When Dominic Raab next denounces China for its oppression of the Uighurs, or the police move to disperse a Group of Seven, or Robert Buckland says that the law must be obeyed, will the response be pleas of “difficult and highly exceptional circumstances“?
In one sense, Boris Johnson’s intention of tearing up part of a treaty he signed less than a year ago shames almost the entire right of British politics – from the Prime Minister himself through MPs and media to Nigel Farage, all of whom, to a greater or lesser degree, threw their weight behind the Withdrawal Agreement that he agreed.
Some of these had reservations about parts of it. But none seem to have spotted the potential leakage of EU state aid rules from Northern Ireland to Great Britain, including the Government’s negotiators. This site has always treated with contempt those who claim that the UK “isn’t a serious country”. Maybe we should think again.
In another sense, though, this isn’t Suez or the Winter of Discontent or the ERM – far from it. We don’t know what Dominic Cummings’ focus groups make of the Government being prepared to break international law. But our best guess is that its members would shrug their shoulders, and point out that other countries do so all the time.
That may be an ignoble response, but it would put last week’s events in political proportion. Most voters will be far more engaged with Johnson’s severe new Coronavirus rules, and the media has been faithfully reflecting their preoccuptions. In much of provincial England, this contretemps won’t even have registered.
Furthermore, Conservative MPs, as they prepare to debate the UK Internal Market Bill, which contains the controversial clauses, will doubt whether these will ever be enacted. After all, they are a Government safeguard in the event of No Deal. But a deal is still possible, if not probable – if not likely.
They will also feel that the Commons shouldn’t do anything that might help the EU and harm the UK during this crucial negotiation. Many newly-elected ones in Red Wall seats will also believe, rightly, that Johnson got them elected last December, and that they owe him a special loyalty.
But as they mull all this, they will be puzzled by a question that haunts the whole dispute: would the UK really be breaking international law were the relevant clauses in the Bill ever triggered? The Prime Minister claims that the EU has threatened a food blockade of Great Britain. David Frost backed him up on Twitter yesterday.
If so, such action would itself breach WTO rules, and therefore international law, too. Meanwhile, the EU’s readiness to impose tariffs between Great Britain and Northern Ireland is, as Unionists see it, a breach of the commitment to uphold the Belfast Agreement contained in the Northern Ireland Protocol.
Which implies that the Government believes that the EU isn’t negotiating in good faith, as the Withdrawal Agreement obliges it to do. So be it. In which case, why not wait until the negotiation collapses, and argue that it’s the EU – not the UK – that’s broken international law?
More in sorrow than in anger, Johnson would then be able to pin the blame on the EU, or try – and bring in a short Bill containing the controversial clauses of this week’s Bill to protect Britain position. He would also assert that these were justified by the safeguarding measures set out in Article 16 of the Protocol.
The dispute would then go to arbitration. Why instead did the Government present Britain last week as the first potential movers in breaking international law? Why cast the UK as the bad guys? No wonder Conservative MPs have formed a new WhatsApp group called “what the f**k is going on”?
They will be asking some hard questions. How come Ministers’ willingness to break international law was sprung with no notice – in response to an oral question? Why put Robert Buckland in a position where he felt he had to say that he will resign if “the rule of law is being broken in a way that I find unacceptable”?
Why has the Government been so slow to brief a defence for its position, thus playing off the back foot for the best part of a week? Admittedly, its evidence that other liberal democratic governments have acted in a similar way seems a bit thin to us. There is Australia and asylum seekers; Canada and cannabis.
Lord Keen, the Government’s Lords Justice spokesman, said last week that the Human Rights Act contains provision for statements of incompatibility with the Act in relation to legislation. These, if issued, would be in breach of international law. He said Labour issued one in 2002. That sounds more promising for the Government’s case.
And we are puzzled by Ministers not making hay with the EU’s own breaches of WTO rules, and thus of international law too. As Peter Marshall never tired of pointing out, its interpretation of Article 50, which separated out the Withdrawal Agreement from trade talks, can also be held to be a breach of that law.
What should Tory backbenchers make of all this? We believe that the UK should not be the first party in a dispute to break international law – let alone present itself in that light. So the least bad way forward now is for MPs to vote for amendments which would guarantee all MPs rather than some a vote on any triggering of the contested clauses.
This would send a message to three audiences. First, to the courts: that any triggering would be the intention of the whole legislature. Second, to the Government: that it has bungled by casting the UK as a villain – and that, worse, its pre-election predecessor cocked up the state aid part of the negotiation, leaving us open to the ECJ.
Finally, to the EU. There can be no doubt that, if the negotiation collapses, and the Government then asserts that the EU has acted illegally, this Commons, with its Conservative majority of 80, would then swiftly vote to implement the contested clauses of this Bill.
In sum, we believe that countries will sometimes be accused of breaking international law. If the UK eventually finds itself in that position by triggering these clauses, so be it. But it has been baffling to see the Government playing into the hands of the EU by casting itself as a law-breaker when its own version of events suggests it isn’t.