(… So that’s alright then)
Oxford For Europe
13 September 2020 (updated 23 September)
Illegal by name and illegal by nature
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“Dear Vote Leave activists: don’t worry about the so-called ‘permanent’ commitments this historically abysmal Cabinet are trying to make on our behalf. They are not ‘permanent’ and a serious government – one not cowed by officials and their bullshit ‘legal advice’ with which they have herded ministers like sheep – will dispense with these commitments.”
Dominic Cummings, blog, 27 March 2019. (Original source here)
“We will call out those who flout international law, like the Russian Government.”
Dominic Raab, Foreign Secretary, 13 January 2020
“Yes, this does break international law in a very specific and limited way. We are taking the power to disapply the EU law concept of direct effect, required by article 4, in certain very tightly defined circumstances.“
Brandon Lewis, NI Secretary, 8 Sep 2020
“The rule of law is not negotiable. Our commitment to the rule of law is key to attracting international business to the UK and to maintaining faith in our justice system.”
Simon Davis, President of the Law Society, 8 Sep 2020
“My Lords, does my noble and learned friend simply not understand the damage done to our reputation for probity and respect for the rule of law by those five words uttered by his ministerial colleague, in another place, on Tuesday— words that I never thought I would hear from a British Minister, far less a Conservative Minister? How can we reproach Russia, China or Iran when their conduct falls below internationally accepted standards, when we are showing such scant regard for our treaty obligations?”
Lord Michael Howard, 10 September 2020
“We, the British government and parliament, have given our word. Our honour, our credibility, our self-respect and our future influence in the world all rest upon us keeping that word. Nothing less is worthy of Britain.”
Geoffrey Cox QC, Former Attorney General, 13 September 2020
We have become accustomed to the Johnson / Cummings government making decisions which are simultaneously stupid and unscrupulous. You have only to think back on the PM’s previous 12 u-turns, and the tenuous excuses given for them. Or of the people he has chosen to appoint to senior positions, ranging from Dido Harding and Tony Abbott, through Dominic Cummings, a ‘career psychopath’ (in David Cameron’s words) and a declared anarchist, as his de facto chief of staff, to Brandon Lewis himself, gratuitously replacing Julian Smith, a competent, experienced, principled and widely respected Northern Ireland secretary, with somebody who is in every respect the opposite .
However, despite this PM’s lamentable track record, nothing could have prepared us for the latest affront, the Internal Market Bill, which is qualitatively different. As Brandon Lewis admitted in parliament (because to do otherwise would have been knowingly to mislead the House), this flies in the face of international law. And it is not just a bit illegal, it is a flagrant breach of faith, letting down our negotiating partners who happen to be all 27 of our nearest neighbours and, up to now, friends. The gutter press would have you believe that ‘Brussels’ is now frightened because Britain is prepared to stand up to them. On the contrary, the EU27 are astonished at and contemptuous of a government which could behave in this way, and even if the Bill went no further, they would not quickly forget it.
Brandon Lewis’s phrase “in a limited and specific way”, will live on in the mouths of future generations. It will join the lexicon of Tory infamy, along with Robert Armstrong (speaking for Thatcher) being “economical with the truth”, or Mandy Rice Davies’ “well he would, wouldn’t he”. We may mock, but this is a serious matter. When even arch Brexiters like Michael Howard speak out, we know this matter is not going to go away. It cannot come as a surprise that the EU 27 is proposing legal action, and takes the view that Johnson went outside the law the minute he proposed the new Bill, whether it is ever enacted or not. Talks about a trade deal continue, but frankly they will probably be little more than a pretence, because neither side wants to be the one to walk away, and because suddenly the British government is not one that anyone takes the time to make a deal with because it cannot be relied upon to keep it. This is dreadful.
If this Prime Minister were capable of serious reflection, he would have spent the last few weeks lying awake thinking through the pros and cons up bringing forward the Internal Market Bill. Sometimes, as in June 2016, such reflection is a bit like thinking through the pros and cons of taking cyanide. I would argue the same is true now.
So what, from the Johnson / Cummings perspective, are the pros and cons of the Internal Market Bill?
