Its high-risk and unprincipled Brexit gamble is without justification or precedent, says one of the UK’s most senior former diplomatsby David Hannay / September 13, 2020 / Leave a comment
Last week the government took another lurch into that post-Brexit quagmire of its own making, when it tabled the Internal Market Bill which it admits breaks international law. The first lurch occurred in February when, within days of Britain leaving the EU, the government dumped the Political Declaration on the future relationship to which it had signed up a few months before. That broke plenty of diplomatic china and condemned the negotiations which have been going on since then to deadlock; but it did not break the law. Now that line too has been crossed; and that by a government which continually says, quite rightly, that maintaining a rules-based international order is in Britain’s national interest.
If that does not shock you, just look at the sequence of events. Less than a year ago, in October 2019, Boris Johnson sealed a deal in Brussels by accepting the Northern Ireland Protocol which he now seeks to override. In December he won a substantial majority in a general election on a manifesto which promised to implement that deal. In January of this year the new parliament gave effect in domestic law to the provisions of the deal, opening the way to it being ratified and thus to Britain leaving the EU at the end of that month. The Northern Ireland Protocol certainly provides for its detailed realisation to be worked out by common accord in a Joint Committee. It makes no provision for any aspect of the protocol to be settled by a unilateral decision of one of the parties.
What is the credibility of the government’s attempt to argue that the changes to the protocol it plans to introduce unilaterally are just some technical points of a limited nature? Zero, I would suggest. Just look at Clauses 42 ,43 and 45 of the new bill and you will see that the government is asking to be given sweeping new powers (details unspecified) in a whole range of areas, not just on state aids but also apparently in the offing over tariffs and other customs controls.
What too of the government’s assertion that it is acting to safeguard the Good Friday agreement on which peace and stability in Northern Ireland rests? Leaving aside the fact that, if they did last October sign up to a Protocol which cut across the Good Friday Agreement they were contravening existing UK domestic law, the opposite to their assertion is the reality. That is the view of the Irish government; and of a whole range of those represented in the Stormont assembly (and even the DUP, no friend of the protocol, had indicated that they would live with its implementation); it is the view of the Speaker of the US House of Representatives and the chair of its Ways and Means Committee, whose say-so is essential to the ratification of any UK/US free trade agreement.
So, why has the government embarked on such a high-risk and unprincipled gamble? It may be that they believe it will force the EU into making compromises on both the future relationship and on the detailed provisions for implementing the protocol. If that is their calculation, the precedents of previous attempts to put the frighteners on the EU show that they are likely to be disappointed. More likely the EU, which is a community of laws and attaches fundamental importance to standing by agreements, will stick to its guns. It may just be that the government has finally been brought up against the contradiction between the terms of the protocol and the language used by the prime minister to sell it to his backbenchers and to the electorate. Or it may be that they really believe that leaving without a deal at all is just fine, in which case they (and we) are in for a nasty surprise.
The government uses the word sovereignty as a kind of ace of trumps, without seeming to understand how sovereignty is exercised in the world we live in. There are in that world over 190 sovereign states. If each and every one of those states were to exercise its sovereignty by overriding international obligations and rules they had freely entered into, where would we find ourselves? In total chaos; and standing amongst the ruins of the rules-based international order we prize so highly.
So, what is to be done about this pretty appalling mess which the government has manoeuvred the country into? Well the first thing surely is to pay heed to Denis Healey’s sage advice—when you are in a hole, stop digging. Better to shelve the Internal Market Bill for the meantime and to return with renewed determination to the negotiating table, with the aim of achieving a wide-ranging new relationship with the EU covering not only trade in goods but trade in services, scientific cooperation and innovation and close working on law enforcement and security; and, in parallel, to return to the negotiations in the Joint Committee whose task it is to settle the detailed application of the Northern Ireland Protocol.
It does need to be recognised that pressing on with unilateral decisions will only lead into a cat’s cradle of legal disputes and to the frustration of any hope for a fruitful new relationship. In other words it will lead to mutually assured damage.