must be set at the political level. In fact, a strong argument for this separation is precisely that the politicians will need to control the spooks.

Separation of powers is a theme throughout the document. The authors define four missions: protection, military operations, intelligence-gathering, and judicial investigation. These are confided in different institutions. ANSSI, which belongs to the prime minister’s defence and security secretariat and therefore eventually reports to the National Assembly, is in charge of protection, including recovery. It also supports the intelligence services, which belong to the president, in their task, which is defined as being mostly about attack attribution. Investigation with a view to prosecution belongs to the judges and the police. Warlike operations are the military’s thing and therefore the president’s responsibility.

As for the point about coordination, the paper also describes a command structure including a top level committee with both the presidency and the ministries, responsible for setting policy, and a permanent operational command staffed by ANSSI and supported by their operations centre. Interestingly, the civilian and prime ministerial power seems to have gained very great influence compared to either the military/intelligence or presidential power, especially as ANSSI is also responsible for technical advice to the military cyber command, even for their own systems.

On international issues, the paper is keen on offering security assistance as a form of diplomatic soft power, probably a reason to keep the defensive and offensive missions separated. It is also very keen to internationalise the whole issue. The paper is quite clear that something bad enough could be an act of war, but it aims to make this match the UN Charter. Three levels of provocation are defined – below the level needed for Article 2(4), above it, and enough to invoke Article 51.

It’s worth pointing out that the paper is very, very much opposed to any kind of “hack back”. In fact it explicitly compares anyone doing so with mercenaries from a legal point of view.

On specific proposals, the paper likes product liability for software. It wants to force end-of-life products or abandonware to be released in open source. It is also very keen on open source for sovereignty, if you will.

I find very little here to disagree with.

Meeting the New Year

The Project for a Post-American Century meets an international system with Chinese characteristics.

There’s something in this Evan Osnos article in The New Yorker for nearly everyone:

[Trump] announced his intention to withdraw the U.S. from the Paris Agreement on climate change and from UNESCO, and he abandoned United Nations talks on migration. He has said that he might renege on the Iran nuclear deal, a free-trade agreement with South Korea, and NAFTA. His proposal for the 2018 budget would cut foreign assistance by forty-two per cent, or $11.5 billion, and it reduces American funding for development projects, such as those financed by the World Bank.

China’s approach is more ambitious. In recent years, it has taken steps to accrue national power on a scale that no country has attempted since the Cold War, by increasing its investments in the types of assets that established American authority in the previous century: foreign aid, overseas security, foreign influence, and the most advanced new technologies, such as artificial intelligence. It has become one of the leading contributors to the U.N.’s budget and to its peacekeeping force, and it has joined talks to address global problems such as terrorism, piracy, and nuclear proliferation.

Some of China’s growing sway is unseen by the public. In October [2017], the World Trade Organization convened ministers from nearly forty countries in Marrakech, Morocco, for the kind of routine diplomatic session that updates rules on trade in agriculture and seafood. The Trump Administration, which has been critical of the W.T.O., sent an official who delivered a speech and departed early. “For two days of meetings, there were no Americans,” a former U.S. official told me. “And the Chinese were going into every session and chortling about how they were now guarantors of the trading system.”

For Chinese leaders, Yan [Xuetong, dean of Tsinghua University’s Institute of Modern International Relations] said, “Trump is the biggest strategic opportunity.” I asked Yan how long he thought the opportunity would last. “As long as Trump stays in power,” he replied.

The Trump clan appears to “directly influence final decisions” on business and diplomacy in a way that “has rarely been seen in the political history of the United States,” the analyst [from the Pangoal Institution, a Beijing think tank] wrote. He summed it up using an obscure phrase from feudal China: jiatianxia—“to treat the state as your possession.”

For years, China’s startups lagged behind those in Silicon Valley. But there is more parity now. Of the forty-one private companies worldwide that reached “unicorn” status in 2017—meaning they had valuations of a billion dollars or more—fifteen are Chinese and seventeen are American.

There’s also an extended bit about a startup that combines AI and facial recognition. The company works very closely with police. For example, in one demo it displays jaywalkers’ names and official ID on a display screen at the intersection. “As a demonstration, using the company’s employee database, a video screen displayed a live feed of a busy intersection nearby. ‘In real time, it captures all the attributes of the cars and pedestrians,’ [the company’s VP of marketing] said. On an adjoining screen, a Pac-Man-like trail indicated a young man’s movements around the city, based only on his face.”

