We have seen numerous political and cultural conventions slashed aside by the Brexit Jacobins – the full-frontal media assault on the judiciary and the illegal prorogation of parliament being the most egregious examples. Now, a cabinet minister speaking at the dispatch box of the House of Commons has, almost casually, announced that the government is proposing to “break international law” in pursuit of its Brexit policy. The qualification that it will be only “in a very specific and limited way” was almost immaterial and its ludicrousness is obvious if imagined as a defence in any criminal law trial.
Earlier the same day, Sir Jonathan Jones, the senior civil servant who heads the government’s legal department resigned. He joins a growing list of such resignations, with Brexit always at the centre, and in this case with extra force since it was clearly the result of his refusal to go along with the government’s proposed law-breaking (£). This represents a very serious moment, not just in the history of Brexit but in modern British political history more generally, and it is vital not to be inured to its significance by the continual outrageous acts of the Brexit governments. For when has a government minister ever announced an intention to knowingly break the law?
This is a very big event. Even Theresa May, who in her time often behaved with contempt for parliament and in other highly divisive ways, was moved to warn bluntly of the consequences for any international trust in the UK if the government went down this route. Another former Prime Minister, Sir John Major, subsequently made a similar point as – perhaps even more significantly given his pro-Brexit credentials – did former Tory leader Lord Howard. The Attorney-General, former ERG Chair Suella Braverman, then sought to provide a legal justification of the government’s position which attracted thunderous criticism from across the legal fraternity, with Mark Elliot, Professor of Public Law at Cambridge University, describing it as “utterly risible”.
Meanwhile, the EU requested an immediate meeting of the UK-EU Joint Committee following which it issued an extremely robust statement about this “extremely serious violation of the Withdrawal Agreement and of international law” and calling on the UK to drop its proposed measures by the end of the month with the at least implicit warning of legal action. The UK statement, which was blander in tone - although Michael Gove, the UK co-chair, was reportedly less than polite during the meeting - stated that the UK would not do so. The stage is therefore set for a colossal crisis.
What just happened?
It’s important to hold in mind these reactions because whilst the implications are huge, the underlying issues will, to many, seem arcane and even dull. In brief (more detail: here) the government plans to pass domestic legislation - the UK Internal Market Bill - which would contradict some of the provisions of the Northern Ireland Protocol (NIP), a part of the Withdrawal Agreement (WA), by allowing the UK unilaterally to make changes to its terms, rather than doing so by mutual agreement with the EU via the Joint Committee established to oversee the WA.
In particular, the legislation means that the UK government could unilaterally change or do away with customs formalities on goods travelling from Northern Ireland to Great Britain, and unilaterally remove the role of EU law and regulation in state aid policy in Northern Ireland. The latter has a significance beyond Northern Ireland in that it also aims to prevent the NIP creating any backdoor role for the EU on state aid policy within Great Britain (of which more later). When the draft legislation was published, legal experts confirmed that it empowered the government to breach international law and, indeed, that is made explicit in the Bill.
The significance of this is not that, in itself, it entails ‘ripping up the WA’ but that it creates a conflict between domestic law and the WA, which is a legally binding international treaty. The potential legal consequences of this are that the EU could take immediate action at the ECJ on the basis that even proposing this legislation breaks the ‘good faith’ clause of the WA. Alternatively, If the powers the legislation gives government were actually exercised that could give rise to a case and, potentially, penalties within the WA’s dispute mechanism.
That is (or may be) for the future. What matter now are the political implications for Brexit (and, though I don’t focus on it here, its implications for Scottish and Welsh devolution). In particular, it explicitly and officially confirms that the UK is ready to make unilateral interpretations of what was jointly agreed and, more widely, opens up the prospect that the UK regards adherence to the WA as in some way conditional upon whatever future agreements are or are not made with the EU.
This directly undercuts the central purpose of the NIP which is to provide guarantees for Northern Ireland’s situation that apply irrespective of anything else that may happen, unless or until any further agreement is reached jointly by the UK and the EU. Moreover, by treating one part of the WA in this way, it does, ultimately, open up the possibility of the UK reneging on the agreement wholesale.
That, as I warned in June, would be to embark on the road to international pariahdom. In that post I said we weren’t on that road yet, but could see the signposts pointing us in that direction. This week, the UK took the first step along it. It is undoubtedly the case that the first such step is the most difficult to take. From here on in it will get easier to continue that journey, and harder to resist those urging that it be made.
Why is this happening?
