The UK government has admitted it intends to break international law, thereby adopting a ‘mad man’ rollercoaster strategy for the end phase of the Brexit negotiations. However, Brigid Laffan‘s advice for Boris Johnson is: don’t take the EU on in Lawfare.
The week beginning the 7th of September 2020 was one of the most dramatic weeks in the lengthy Brexit negotiations as the UK seeks to disentangle itself from the EU. Having achieved political Brexit on January 31, the UK and EU future relationship negotiations must finish by or close to the end of October if there is to be a deal in time for January 1, when economic Brexit happens. Last week, with time in short supply, the Johnson government opted for a ‘mad man’ rollercoaster strategy for the end phase of the negotiations.
Effectively the Internal Market Bill published on 9th September, drove a coach and four through the Withdrawal Agreement (WA) which was accepted by Johnson, inserted into the Conservative Manifesto for the December 2019 election and subsequently ratified by this Parliament. If the UK wanted to attack the DNA of the EU and its value system while still negotiating with it, London could not have touched a more sensitive nerve.
There was no attempt to disguise what the Johnson government was doing; Brandan Lewis, Secretary of State for Northern Ireland said in the House of Commons that the bill does ‘break international law in a specific and limited way’. The resignation of a senior law officer lent credence to the view that the Johnson Government was intent on breaching international law, in this case, the WA.
There is much speculation about why Johnson opted for this strategy that I will not address other than to say that the justifications are risible but the claim that it is to protect the Good Friday Agreement (GFA) is grotesque. That the justifications come from English politicians who have rarely if ever visited the island of Ireland just adds to the insult.
As the events of the week unfolded, Brussels was confronted with the reality that the UK was intent on taking it on in ‘lawfare’ which led to a flurry of activity in Brussels and the capitals, especially Dublin. How to respond? One option was simply to suspend the negotiations on the Future Relationship but this would feed the blame game so prominent in London and EU is determined not to play Johnson’s game. That said, the EU takes ‘lawfare’ very seriously.
Once the Internal Market legislation to be published the EU immediately asked for a meeting of the EU-UK Joint Committee, the governance arrangement for the WA, chaired by Michael Gove and Commission Vice-President Maroš Šefčovič. Exceptionally all 27 member states joined the meeting which underlines the salience of recent developments. In its statement following the meeting the EU left no doubt about the gravity of the situation by using language such as the ‘EU’s serious concerns’, ‘no uncertain terms’ and violations of the WA that would ‘undermine trust and put at risk the ongoing future relationship negotiations’. As the WA came into effect on February 1, the EU reminded the UK that ‘neither the EU nor the UK can unilaterally change, clarify, amend, interpret, disregard or disapply the agreement’. The EU has now asked the UK to withdraw the problematic measures by the end of September. The Union is buying time and allowing the UK to find a way out of this if it so wishes.
Further Pressure on the UK came when the European Parliament Group Leaders and members of the UK Coordination Group, the group following the Future Relationship negotiations, who collectively said that ‘Should the UK authorities breach – or threaten to breach – the Withdrawal Agreement, through the United Kingdom Internal Market Bill in its current form or in any other way, the European Parliament will, under no circumstances, ratify any agreement between the EU and the UK’.
The response in Dublin to developments has ranged from fury to disbelief but also a determination that the stability of the island of Ireland will not be collateral damage in Johnson’s search for a hard Brexit. Nor will the UK government be allowed to renege on its legal obligations under the WA. To ratchet up the pressure, Dublin played the American card as one senior democrat after another, notably Nancy Pelosi House Speaker and Richard Neal, Chair of the powerful Ways and Means Committee, reinforced the message that there will be no US trade agreement if the UK undermines the GFA by not adhering to the WA.
The EU will not agree on a deal on the Future Relationship if the UK persists with the problematic measures in the Internal Market Bill. Consequently, developments in London have greatly increased the risks of no deal at the end of the year with all of the consequences that flow from this for both sides. Even if the government decided to fashion an agreement, the European Parliament would not ratify it. If no deal results from the deliberate breaking of the WA, the EU will be less inclined to take unilateral action that would mitigate the worst effects of no-deal disruption. Moreover, the UK’s obligations under the WA are not contingent on there being a deal. The EU will immediately trigger the compliance provisions of the WA and the issue could end up before the European Court of Justice if not settled elsewhere.
Whatever lies behind the Johnson strategy of openly breaching international law, it is a risky strategy for a country that will be on its own in an international system undergoing a major structural transformation. The EU is not just a values project but a power project and as the law is one of its main sources of power, the EU will never give into a UK government that so openly breaks the law. As for the consequences for the island of Ireland, it will destroy trust in the UK, so painfully built up over decades of violence and will resonate with earlier and darker periods of British-Irish relations. London has some serious choices to make over the next months.
This article gives the views of the author, and not the position of LSE Brexit, nor of the London School of Economics.
It is laughable to claim that Ireland’s “trust in the U.K.” will be destroyed. The Irish will forever have a giant chip on their shoulder about real and (more often) imaginary wrongs perpetrated by the English (not Scottish or Welsh of course). Whenever their bluff is called they cry to mummy i.e. US Democrats.
You seem to have been triggered.
«The Irish will forever have a giant chip on their shoulder about real and (more often) imaginary wrongs perpetrated by the English»…
For your personal enlightenment, just one case in point: The Potato Famine.
“The Irish will forever have a giant chip on their shoulder about real and (more often) imaginary wrongs perpetrated by the English”
Obviously, you are projecting.