Happy New Year!

Self-Binding Back To The Deal

I think the logic in this post and this earlier one has stood up rather well. There were only three possible options – hard border, sea border, and no border. Everyone involved rejected the hard border. The DUP, and quite a few other people, rejected the sea border. That left only no border. The Tory Brexit caucus claimed to have a veto on that. But their leverage was just that they could howl for concessions from the prime minister. Once the EU Commission, the Republic, and the Northern Irish parties were signed up, though, the prime minister was constrained to offer them nothing. Anything she offered them would be vetoed by the others.

Negotiating theory has the interesting conclusion that you can become stronger by getting rid of alternatives. You can’t be argued into giving something up that you can’t in fact give up. This is the logic of a so-called self-binding commitment, and we saw its full force this week. Ultra-Brexiter Michael Gove was the first to crack, going the rounds of the TV and radio studios to argue in favour of the deal. European Research Group (never mind what research it might have done) chairman Steve Baker stepped up to argue for it. The promised resignations haven’t happened. It was the biggest cave since Lascaux.

So, what’s the deal? The key machinery is in paragraph 49, as George Peretz QC points out:

So, the UK guarantees to avoid a hard border. It’s worth thinking in terms of sequencing here, again. In the first instance, this guarantee is to be made good as part of the “overall EU-UK relationship”. To put it another way, the agreement between the EU and the UK should avoid a hard border. This has to be tried first. Failing that, some sort of Ireland-specific solution can be proposed by the British side. Paragraph 50 states that a sea border could happen if the Northern Ireland executive agrees to it, which requires cross-community consent. Failing that, as a last resort “in the absence of agreed solutions”, the UK will “maintain full alignment with those rules of the Single Market and Customs Union which, now or in the future, support North-South cooperation, the all-island economy, and the maintenance of the 1998 agreement”.

“Alignment” was probably the most-discussed point here for the press. Was that the same thing as “no divergence”? The second was probably whether or not there might be a sea border. But the plain meaning of Paragraph 49 is that both of these are second- or third-best options. The primary aim, the first option, is a top-level agreement between the EU and the UK that enshrines no border. The other options are there as fallback guarantees in case the talks break down. And the scope of this commitment is sweeping. Peretz again:

The hard border is defined in paragraph 43 as anything with physical infrastructure, checks, or controls. To put it another way, the only acceptable border is no border. This would be closer integration than either Norway or Switzerland has with the EU. Fascinatingly, these paragraphs do not seem to have been controversial between the British and the European Commission delegations. The Irish Times quoted something very similar to Paragraph 49 as early as Monday.

On the same day, the DUP’s threat to Theresa May said that Northern Ireland staying in the customs union might destabilise their agreement. It said nothing about the whole of the UK doing so. Arlene Foster vetoed:

any suggestion that Northern Ireland, unlike the rest of the UK, will have to mirror European regulations

Again, she said nothing about the whole of the UK doing so. In fact the DUP had not committed itself to the harder Brexit Theresa May introduced at the 2016 Conservative Party conference – ever. It’s hard to imagine how it could ever do so. As the leading Unionist voice in Ireland it needs the Good Friday agreement. As people living in Northern Ireland, they need the peace. As a political party whose constituency is largely farmers, they couldn’t live with a hard border. On the other hand, their overriding existential mission is to veto anything like a border between the UK and Northern Ireland.

A lot of people on the Left seem to have assumed the DUP was vetoing a soft-Brexit agreement, on the basis that they are Tories but more so. A lot of ERG Tories seem to have believed the same thing, on the basis that they were a substitute for Tory or UKIP MPs they hoped would get elected, or maybe because they thought the famous £435,000 donation bought something even though the DUP as such didn’t get any of it. But this misunderstands the DUP fundamentally. It is an Irish party, from Ireland, whose concerns are Irish. Its understanding of Irishness is very different from the Republic’s, but then accepting this is the whole point of the peace. If it acts as a Westminster party it usually does so for ruthlessly transactional reasons, and unlike Theresa May the ERG offered them nothing. Rather than a terrible beauty, a sordid clarity is born.

EU Commissioner Michel Barnier seems to have understood this very well. I was plenty critical of his decision to raise Northern Ireland as an issue early on – it’s important and people can get killed and I didn’t want it fiddling with, and it seemed strange to define the detail of a border before deciding what it was meant to separate. But it worked in that it anchored the vague into the specific, and put the veto actors to the test. Someone else who may have got it was Oliver Robbins, the top civil servant whose group was moved back from DEXEU to the Cabinet Office in the summer and who led the British delegation. And, of course, the Republic’s negotiators got it supremely well. It was no coincidence that the best news source throughout was RTE’s Tony Connolley.