These latest developments, startling as they may be for those who have tuned out of Brexit in recent times, have not come out of nowhere. In early June Boris Johnson was already talking about the WA as being “defective” and in need of revision (even earlier, in February, there were well-sourced rumours of plans to circumvent the NIP). That of course was the deal that he himself had signed and acclaimed less than six months before. So one part of what we’re seeing is the latest and perhaps strangest example of what I wrote about last week – the way that throughout the process the UK has been internally debating what Brexit means at the same time as actually enacting it. Thus although we’ve long known that fisheries would be a contested issue, it is only more recently that state aid emerged as another such issue. And although the arrangements for Northern Ireland had apparently been settled, the UK is now re-opening them.
There are two reasons for this. One is that Dominic Cummings’ latest obsession is an activist government policy of financial support for technology firms. This isn’t the place to discuss the merits or otherwise (£) of that policy – except to note that it is all of a piece with Cummings’ drearily cliched ‘disruptor’ world view, cribbed from 1990s airport lounge business books. Nor does it really matter that there’s no good reason to think that a robust UK state aid regime – indeed the EU state aid regime – would preclude such a policy (cynics might therefore wonder if the real problem is that such a regime would prevent the Johnson-Cummings government handing out public contracts to its cronies).
What does matter is the extraordinary democratic affront that the peccadilloes of this single unelected advisor should drive national strategy and, worse, that at this late stage it should be introduced as something that might actually scupper a trade deal, with all the economic damage that will cause, and, worse still, that it should lead to the WA itself being put in jeopardy.
The second reason is equally, if not more, shameful. As was clear to many at the time and is now undeniable, Johnson, his government, and his MPs voted for and signed the WA, including the NIP, either without understanding or without caring what it meant. This lack of understanding was not just to do with state aid, but also the border arrangements for Northern Ireland and (although not a feature of this week’s debacle) the Geographical Indications agreement.
There’s no justification for this in general, and certainly none as regards the implications of an Irish Sea border, since these were loudly flagged up by many, including the DUP, at the time. More than that, such a border had already been described by Theresa May in February 2018 as completely unacceptable (£), even though she had agreed to it at the end of the phase 1 negotiations in December 2017. It was this which led to May’s backstop agreement, which Johnson then ‘renegotiated’ to return to the sea border solution – and which he claimed as a great triumph, despite having promised categorically during the Tory leadership election that he would not agree to it. This convoluted and contradictory history is a matter of documented record, and it is simply a lie for the government and Brexiters now to deny it.
So what happened was not an accident, it was wilful, deliberate policy so as to enable Johnson to say that he had got Brexit sorted out and to put that to the electorate as an ‘oven ready deal’, and then – again at his choice - to rush it through parliament with next to no scrutiny, and with the support of every single Tory MP including every member of the ERG. In the process, he repeatedly denied that the Irish Sea border he had agreed to would have the effects that he later admitted it would and which he now wants to repudiate. He was simply too lazy, too dishonest, too impatient, too greedy, too ambitious, too selfish, and too irresponsible to care.
As for Cummings, it seems that he had already essentially lost interest in the details of Brexit (£), being instead fully occupied with both his technology wet dream and his punitive attack on the civil service. Such is the arrogance and irresponsibility of the ‘disruptor’. Having done so much to foist the Brexit disaster on us, he just ceased to care until belatedly realizing that the hitherto obscure (except, for different reasons, to Lexiters) issue of state aid might get in the way of the new toy he is playing with (that toy being what was formerly called the future of our country).
As for the MPs who voted it through, they were partly cowed by the bullying of the new Johnson-Cummings regime – which had dealt so ruthlessly with the 21 members of the ‘Gawkward squad’ in September 2019 – partly, again, too lazy and arrogant to care, and partly on the basis that whatever was agreed with the EU wasn’t really binding. Bernard Jenkin, the arch-Brexiter MP, said exactly that this week, claiming that he and others of his persuasion only voted for the WA because of assurances “that it would be superseded by a full FTA; and if needs be it could be repudiated”*.
There is no way to describe this other than grotesquely dishonest or, if there is, then the only other possibility is grotesquely stupid. How could anyone, with even the scantest knowledge, possibly have thought that this was the case? How could anyone have thought when campaigning in the election, as Jenkin and his colleagues did, to ‘get Brexit done’ with Johnson’s ‘great oven-ready deal’ that it was the case? They knew, or should have known, otherwise but went along with it for reasons of temporary expediency. Now, they are pretending that they never accepted what they had agreed to and are not bound by it.
Back to no deal 1.0?
But, again, this hasn’t come out of nowhere. As I have been warning since the general election, the Brexit Ultras have never accepted the legitimacy of the WA, and have gradually become more and more vociferous in demanding that the UK renege on it entirely. That includes the ERG MPs like Iain Duncan Smith who voted for it, as well as the Brexit Party whose ever-present shadow hangs over the Tory Party (and whose MEPs also voted for the WA, in the European Parliament).
