The UK government is having a crash course in the strictures of international agreements. Last year No 10 panicked that it had signed up to unacceptable commitments and threatened to break international law rather than implement them. The offending provisions of the Internal Market Bill were eventually withdrawn after further talks with the EU, but not before the resignation of the government’s most senior legal official, who was later followed by the law officer for Scotland.
In the months since, there has been a new treaty with Europe on the future relationship. Yet with Brexit finally kicking in there is renewed protest and suggestion that we should terminate sensitive clauses (though not from the government—yet). Questions about how international law operates remain urgent.
To explore them I contacted Jonathan Jones QC, the first to step down during the IMB fiasco. As head of the Government Legal Department (previously the Treasury Solicitor’s Department) for six years up to that point, Jones was the most senior civil servant responsible for providing the government with legal advice, reporting to the Attorney General. He has since become a withering critic of government impropriety—including via a must-follow Twitter account. Over the phone on Monday we discussed the UK’s precarious reputation as a law-abiding country.
Starting with the ructions over the Internal Market Bill, Jones reflected: “I don't regret my own decision to resign, I don't think I had any option on it, given my own position very diametrically collided with that of the government.” He continued: “I think it was an extremely unwise, damaging, unprincipled decision that the government took, to legislate in a way that made it clear it was prepared to breach its international obligations under an agreement it had only just concluded.”
Arguably the episode betrayed a fundamental misunderstanding about how law works. The UK has a “dualist system” under which international and domestic law essentially operate at different levels. “When the government enters into an international treaty, that binds the state on the international law plain, and then it will be up to parliament to decide what the consequences are under UK domestic law,” in Jones’s paraphrase. This duality was relied on by Attorney General Suella Braverman in the government’s legal position at the time, which was that “Parliament is sovereign as a matter of domestic law and can pass legislation which is in breach of the UK’s Treaty obligations.”
But this is a hollow description, not a justification—international law still matters. As Jones put it: the government’s position “was that parliament was entitled, because of [its] sovereignty in domestic law, and because of the dualist system… to legislate in a way to set aside the Northern Ireland protocol as it did.”
“I think that misses the point. Of course, parliament can do that… But then by definition that would have placed the UK in breach of its own international obligations under the agreement. And it's no answer to that to say: ‘well, parliament has decided it's OK.’ On the international plain, the breach would still have been there and obvious.”
“You end up in a kind of hopeless circle: if you say it’s OK for parliament to set aside any international law obligations, it follows from that… that the government could get parliament to legislate tomorrow to breach the new EU agreement, and that that would be OK. And of course it wouldn’t be OK. It would be disastrous.”
The government threatening to break its word again would certainly be a disaster, but is it inconceivable? The withdrawal agreement and subsequent trade deal have consequences, but ministers have frequently avoided spelling them out. The Secretary of State for Northern Ireland has denied that there is a new border down the Irish Sea.
“Unfortunately, I don’t know whether it's dishonesty or whether it's just confusion, or lack of understanding about what the content of those obligations is,” said Jones. “What I’m afraid we're seeing is people just being blasé or inaccurate about what the agreement actually means. And that is definitely storing up trouble, because on one level, either you end up in the place where we ended up on the Internal Market Bill—of ministers effectively implying that they're prepared to ignore the bits of the agreement they don't like, which would be a very serious problem… or you have people basically being misled about what the agreement requires, or what it means. And then that will all be exposed.”
“And I think that's already happening. People [who were] led to believe that there'll be no border checks, or that trade will flow as smoothly as [it] did when we were in the single market, are learning that that's just not true. So you have a mismatch between the rhetoric and reality… and at worst, it implies a willingness of the government to somehow magic away the bits of the agreement that it no longer likes.”
Do we risk a repeat of the events of last year? A small number of MPs and peers have already recommended immediate termination of the NI protocol—by dubious legal means.
“Obviously there are now concerns about how the agreement is operating, especially in Northern Ireland but actually more generally, we’ve got protests from the fish exporters,” said Jones.
“There are mechanisms under both the Northern Ireland Protocol and the new Trade and Cooperation Agreement for raising concerns and for conversation to happen between the two sides, and ultimately for resolving disputes. I'm sure they are going to be used. And some of that is what you'd expect with a new, complicated agreement. If the government is saying it wants to use the mechanisms available to improve the operation of the new arrangements, then that would be perfectly understandable.”
However, “If the government were to be saying ‘it’s outrageous that the EU member states are now imposing checks’ and so on, of the kind they're perfectly entitled to impose, and that these are grounds somehow for the UK to walk away from the agreement, that would be pretty self-destructive... I hope that is not what is being said.” None of the various safeguard and consent mechanisms built into the two treaties with the EU would permit such a unilateral step.
Ultimately, “If the UK continually gives the impression that it's prepared to depart from its obligations when it decides they don't suit, that I would have thought is a terrible message to send to the EU and to every other partner, or potential partner.”
We are not there yet. Those calling for the nuclear option remain on the margins. It should stay that way. “We've been down that road once with the Internal Market Bill,” said Jones, “and I think that was damaging enough.”