Clearly it will be a sop to the extreme Europhobe Spartans on the Tory side. People like Steve Baker, who are now telling us openly that in January they voted for the Withdrawal Agreement because they were given explicit promises that it would not be honoured. However, please bear in mind that their usual pattern of behaviour is, when thrown red meat, to demand more and more. Now we are hearing from some of them that their preferred option is simply to scrap the Withdrawal Agreement completely. After all, we have now left the EU, and the Tories achieved a massive majority in the election, so the WA has served its purpose. Indeed it is easy to see this move as a means of provoking the EU27 to walk away, so achieving the prize of a No-Deal / ‘Australia-style’/’WTO’ Brexit and being able to blame the other side.
The Daily Express will be happy, because it can now run headlines about Churchillian bulldog spirit, and gallant Little Britain (sorry, England) standing up to those bullies in Brussels who are acting in bad faith – notwithstanding the fact that the EU 27 position has not changed one bit since the beginning of 2016. The EU27 are doing precisely what they said they would do, which is to decline to let the UK have its cake and eat it. They have negotiated in an adult way, in the vain hope that the UK government would do the same. It is the Europhobes who got it wrong, by claiming the EU would back down. I have yet to hear them apologise.
BJ claims in yesterday’s Telegraph that the Bill will in some way stop the EU27 from imposing a food “blockade” in the Irish sea that would destroy the “economic and territorial integrity of the UK”. He seems to forget that a blockade is precisely what he created with his Brexit project.
The PM can try to claim that the Bill is only a contingency plan, which will only be needed if a Free Trade Agreement does not happen. This is of course false. The WA is separate from trading negotiations and is binding regardless of their outcome. And of course, ironically, the Bill makes an FTA less likely.
There seems to be a residual hope that somehow The UK government can drive a wedge between its EU interlocutors. Hence the story in the Telegraph that panicking national governments are threatening to ‘sideline’ Barnier. This represents a complete misunderstanding of how the EU works. The reality is that the EU knows that the biggest victim by far of Brexit is the UK, and the German car industry is not pushing Merkel to make concessions. Quite the reverse, because they recognise the importance of the single market and also of course the fact that, with the weakened pound, the UK is no longer as attractive a destination as it used to be for EU export products. Indeed, nothing has served to unite the EU 27 as effectively as the shock and abhorrence created by Johnson’s behaviour.
This is a golden opportunity to put the pesky Irish in their place. In Ireland in days of old there was a saying that “England’s difficulty is Ireland’s opportunity”. Maybe Johnson is trying to take turn this on its head and take advantage of Ireland’s ‘weakness’ following the departure from office of the formidable Varadkar and Hogan. If this is his calculation, he has a lot to learn. Ireland is not negotiating on its own, and there is huge moral capital invested by the EU 27 in ensuring that Johnson does not undermine what has been achieved so far.
The decision will please the DUP, who rightly feel shafted by the Johnson government. They foolishly believed his promises through 2019 that he would never allow customs checks in the Irish Sea, just before he solemnly promised the Europeans that he would do precisely that. On the other hand, while the DUP prior to the December election were the Tory government’s Useful Idiots, now they are no longer useful.
Perhaps in the parallel universe of Johnson and Cummings, this whole affair is another dead cat, which can distract from the government’s performance in managing the economy, in setting up a test and trace programme, in siphoning off public funds to Tory party supporters, and in selling the UK economy and the NHS to Donald Trump. It would take a fool to believe that this will work, and the voting public have a right to feel their intelligence is being insulted.
Where do you start? The unwisdom of what this government is doing is so blatantly obvious that, not only did Sir Jonathan Jones, head of the Government legal department, resign immediately in protest, but also almost all former Tory leaders and all 5 living former Prime Ministers (now including even Cameron) have spoken out passionately against it. Even Brexiters like Michael Howard and Norman Lamont and now Geoffrey Cox QC have not held back. It should not need to be said that openly breaking international law is a catastrophically bad decision. It turns the country into a laughing stock and an international pariah comparable with Lukashenko’s Belarus and Orban’s Hungary. It makes it impossible for this country to speak out plausibly on breaches of international law in other parts of the world.