For these people, the issue isn’t this or that detail of the agreement, such as those of state aid or customs formalities, but an ideological fixation with a totally cretinous idea of ‘sovereignty’ in which Britain can simply act with total unilateral autonomy, and do so without any consequences. Tellingly, this was in essence the claim of the Attorney-General’s reasoning as to why the UK can break international law. So not only are they prepared for the ‘no deal 2.0’ of having no trade deal, they want to go back to what the 2017 parliament prevented by reinstating the ‘no deal 1.0’ of having no Withdrawal Agreement.
I also warned in July that, as has happened throughout the Brexit process, what seemed like the fringe opinions of a few obsessive extremists would quickly become mainstream. That is what has started to happen this week. They don’t seem to have been the direct architects of these events – Cummings despises the ERG, and Johnson has never been of the true faith – but they and their media cohorts leapt on the possibility of undermining the WA with glee.
If pandering to them was not the government’s motive then it was certainly its effect. Johnson has already treated the Political Declaration as an irrelevance. Now he is saying that the – his – “Brexit deal never made any sense”, and that he will break international law to flout some of it. That is bound to ramp up expectations amongst the Ultras that their dream of reneging totally is a real prospect. And, indeed, with grim inevitability, within hours of the publication of the Internal Market Bill, ERG members were talking of amendments to extend its provisions even further. As always, the moment they get one thing, no matter how extreme, they will immediately demand something even more extreme.
‘The adults are no longer in charge’
The endless dramas, zig-zags and downright chaos of the UK approach to the Brexit process are in marked contrast with that of the EU. For despite the constant refrain of ‘sovereign equality’, the two have certainly not been at all similar in the dignity of their conduct. The EU has been consistent, rational and principled in its approach. It is hard to think of anything that it has done in the last four years which is in any sense surprising and which hasn’t been long-trailed.
That is not said in a spirit of starry-eyed worship. It’s not, after all, some huge triumph to meet the base line for how we expect international relations to be conducted by liberal democracies. It is how, in the past, the UK would have been expected to behave. That it has not has caused bewilderment and, now, real anger in the EU and is a source of shame for those of us who are British and actually care about our country’s reputation, of which the Brexit faux-patriots are so careless. To get a measure of the damage, it is only necessary to imagine how the Brexiters would react if it were the EU which proposed unilaterally to tamper with the provisions of the WA, and to shamelessly admit that it was ready to do so in defiance of international law.
But as Bobby McDonagh - former Irish Ambassador to the EU, UK and Italy, so not one likely to use undiplomatic language lightly - observed this week, “the adults are no longer in charge in Downing Street”. Instead, he compares those running the UK to tantrum-throwing toddlers. And, indeed, such tantrums have been a recurring feature of Brexiter behaviour, with repeated cries of ‘it’s not fair’ throughout the long process. In the early years, Theresa May played the role of a governess misguidedly trying to soothe these shrieking man-babies. Now they are in charge.
This makes it harder than ever to understand what the government is doing or to predict what it will do next. It’s almost pointless to try to understand this week’s events in terms of whether or how they might be ‘negotiating ploys’, for example to make the talks so toxic that the EU would walk out in exasperation (as some politicians in the EU are now suggesting) so it could be blamed for no deal; or to make the EU believe that the UK is ready to rip up the entire WA if there is no trade deal, so as to secure such a deal. For what it is worth I don’t think either of these things will happen. As for the motivation, as likely as not all we have seen is an example of the Cummings mantra of ‘doing the unexpected’, as if that had a virtue in itself.
What are the effects of this week’s events?
Whatever the intention, the immediate effect is obvious. In what was already an atmosphere of almost no trust from the EU, the UK government have now eviscerated what little remained. Whilst the issues posed by the Internal Market Bill are a matter for the Joint Committee, their malign influence is bound to spread to the trade negotiations as well. These negotiations have not been helped by the parallel developments this week about UK state aid policy, which have also been very convoluted.
Whilst the Internal Market Bill is partly aimed at avoiding the application of EU state aid rules in any way in the UK, the question remains as to what the UK state aid regime is to be. This is a central bone of contention in the trade negotiations. The EU has softened its initial wish for the UK to follow EU rules, but has asked the UK to specify what its own rules will be. This week, the government announced that, on the one hand, post-transition, it would follow WTO state aid rules and, on the other, that it would develop its own system but not until next year (£).
