Asked by his Tory colleague Sir Bob Neill for
assurance that nothing in the internal market bill being published on Wednesday
would breach international legal obligations, Brandon Lewis admits: 'Yes, this
does break international law in a very specific and limited way'. The Northern
Ireland secretary was answering an urgent question in the Commons about the
Northern Ireland protocol
Northern Ireland Secretary admits new bill will
'break international law'
https://www.bbc.com/news/uk-politics-54073836
A
government minister has said a new bill to amend the UK's Brexit deal with the
EU will "break international law".
Concerns
had been raised about legislation being brought forward which could change
parts of the withdrawal agreement, negotiated last year.
Northern
Ireland Secretary Brandon Lewis conceded it would go against the treaty in a
"specific and limited way".
Former PM
Theresa May warned the change could damage "trust" in the UK over
future trade deals with other states.
The
permanent secretary to the Government Legal Department, Sir Jonathan Jones, has
announced he is resigning from government in light of the bill, making him the
sixth senior civil servant to leave Whitehall this year.
Sir
Jonathan, who is the government's most senior lawyer, is understood to have
believed the plans went too far in breaching the government's obligations under
international law.
Labour
leader Sir Keir Starmer condemned the bill and accused No 10 of "reopening
old arguments that had been settled", saying the "focus should be on
getting a [trade] deal done" with the EU.
No 10
revealed on Monday that it would be introducing a new UK Internal Market Bill
that could affect post-Brexit customs and trade rules in Northern Ireland.
Downing
Street said it would only make "minor clarifications in extremely specific
areas" - but it worried some in Brussels and Westminster that it could see
the government try to change the withdrawal agreement, which became
international law when the UK left the EU in January.
The row
also comes at the start of the eighth round of post-Brexit trade deal talks
between the UK and the EU.
The two
sides are trying to secure a deal before the end of the transition period on 31
December, which will see the UK going onto World Trade Organisation rules if no
agreement is reached.
Irish
Foreign Affairs Minister, Simon Coveney, called Mr Lewis' comments
"gravely concerning", adding: "Any unilateral departure from the
terms of the withdrawal agreement would be a matter of considerable concern and
a very serious step."
The UK's
chief Brexit negotiator, Lord David Frost, called for "realism" from
his EU counterparts, saying he would "drive home our clear message that we
must make progress this week if we are to reach an agreement in time".
The EU said
it would "do everything in [its] power to reach an agreement" with
the UK, but "will be ready" for a no-deal scenario.
On Monday,
Boris Johnson said if a deal hadn't been done by the time the European Council
meets on 15 October, the two sides should "move on" and accept the
UK's exit without one.
Shadow
Northern Ireland secretary, Louise Haigh, said it was "deeply
concerning" that the prime minister "appeared to be undermining the
legal obligations of his own deal" with the introduction of the new law
while the negotiations are taking place.
'Rule of
law'
The text of
the new bill will not be published until Wednesday, although the government has
confirmed it will deal with the issue of the so-called Northern Ireland
Protocol - an element of the withdrawal agreement designed to prevent a hard
border returning to the island of Ireland after Brexit.
The
practicalities of the protocol - which will deal with issues of state aid
(financial support given to businesses by governments) and whether there needs
to be customs checks on goods - is still being negotiated by a joint UK and EU
committee.
But Mr
Lewis said the bill would take "limited and reasonable steps to create a
safety net" if the negotiations failed.
Speaking
during an urgent question on the bill, chair of the Justice Committee and Tory
MP Bob Neill said the "adherence to the rule of law is not
negotiable".
He asked Mr
Lewis: "Will he assure us that nothing proposed in this legislation does
or potentially might breach international obligations or international legal
arrangements?"
The
Northern Ireland secretary replied: "Yes. This does break international
law in a very specific and limited way."
He said the
government was still working "in good faith" with the EU joint
committee to overcome its concerns for the future of trade in Northern Ireland,
but said there was "clear precedence for UK and indeed other countries
needing to consider their obligations if circumstances change".
Sir Bob
later told BBC Radio 4's PM the decision was "troubling", adding:
"Britain is a country which prides itself on standing by the rule of
law... whether it is inconvenient or convenient for us.