The decision profoundly undermines negotiations on an EU trade deal, which are already in a parlous state with the clock ticking down rapidly. Time will run out on, at the latest, October 15th, just about a month from now. And the fantasy that a deal will be done the last minute will be discredited. BJ’s belief that this is a good way to do business is shown up by one of his own excuses for repudiating the Northern Ireland protocol of the Withdrawal Agreement, namely that it was signed in haste. If this is true, then he should have learned a lesson from it and avoided leaving substantive negotiations to the last minute this time around. The European Parliament has already made it clear that it will not approve a trade deal if the UK remains in contempt of international law.
Countries around the world will be looking at what is going on here. Johnson / Cummings continue to have, or at least express, a touching faith in third countries to sign rapid trade deals with the UK. They continue to talk as if this country’s negotiating position had not already been grossly undermined by Brexit. After all, part of the art of negotiation is knowing how strong or otherwise you are vis a vis the other side. The much vaunted trade agreement with Japan (which is in substance little different from what the UK could have had as a member of the EU anyway), remains to be ratified, and we can have no doubt that the Japanese, who are canny operators, and who are already stung by what the UK’s hard Brexit policy has done to their car industry, are thinking very hard about whether they would still trust this government as a trading partner.
As for our prospective deal with the USA, of which Johnson is so proud, he has just dealt it a potentially fatal blow. In doing this he may very well have done the country a favour, as the trade deal was always going to be predicated on Trump’s “America First” principles, and therefore damaging to both consumers and producers in the UK , with little tangible benefit to GDP. it would also, of course, have made it more difficult to trade with the rest of Europe, which will always be a much more important trading partner for us. Nonetheless, from the Johnson perspective it is a prize worth winning and he has invested a lot of political capital in it. Nancy Pelosi, House Speaker, and Richard Neal, the chair of the Ways and Means committee, have made it clear that any attempt to undermine the Good Friday Agreement will lead to Congress blocking a US / UK trade deal, and regardless of who wins the November election, Congress has the power to do this.
It must be apparent to this government that voters have a right to feel cheated. They elected the Tories by a large majority only nine months ago, and one of the most important selling points was their Withdrawal Agreement, which Johnson praised to the skies and described as an “oven ready deal”. How can he now, so soon afterwards, repudiate is as threatening peace in Northern Ireland, knowing that its express intention was to do precisely the opposite? This, as in 2016, throws into serious doubt the legitimacy of the electoral decision.
And of course peace in Northern Ireland is the most important issue here. When Johnson signed the Northern Ireland protocol he was acknowledging that keeping an open border in Ireland entailed putting some customs checks in the Irish Sea, at least for traffic going from east to west, if not in the other direction. He now seems to be claiming that his hand was forced at the time and that he did not know or understand what he was signing. If this were the case it would be quite simply a resigning matter for any politician. However, there is now clear evidence that the PM was warned by his civil servants before signing the WA what the implications would be. Quite simply, if the Northern Ireland protocol is not applied it follows that there will be a border on the island of Ireland, with all that this implies for the peace process.
That the bill can and will be challenged in the European Court of justice is a given, even if it never becomes law. The government may pretend not to be bothered by this, as it has been fighting specifically to leave the ECJ’s jurisdiction. However, it seems likely that it will be subject to judicial challenge within the UK as well, and for this reason it has within it clauses asserting immunity from legal challenge. Can this government really believe it can get away with this? At the very least, it could lead to a major constitutional crisis within the UK, with serious uncertainty as to how it will finish.
The PM’s u-turn on the WA is actually a sign of weakness. He is admitting that, as we on the Remain side have always said, this withdrawal agreement is unsatisfactory. It is perhaps the least worst of all the options, so, as we have always claimed, “good Brexit” is really an oxymoron. It cannot be done.
Finally, Johnson must have been at least a little surprised at the vehemence of opposition to what he is doing from within his own party. He has managed to split the party right down the middle, and even though his bill has now survived its second reading, with the usual threats and bribes, and he may well get his legislation through the Commons, doing so will cost him and his party dearly. And, even after that, he has the Lords to contend with.
We may well ask whether Johnson personally can survive this. If he does not, his departure may prove to be his first ever substantial service to his country.
The views stated here are those of the author, and not necessarily those of Oxford For Europe