Pulling a Brexit From Your Hat

Following up on this post, what are we to make of today’s news? The UK put forward a proposal to maintain “regulatory alignment”, which is apparently not the same thing as a lack of divergence, “on the island of Ireland”. In the terms of the previous post, this means either option b) – a sea border – or option c) – no border. The whole of the UK maintaining the alignment would, by definition, maintain it on the island of Ireland. So would giving Northern Ireland a special status and creating a sea border.

If it is option b), though, this is intolerable to the DUP, a party that exists to provide absolute certainty that it will veto anything that divides NI from the UK. And that’s exactly what the DUP did, via a 20 minute phone call to the prime minister. So why bother make an offer you know will be rejected? The DUP’s statement last week made it very clear they would veto any hint of a sea border, while saying precisely nothing about a UK-wide arrangement.

The answer may be a question of sequencing. Consider this tweet from BBC political editor Laura Kuenssberg, earlier on when the deal was still a thing:

Indeed. The proposed deal would commit part of the UK to a Norway-like status, leaving the rest of the country’s status open. But any different status for the rest of the UK would now trigger the DUP veto. This sounds a lot like an effort to deal with the multiple veto actors separately. There are quite a few – fortunately, the EU Commission and the Republic (and indeed the nationalist community in NI) are so closely aligned we can think of them as one unit. Then there are the DUP, the hard-Brexit caucus within the Tories, and the anti-Brexit majority in the Commons.

May’s original concession was worded to sound specific to Ireland, and squared veto actor no.1. Had it gone ahead, the next challenge would have been veto actor no.3 – the hard-Brexit caucus within the Tories. After all, veto actor no.1 has been promised either a sea border or no border, and veto actor no.2 will veto a sea border. The only option that is still not vetoed is no border. In this scenario, the boot is on the other foot. The DUP’s veto is now working for the prime minister, as it constitutes a self-binding commitment that constrains her from making concessions to the hard-Brexit MPs. (I see Robert Peston also noticed this.)

In the ultimate test, pushing too hard might cause the DUP to implement its veto by ending its support for the government, and either cause a general election the Conservatives would probably lose or else drive the prime minister back on the support of the anti-Brexit majority of the Commons.

It’s not a bad plan. The problem, though, is that it requires keeping the DUP sweet between the first and the third step in the sequence. A conjurer would see this as a trick with a set-up and a reveal, that needs some prestige or stage business to fill the gap between the two. Getting back to negotiating theory, though, between making the concession to veto actor 1, and confronting veto actor 3, there is a period when veto actor 2 needs reassurance – a costly signal or a side-payment – that the confrontation will actually happen. Also, the hard-Brexit caucus would have every interest in trying to sway them, as beyond this point their position is quite weak.

When you have eliminated the impossible…

A quick thought on the news that the UK “offer” has been agreed by Cabinet (see Robert Peston).

One thing that has been underdiscussed in all the arguing about the Irish border issue is that the core principle of the Good Friday agreement is cross-community consent. The agreement foresees that there can be no change in the status of Northern Ireland without the consent of both communities, and the agreement itself was subject to an act of public consent in the form of a referendum. This is crucial to the whole project. Cross-community consent offers a guarantee to the Unionists that they cannot be sold out by the British, but it is more than just a Unionist veto. To say that there can be no change without cross-community consent is also to say that there can be change, if such consent were given. In taking imposed change off the table, it puts the possibility of change through consent on it.

This is sauce for the goose and for the gander. Stephen Bush on the New Statesman has repeatedly pointed out that there are precisely three options:

a) a land border
b) a sea border
c) no border

The problem with both a) and b) is that they both represent a change in the status of Northern Ireland. I suppose a real sophist might try to claim it wasn’t substantive change, but I can’t see it washing with anyone. If you are committed to the GFA, like all British and Irish political parties, you can’t really support either unless you think you can convince the Unionists to accept b) or the Nationalists to accept a). Neither is realistic. It is not just that the DUP would hate b) or Sinn Fein a) – neither option is acceptable in terms of the GFA because both involve a change in the status of NI imposed on one community or the other.