WTO state aid rules are very different from those of the EU and they do not apply to services, and would obviously not meet the EU’s requirements for a trade deal with the UK (something confirmed by Michel Barnier’s statement at the end of this week’s talks). Yet the UK’s announcement did not rule out developing a new system that would do so, and was explicit in saying that it might agree new obligations within future free trade agreements (including, presumably, with the EU). So this part of the announcement does not scupper the trade talks, but does not advance them, either.
Equally, though, the announcement that the UK’s own system will not be developed until after the transition is over means that the EU request for details of it has been refused which is, as one EU official is quoted as saying, “tantamount to taunting us” (£). So this part of the announcement makes a trade deal more difficult. In effect, it asks the EU to take on trust that the UK will develop a suitably robust regime, just at the moment that with the Internal Market Bill bombshell trust has been so badly undermined. If there is a logic to this, it is impossible to discern. Unsurprisingly, this week’s trade talks ended with no apparent progress having been made.
There will also be repercussions beyond the negotiating tables, as ordinary citizens across Europe view the extraordinary reports of the UK’s behaviour. And there will be repercussions well beyond Europe and Brexit, given the many international disputes in which the UK calls for respect for international law. Such calls will now invite an obvious retort of hypocrisy. Already, senior US politicians are warning of the folly of the government’s conduct (£) and a CNN report suggests that “it could take the UK’s reputation years to recover from the backlash”.
Where might this lead?
I doubt, though, that any of this will concern the Brexit Ultras. Always a nihilist cult, the passage of time has made them utterly indifferent to anything other than Brexit in its most extreme form, and always moving the definition of what that means to a new extremity. They are now willing to sacrifice anything and everything to a cause that has long since ceased to bear any resemblance whatsoever to the promises they made. It has now become – and I don’t use this term lightly or carelessly – a form of political insanity, and it is an insanity which has spread to the entire government.
It’s not clear who can stop this insanity. It’s possible that this latest debacle might finally galvanize sensible voices in the Conservative Party – and there are still a few – to finally draw a line they will not allow the Ultras to cross. Michael Howard’s intervention in particular might be a sign of that, and there are some stirrings of backbench rebellion at the prospect of breaking international law. Even Bernard Jenkin seems slightly uneasy about it. So the most optimistic version is that this new low also marks a floor beneath which we will not sink. But other ERG MPs, such as Andrew Bridgen, remain obdurate. My sense is that things are simply too far gone now for the party to be reclaimed from them.
That aside, the opposition parties can do little in the face of the Tory majority and Keir Starmer, mistakenly in my view, appears unwilling to go anywhere near anything related to Brexit, though that too could change. The House of Lords may delay the Internal Market legislation but is relatively powerless to prevent the wider drift to extremism. Civil servants have limited power, and their final weapon of resignation only strengthens the ideologues. Much of the media are cowed or complicit. The public, for now anyway, are largely apathetic and perhaps understandably more concerned about coronavirus than Brexit.
So it seems that little stands in the way of the government taking ever-more extreme stances. I think that when the dust settles on this week’s events their legacy will have been to bring reneging on the WA, in its entirety, more centrally into political discourse and to have moved the UK one step closer to actually doing it. If this seems far-fetched, then consider that until a few days ago the idea of the UK overturning even one part of the WA would have been laughed at by most, and that of the government announcing its willingness to break international law deemed preposterous.
A complete repudiation, of course, would be a calamity far worse than this week’s news, far worse than no (trade) deal and, actually, far worse than if there had been no (WA) deal in the first place. For, along with all the economic damage, and the likely impact on the Northern Ireland peace process, it would irrevocably mark the UK out as a liar and cheat on the international stage. We aren’t there yet, and it’s not inevitable that we will get there, but we got a step closer this week.
It is worth remembering, as always, that nothing remotely like what is happening now was ever suggested to the voters in the 2016 Referendum or, indeed, the 2019 Election. Indeed there is a level of mendacity in the current re-writing of what was said and promised not years but only months ago which is sickening even to those of us who thought we could no longer be astounded by the incontinent dishonesty, boundless incompetence, and bankrupt morality of the Brexit Ultras.
*So much Brexit history has come and gone that it might easily be forgotten that this proposition – that a WA could be made and then later dropped – did not simply emerge as an artefact of the political situation of Johnson’s 2019 governments. Exactly the same idea had been put forward by Michael Gove in September 2018 in an ill-fated attempt to get the Ultras to support May’s Chequers proposals which, had they succeeded, would have become part of the WA. So it is not unreasonable to claim that such chicanery had long been in prospect. All this, as I’ve explained numerous times on this blog, including last week, ultimately roots back to the basic refusal of the Brexiters to accept, or to understand, the sequencing of the Brexit process.
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