Daniel Hannan is a writer and columnist. He was a Conservative MEP from 1999 to 2020, and is now President of the Initiative for Free Trade.
As usual, the public has reacted to Westminster’s hysterics with an amused shrug. Lawyers and diplomats, pundits and politicians, are in a frenzied rage about the Government’s announcement that it might violate the Withdrawal Agreement. In some cases, the rage is confected; but in most, it is genuine.
The country as a whole, though, takes an altogether more relaxed view. Where politicians get bogged down in detail, voters tend to see things impressionistically. They sense – correctly – that international law is protean and often disputed.
Countries are forever being charged with infracting this or that treaty. The EU, for example, is in breach of several trade agreements, ranging from its groundless bans on overseas agricultural produce to its illicit Airbus subsidies. It also frequently violates its own treaties, sometimes on issues of enormous consequence. The eurozone bailouts, for example, were patently illegal, not just in the sense that they had no basis in the European treaties, but in the sense that they were expressly prohibited. No one in Brussels tried to claim otherwise. Rather, they pleaded raison d’état.
So when British voters see Eurocrats fainting like so many affronted Victorian matrons, they just don’t buy it. They know that Brussels has negotiated in a bellicose spirit from the start. They sense the difference in tone between Michel Barnier and negotiators from, say, Australia or Japan, who are uncomplicatedly keen on maximising mutual gains.
Where Labour and a handful of Tories see a violation of international law, most voters see the people who have always backed Brussels doing so once again. No doubt John Major and Tony Blair think of themselves as distinguished elder statesmen cautioning their country against error; but I’m prepared to bet that most people’s reaction will be, “Well, they would say that, wouldn’t they?”
For what it’s worth, I think most of the Bill’s opponents have decent motives. Some, no doubt, are driven by personal rancour, or by a reflexive opposition to anything the Prime Minister does. Some are still sore about Brexit. But many have genuine worries about international law.
I happen to think they are wrong. First, the Bill itself doesn’t violate any laws: it merely creates an emergency mechanism by which the most damaging aspects of the Northern Ireland Protocol can be prevented. Second, the bits that Brussels dislikes would come into effect only if, despite all its promises, the EU failed to agree a trade deal. Third, even if it came to that, there is a strong argument that not taking preventative action would constitute a worse legal breach than taking it – in other words, that suspending some aspects of the Protocol would be a lesser infraction than violating the principle, affirmed both in the Belfast Agreement and in the Protocol itself, that Northern Ireland’s status cannot change without its consent.
This last point barely featured in the debates, but it strikes me as elemental. If there is a clash between legal obligations – if, that is, we can only apply aspects of the Protocol by breaking other laws, such as Article VI of the 1801 Act of Union – then we should give priority to our domestic constitutional order. This is not some Powellite assertion of British exceptionalism. It is a widely-shared principle upheld by, among others, the EU.
For example, in its 2008 ruling on the Kadi case (involving a Saudi businessman whose assets had been frozen), the European Court of Justice reiterated its doctrine that “a treaty can never enjoy primacy over provisions (including protection of fundamental human rights) that form part of the constitutional foundations of the Union.” That is, of course, precisely the argument that the Attorney General has made in a UK context.
To be clear, I am not suggesting that lots of people have pondered ECJ precedent and concluded that the EU is applying a double standard. Rather, in a shrewd and largely instinctive way, people have sussed that Britain faces an ill-disposed and hypocritical negotiating partner which is making unreasonable demands.
That, ultimately, is why Boris Johnson will get his Bill. It’s not just that he is right to have acted as he has (though he is). It’s that the country is with him. The Internal Market Bill has lined up everyone against the Government – except the general population. That split – radical lawyers, Europhile politicians, unelected peers and woke actors versus everyone else – is one with which Tory strategists are comfortable.
This is emphatically not an argument for always following public opinion. Apart from anything else, we are a fickle species. We demand the strictest possible lockdown, complete with curfews, and then complain about the downturn. We ask for increases in public spending, but we will react with fury when the money runs out. The last thing we want, when confronted with the consequences of our own choices, is to be reminded of what we asked for. Gavin Williamson could no more say “but you all told me to close the schools” Tony Blair could say “but you all supported the Iraq invasion when it was launched”. As Dryden put it, “Crowds err not, though to both extremes they run”.
Governing by opinion poll fails in its own terms. But, over the cycle, people generally get the big calls right. Not always; but more often than the elites. Brexit was a case in point. So is the Internal Market Bill.
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