"Whatever
we seek to do, if we find something we signed up to 'inconvenient', I am afraid
this doesn't mean we can renege on our contract... as that would damage our
reputation long term."
This was an
extremely unusual statement - a minister standing up in parliament to say the
government is planning to break international law.
Brandon
Lewis told the House of Commons that "there are clear precedents for the
UK and other countries needing to consider their international obligations as
circumstances change".
That may
suggest, says Catherine Barnard, Professor of Law at the University of
Cambridge, that the government is looking at Article 62 of the Vienna
Convention on the Law of Treaties, which enables a state to get out of its
treaty obligations when circumstances change radically.
But those
changed circumstances have to be pretty dramatic - something like the
dissolution of Yugoslavia, when a recognised country ceases to exist.
In the case
of the Northern Ireland Protocol, it is less than a year since the government
negotiated the treaty in full knowledge of the sensitivity of the situation.
And if the
government does go ahead with legislation which appears to contradict the
withdrawal agreement?
"There
is a chance," says Prof Barnard, "that the EU will decide to trigger
the dispute resolution mechanism in the withdrawal agreement, which could lead
to arbitration and a case before the European Court of Justice."
Theresa May
- who stood down as prime minister last year after her own Brexit deal failed to
get the support of Parliament - said: "The United Kingdom government
signed the withdrawal agreement with the Northern Ireland Protocol.
"This
Parliament voted that withdrawal agreement into UK legislation. The government
is now changing the operation of that agreement."
"How
can the government reassure future international partners that the UK can be
trusted to abide by the legal obligations of the agreements it signs?"
The leader
of the Liberal Democrats, Sir Ed Davey, also called it a "sad and shocking
state of affairs for our country".
Sammy
Wilson, who acts as Brexit spokesman for the Northern Irish Democratic Unionist
Party, said he was "pleased" to have the new bill that could deal
with some of the issues that could affect his constituents - such as state aid
and customs checks.
But he said
the DUP had "warned ministers of the impact of the withdrawal
agreement" early on, saying it was a "union splitting, economy
destroying and border creating agreement that has to be changed and
replaced".
He added:
"We will judge this bill on whether it delivers on these kind of
issues."
However,
Claire Hanna, a Social Democratic and Labour Party (SDLP) MP for Belfast South,
said the protocol was "a symptom… of four years of terrible political
decision making".
She added:
"It is now the law. This government is obliged to implement it in
full."
She also
"cautioned" Mr Lewis "not to use the threat of a border on the
island of Ireland or the hard won impartiality of the Good Friday Agreement as
a cat's paw in this or any other negotiation."
But former
Conservative leader, Sir Iain Duncan Smith, said the act that brought the
withdrawal agreement into law in the UK allowed the government to "reserve
the right to make clarifications under the sovereignty clause".
Mr Lewis
agreed, saying the law would "clarify... the points about what will apply
in January if we are not able to get satisfactory and mutually suitable
conclusions" in negotiations.
He added:
"It is reasonable and sensible to give that certainty and clarity to the
people and businesses of Northern Ireland."
The days could be numbered for Boris Johnson's
Trump tribute act
Rafael Behr
If the president fails to get re-elected, Britain
would be isolated as the only democracy practising tantrum diplomacy
@rafaelbehr
Tue 8 Sep
2020 16.45 BSTLast modified on Tue 8 Sep 2020 17.12 BST
As on many
subjects, Boris Johnson sounds different when talking to different audiences
about Donald Trump. In 2015, as London mayor, he accused the then Republican
candidate of “quite stupefying ignorance”, for saying that the city was
blighted by Islamist-controlled “no-go areas”. Trump was “frankly unfit to hold
the office of president of the United States”.
Two years
later, as foreign secretary, Johnson’s position had evolved somewhat. He told
the US ambassador that President Trump was doing “fantastic stuff” and “making
America great again”. In a meeting of British business leaders in July 2018,
Johnson recognised that Trump showed signs of madness, but admired the method
in it. He pondered how effective the approach might be if applied to Brexit:
“There’d be all sorts of breakdowns, all sorts of chaos … But actually you
might get somewhere.”