Johnson’s friends what to be able to import chlorinated chicken and other gastronomic atrocities into the EU. The “Internal Market” legislation is his device for doing this. Once accepted, the only way of stopping such goods from leaving the UK and entering the EU will be border checks _on the Irish side of the border_.
At a stroke Johnson exports the Northern Ireland Agreement for his benefit.
You didn’t see this?
For “exports” please read “exploits. Apologies.
Spectacularly ill-informed comment John. The UK invaded Ireland, suppressed it’s population, culture, language, committed acts of depravity which resulted in the death of anything up to 2m people. They did the same in Scotland, India, South Africa, the Middle East, Australia and the Far East. And you’re proud of that.
How did you avoid contact with any tiny item of history which might have informed your empty brain? Your Gov is breaking the law. The UK, that paragon of international probity, acting like a South American despot. You probably think that’s great which would nicely confirm the depth of scumbaggery in your head.
An excellent response but for one small factual error. It is impossible for the “UK” to have invaded Scotland.
Other than that, spot on.
The reason Ireland were so involved in the WA was for this exact reason, English politicians are not to be trusted. Some in Europe thought the Irish were overly dramatic but as Perfidious Albion lives up to its name Dublin has a major case of “I told you so”. They will cry to mummy alright and she has a large wooden spoon.
Let’s try to cool it folks. I think this morning the Government must be suffering a major case of indigestion. The Miliband speech was devastating, I suspect no Prime Minister has been so humiliated in the Commons since Neville Chamberlain in the 1940. (Though I must admit to not remembering that far back.) Boris Johnson must have felt like he was back at Eton being told off by the beak (or “teacher” in normal English), all he could do was grin and keep his mouth shut.
I think it likely that the controversial clauses in the Internal Market Bill are going to get shelved. I find it hard to see how they are going to get through the Lords. Boris Johnson probably feels committed by promises he made to the ERG to make a go of it, but it seems at least possible that, after a couple of rounds of parliamentary ping-pong, if not earlier, he will cave in, and international law will be preserved. I hope so.
Give the EU 12 months notice of terminating the WA as per the Vienna Convention art.56 then apply the WTO security exemption xxi at the end of the notice period to ensure that there isn’t a need for a hard border.
Just delays total freedom from the EU for a few months
“Give the EU 12 months notice of terminating the WA as per the Vienna Convention art.56” It’s a nice idea. but Article 56 of the Vienna Convention only seems to apply where either the parties “intended to admit the possibility of denunciation or withdrawal” or else “A right of denunciation or withdrawal may be implied by the nature of the treaty.” https://treaties.un.org/doc/publication/unts/volume%201155/volume-1155-i-18232-english.pdf Article 56 does not give a country the right to get out of any treaty it doesn’t like.
There is however a perfectly legal way to exit the Northern Ireland protocol. This is for the Northern Ireland Assembly to refuse consent near the end of 2024, then Northern Ireland will exit the protocol at the end of 2026. Or at least that’s my reading of https://www.instituteforgovernment.org.uk/explainers/brexit-deal-northern-ireland-protocol . I think that should really be enough. If Brexit is a big success story on the island of Great Britain, then the Northern Irish themselves can decide to join in; all that is required is patience.
The recent court case against the British Home Office which contested the UK state demand that any Irish N.I. citizen must relinquish their nationality and forcibly become British in order to access their full civil and human rights here, brought and finally won by N.I. Irish citizen Emma de Souza in August, is an example of just how perfidiously successive British governments have been behaving in regard to the civil and human rights of all N.I. citizens.
We here, unlike UK citizens living in GB, have yet to be gifted the protection of even a basic human rights bill. There is similarly no equivalent freedom of speech for journalists here. There are more peace walls now than during the UK’s counterinsurgency Operation Banner (1969-2007). The criminal paramilitary gangs, the armed wings of Sinn Fein and the DUP, originally genned up and funded by the UK for intelligence purposes continue to violently control communities with impunity and these intelligence assets continue to be given full protection from local police prosecution.
Further to this, now innocent civilian victims of British state atrocities committee here who have been waiting tor decades for truth and justice have effectively been told to just shut up and go away, and Brandon Lewis adding insult to injury has recently all but gifted full amnesty to any criminal rogue British state operatives.
Any Brexit talk about Ireland losing trust in the British ruling class is a joke in bad taste.
The terrifying truth for all here is that this UK internal markets Bill constitutes an extreme British unionist power grab in regard to N.I. It effectively trashes the WA and with it any possibility of retaining the promise that the UK government would finally deliver, after fifty years of activism and conflict here, equal civil and human rights and parity of political esteem to ALL of us living in N.I.. Now THAT is where the real threat is coming from.
“the armed wings of Sinn Fein … originally genned up and funded by the UK for intelligence purposes”.
Tell me more. This would be of interest to UKLF too.
“If Brexit is a big success story on the island of Great Britain” it is very probable that at the same time the Law of Gravity will be suspended, time will start to run backwards, and the ‘Second Coming’ of Christ will have happened. All of which will in any case nullify the ‘need’ for Brexit.
Hi Jams, I think I share many of your misgivings about Brexit, but my post from September 16, which I think you were replying to, was directed at those who believe in it. Of course if on the contrary the laws of gravity (physical or economic) are not suspended and Brexit turns out not to a big success story, then the problem is not forcing NI to join in, but getting the rest of the UK to rejoin before certain rebellious elements North of Berwick break it up. But there perhaps you see things slightly differently 🙂