The Government is not on the verge of breaking international law. It may not do so, at least in the context of Brexit, and doesn’t want to.
One aim of the plan of which Brandon Lewis’ extraordinary admission in the Commons was a part may be to wind up the pressure on the EU for a trade deal. If that happens, the ambiguities in arrangements for Northern Ireland will be smoothed out.
And if that happens, there will be no need for the Government, as Downing Street now sees it, to break the Northern Ireland Ireland Protocol contained in the Withdrawal Agreement that is now enshrined in law – in a “very specific and limited way”.
Perhaps the effect of Lewis’ words will be to stampede the EU towards a deal, rather than risk seeing the elaborate arrangements in the Protocol dramatically unwound in the event of No Deal. And maybe the effect will be exactly the opposite: to persuade our interlocutors that Boris Johnson’s Government can’t be trusted.
But either way, the main objective of its plan is nothing to do with trade. That may be a part of it, but it’s not the most important one, let alone the whole. For Johnson and Dominic Cummings’ thinking is concentrated not on trade, nor on Northern Ireland alone, but on our national independence.
One of the cardinal aims of Vote Leave was to minimise – if not void – the impact of decisions by the European Court on Britain. Until Lewis’ admission, it appeared that the Government might be able to meet this aim, in relation to Northern Ireland’s position and in the event of No Deal, without breaking international law.
Cummings and Johnson are now conceding that it can’t. In their view, Britain will be vulnerable to legal challenges in the court, if No Deal happens, under the terms of the Protocol. So their solution is for the forthcoming UK Internal Market Bill to contain clauses that override the Withdrawal Agreement.
Which if applied would put the Government in breach of the Treaty which enshrined the Agreement – thus breaching international law. Let’s leave for the moment the question of in what circumstances ECJ decisions might continue to apply, and ask whether a British Government should ever deliberately act in this way?
Lewis suggested that at least one previous government has done so. He cited a Coalition Finance Act. And was swiftly contradicted by George Osborne. We wait for further examples. He also implied that other liberal democracies that respect the rule of law do so too. Again, we wait for evidence.
These are early days. There is no UK Internal Market Bill as yet, and thus no legal text. No Deal hasn’t happened, and may not at all. Even if it does, the Government may not seek to over-ride the Withdrawal Agreement and thus break International Law. But the implications of Downing Street’s plan are momentous.
First, it raises an obvious question. If the Prime Minister believes that the Withdrawal Agreement didn’t deal satisfactorily with the ECJ, why did he sign it at all? And if it is so flawed, why not chuck it altogether, as the Brexit Research Group suggests?
In which case, why not go the whole hog – all out for No Deal? Or, if you like neither that idea, nor the Agreement, nor breaching international law, go back to Theresa May’s approach? Or seek to reverse Brexit altogether? Johnson’s election victory put the debate about leaving the EU to bed. Lewis’ statement has woken it up again.
Second, Conservative MPs will worry away about the consequences – and the whole strategy. Many will look at it in the light of the Government’s performance as a whole, and their disquiet about the role of Cummings, the centrality of decision-making, the quality of the Cabinet – and, in the view of some, its marginalistion.
They will ask: who agreed this approach? Did the Cabinet sign it off? (Answer: almost certainly not.) Or has it been fomed by a band of Vote Leave brothers? Is Robert Buckland content? Would Suella Braverman ever be willing to stand up to Downing Street? Why has the top Government lawyer quit? Where is Michael Gove?
Third, ConservativeHome is not at all sure of the consequences for the Bill. To be sure, Johnson has a Commons majority of 80, and an authority he didn’t possess before December’s election. But as we are all beginning to see elsewhere, a majority of 80 is not what it was.
One expects former Remainers who have never been members of the Johnson fan club – such as Bob Neil, whose Commons question to Lewis yesterday set off this furore – or, say, Roger Gale to emerge from the shadows to criticise the Government.
Nonetheless, Neil is a Select Committee Chairman. So is Tobias Ellwood, who has also criticised the decision. Theresa May, who piled in yesterday in advance of Neil’s question, could scarcely be more senior. (That the former Prime Minister might have done better to have held off is another matter.)
Furthermore, the Bill will now meet stiff resistance in the Lords. So it may not come into effect before the end of transition. Which in turn would then leave Britain open to the ECJ in the way that Johnson and Cummings are seeking to prevent. And Nicola Sturgeon will kick off in Scotland, as support for independence rises.
The big question seems to us to be: would it really be worth breaking international law, with all the consequences that might flow from it, in order to further minimise the role of the ECJ? After all, the Agreement has not voided its role. Last year, Martin Howe cited four examples of its “long term subjection of the UK to rulings by the ECJ”.
The Conservative Party was more than prepared for the EU referendum when it came: the question of Britain’s relationship with the European project had been a matter of public debate since the war. It is also prepared for future debate about relationship with the European Convention on Human Rights.
The Conservative manifestos of both 2010 and 2015 promised a British Bill of Rights – in order to clip the wings of that other European Court, the ECHR. Johnson’s own manifesto’s commitment to a Constitution, Democracy and Human Rights Commission arguably points in the same direction.
However, the Party is not prepared at all for a debate on whether or not British governments should ever deliberately breach international law. The pitch has not been rolled. Cummings’ focus groups have doubtless given the plan a thumbs-up. Tory MPs may turn out to be a different proposition.
There is no International Supreme Court to adjudicate on international law, and long may that continue. But this is not for a moment to claim that it has no value. British Governments have been committed to international law – a fact that underpins criticisms makes of injustices committed by, to pick a topical example, China.
Johnson and Cummings’ previous assaults on the pre-Brexit order have been brilliantly conceived. This site will need a lot of convincing that this one is up to the same standard.
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