With a) and b) ruled out that leaves only c), no border. Even the much mocked DEXEU paper on drones, balloons, and such is a sort of twisted acceptance of this point. The point of a “frictionless” or “invisible” border is that it is very like no border. This leads us to a further trilemma. The DUP, and indeed the British government, has acquired three commitments:

1) the Union
2) the GFA
3) Brexit, defined to exclude the customs union

The first is existential. The second is extremely important. DUP ministers, members, and voters benefit from peace and the open border. The third was entered into verbally when Theresa May chose to up the rhetoric at the 2016 Conservative conference, and is not binding in any way. If the first cannot be given up, the second would be extremely costly to give up, and the third merely embarrassing, what do you think will give? How does your answer change now the government has agreed to pay up?

This is why I have not been particularly worried about the Irish element of Brexit, and why I think we’re staying in something.

Article 63: It’s the New Article 50

So what’s going to happen next in Germany? It’s worth taking a look at the mechanics of how Germany elects a Chancellor. These are set out quite specifically in Article 63 of the Grundgesetz. The text is here and an official explanatory note by the parliamentary administration is here. Article 63 foresees a step-by-step process:

1) The Federal President, currently Frank-Walter Steinmeier, proposes a candidate. This candidate can be any German citizen who possesses the right to vote and to stand for election, and doesn’t have to be a member of the Bundestag. The choice is left entirely to the President, who is not required to take heed of any recommendation from the parties or anyone else. The Bundestag note says that such a candidate should be capable of a majority in parliament, but the letter of the law doesn’t prescribe any test for this. The law leaves open how long the President can take to make a decision. During this period of time, the President can require the current Chancellor to stay in office, and in practice always does. While this is the case, the Bundestag can’t vote no-confidence in them.

2) Once the choice is made, the Bundestag divides on a straight up-or-down vote. There is no debate and no other candidate at this point, it’s purely yes or no on a secret ballot. If the candidate gets an absolute majority, the President is legally bound to appoint him or her as Chancellor without further delay. Every Chancellor so far has been elected at this step.

3) If the absolute majority is not forthcoming, the Bundestag now gets 14 consecutive days from the time of the vote to elect a Chancellor, again by absolute majority. If a candidate is elected, the President must appoint them within seven days. The law leaves this phase entirely up to the Bundestag and therefore to its President, a certain Wolfgang Schäuble.

4) If there is still no solution after 14 days, a further round of voting takes place immediately. If a candidate does, in fact, get a majority at this point the usual rules apply and the President must appoint them with seven days. Failing that, though, the President has the right to either appoint the candidate with the most votes, or call a general election, which must occur within 60 days. If there is a tie, voting continues. If the President wants new elections, they must be called within the seven days or else that option is lost.

Some comments about this. First, the President’s role is quite powerful. Rather than ratifying the majority leader’s claim, the President at least theoretically makes an active choice and can in fact choose someone completely different.

Second, it’s going to be difficult to go through this process without Angela Merkel being chosen. The law leaves the President free to choose, but as the Parliamentary note points out, the President is given plenty of time precisely in order to choose someone who commands a majority. It is hard to think of anyone with a better claim. And the first Bundestag vote does not provide for an alternative candidate. It would be very difficult to keep half the Bundestag from electing her given the chance, or bringing her back in the second phase if Steinmeier was to astonish everyone by picking someone else.

Third, it’s going to be very difficult to get to new elections without cross-party agreement that they are necessary. The process defined in Article 63 sets up steadily rising pressure on the parties to agree on a chancellor. For almost any party, it would be better to come to an agreement under 3) rather than have someone imposed under 4). It would likely be necessary for one or more parties to deliberately throw several votes in order to get to new elections.

Fourth, the Bundestag is free to organise Step 3 as it wishes, so it’s probably worth having a look at that.

In the 2013-2017 Bundestag, the parliament’s own rules of procedure required a candidate to get either the signatures of 25% of its members, or else the support of a parliamentary party including 25% of the members. The absolute minimum of support required to appear on the ballot was therefore 12.5% plus one vote – a majority of a party big enough to account for 25% of the members. This rule, Section 4 of the Rules, is still in force. Now, the only parliamentary party big enough by itself to put forward a candidate is the joint CDU-CSU, with 246 out of 709 seats, 34.7%. Section 4 therefore provides that the magic number required to put forward a candidate is 17.35% or 124 exclusively CDU-CSU votes – if we get to Step 3 at all. For a cross-party candidate, it’s 177.