That
influence is now on display in the proposals to renege on parts of last year’s
Brexit withdrawal agreement, which by the government’s own admission involve
breaches of international law. Some ministers revel in the image of Britain
flinging shreds of a deal they never loved into European faces. Others, though,
still care about the country’s reputation as a law-abiding member of the
treaty-honouring community. The threat to that status triggered the resignation
of Jonathan Jones, the most senior official in the government’s legal
department.
The full
extent of Johnson’s appetite for Trumpian chaos is hard to know because he
believes many opposing things at the same time and is congenitally indecisive.
Inside City Hall, he had a reputation for agreeing with people who gave
contradictory advice in successive meetings. The trick was to be the last
person in the room with him before a decision had to be taken. Some of the
fiercest battles inside No 10 are for that privileged position.
Johnson
admires the effectiveness of Trump’s mania, but copies it in spasms, lacking
the temperament to emulate it full-time. People who have known the Tory leader
for years insist that the persona he adopted to win elections as mayor of
London – the metropolitan liberal at ease in the multicultural capital – is
closer to his true identity than the chest-beating populist who trawls for
votes with Nigel Farage.
That may be
so, but there is no electoral bridge back to the London-friendly version of
“Boris”. That guy would have been a remainer. The government’s majority was won
by his hardline Brexiteer incarnation.
The legacy
of Farage is instructive when it comes to the relationship with Trump. In both
cases, the issue is as much stylistic as ideological. Conservatives were
jealous of support that the former Ukip leader kept poaching from them. Mostly
they wanted the same destination – total separation from the EU. But they
didn’t want to have to sound like Farage, or keep the company he kept, in order
to get there.
A man such
as Jacob Rees-Mogg, for example, does not wish to be seen as a common
nationalist, but something more high-minded: a sovereigntist. He likes the
votes that Farage’s methods bring in, but he wants them delivered to the
tradesman’s entrance.
Johnson’s
liberal friends claim he was uncomfortable with some of the anti-immigration
rhetoric deployed by leavers in the referendum. Not too uncomfortable, though.
He rode Farage’s tiger all the way to No 10. Vanity and snobbery prevent him
from acknowledging the debt.
Likewise,
Downing Street is coy about praise from Trump, who hails Johnson as a fellow
traveller and sees Brexit as the twin project to his own presidency. The
cultural affinity is strong enough. As campaigns they mined similar grievances,
probed parallel divisions. In government they have a common ethos of ripping up
rules, ignoring constitutions and burning old alliances. But to Tory eyes the
Trump model is vulgar: too brash, too American. Britain prefers its nationalism
dressed in genteel hypocrisy.
There is
also a practical problem in Britain’s proximity to the rest of Europe. No
amount of Brexit hot air can inflate the UK into a free-floating continent,
equal in stature to the US or China.
In terms of
economy, population and geography, our strategic peers are France and Germany.
The alliance we had with our neighbours, embedded in a dominant trio within the
EU, had the effect of enhancing Britain’s global power. When the US president
does something outlandish, his office exerts the gravitational field of US
power. The rest of the world has to bend. That is not true of Downing Street.
Johnson is
still at the stage of quitting his European band and dreaming of a glittering
solo career. But the international scene is a tough gig for a bumbling English
Trump tribute act. And the bottom falls out of that market if the original
Trump fails to get re-elected in November.
President
Joe Biden would be in the business of restoring the US’s credentials as a
responsible actor on the global stage. He would discontinue the current White
House policy of spite towards the EU. His victory would signal a recovery for
the grownup way of doing things, leaving Britain isolated as the only democracy
practising tantrum diplomacy. Johnson would be forced to moderate his temper.
The
opposite pertains if Trump defies current polling and wins a second term. A
lesson that Downing Street would take from such a comeback is that doubling
down on incendiary rhetoric works; that the limit of decency defined by
constitutional lawyers is a laughable fiction; that the anguished cries of
liberals herald success; that elections are won through perpetual culture-war
provocation. Any doubts Johnson might have about that approach would be
discarded as casually as every other scruple he claims to have known.
It is a
truism of American elections that the rest of the world has a stake but not a
vote. This time, the stakes are highest for Britain. The ballot cannot effect
regime change in Westminster, but it can confirm or spoil the calculations on
which that regime operates. The personality of the next US president will
dictate the direction of the UK government and the character of the prime
minister.
• Rafael
Behr is a Guardian columnist
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