The withdrawal agreement debacle

The choice now cannot be between disaster or dishonour

After announcing that the British government was introducing legislation to override parts of the Brexit withdrawal agreement that it concluded with the EU last year, Boris Johnson told the Commons yesterday that this would provide

a legal safety net to protect our country against extreme or irrational interpretations of the protocol that could lead to a border down the Irish sea in a way that I believe, and I think Members around the House believe, would be prejudicial to the interests of the Good Friday agreement and prejudicial to the interests of peace in our country. 

In response to the objection that the Prime Minister had signed this agreement containing the wording of this protocol, his spokesman said the agreement was “not like any other treaty”. This was because it was sealed 

at pace in the most challenging possible political circumstances to deliver on a clear political decision by the British people and with the clear overriding purpose of protecting the special circumstances of Northern Ireland. It contains ambiguities and in key areas there is a lack of clarity. It was written on the assumption that subsequent agreements to clarify these aspects could be reached between us and the EU on the detail.

The previous day, when the storm over this broke, Boris Johnson was reported as being about to tell EU leaders that the Brexit divorce deal was “contradictory”. 

The Prime Minister believes the UK-EU  Withdrawal Agreement is legally ambiguous and would leave Northern Ireland isolated from the rest of the UK, something that was “unforeseen” when he agreed to it last year.

This is all quite stupefying. These “contradictory” ambiguities weren’t “unforeseen” at all. When the withdrawal agreement and its Northern Ireland protocol were agreed last October, it was obvious that this would leave the UK in permanent thrall to the EU after Brexit.

Indeed, at the time I was astounded that Boris had merely put lipstick on the pig – having achieved only a few improvements to Theresa May’s remain-by-stealth withdrawal bill that brought her down – and yet was being hailed as the saviour of Brexit. I wrote then

It’s basically a tweaked version of the May deal, which MPs on both sides of the Brexit divide said was so bad it would leave Britain worse off than being in the EU.

We were told repeatedly that the May deal was indeed so terrible it could not be renegotiated. It was more dead even than Monty Python’s deceased parrot. Yet Boris Johnson has renegotiated that deal. He has indeed achieved the impossible. He has produced the May deal mark four. He has put lipstick on the dead parrot.

As for protecting Northern Ireland, Nigel Dodds of the Democratic Unionist Party pointed out at the time that the withdrawal agreement “drives a coach and horses through the Belfast agreement” and “it was once said that no British Prime Minister could ever agree to such terms”. 

Yes, it’s true that the withdrawal agreement fatally undermines British sovereignty. Yes, it’s true it would keep the UK in thrall to the EU in perpetuity. Yes, it’s true that it puts a border down the Irish Sea and sells out Northern Ireland by effectively abandoning it to EU-unification within the island of Ireland.  

For Boris Johnson now to say he never foresaw any of this, or that there might be   “irrational interpretations” of the agreement, or that he only signed it because he was under pressure, is simply preposterous. He signed this agreement and at the time pretended it was something it was not.

What’s more, even so-called hard-core Brexiteers meekly went along with this travesty and connived at the falsehood that it would free the UK from EU control. Again, I wrote last October that these Brexiteers 

have been so spooked by the Remainer coup against the people that they believe the choice they face is between the Johnson deal and no Brexit. And in their emotional and panicky exhaustion, they are all-too susceptible to the Johnson spin that he is such an supremely Brexity prime minister he will die in the ditch to get Brexit done in a heroic stand against the Remainer parliament that is intent upon kicking the British people in the teeth…

And so… even the most Spartan Brexiteers seem unable to grasp that the Johnson deal is still a stinker. It would still trap the UK in a permanent state of vassalage – legal commitments with no power to change them – which these Brexiteers once rightly excoriated but now are prepared to endorse. They seem unable to grasp that no-deal is the only route to a clean and true Brexit, that a half-in, half-out Brexit would leave the UK worse off than remaining in the EU, and that therefore no Brexit is better than a bad deal.

Now these same hard-core Brexiteers (or at least, some of them) are claiming that the government’s proposed override of the withdrawal agreement wouldn’t break international law.

They are relying on the amendment introduced last year by Sir Bill Cash MP, which declared the supremacy of parliamentary sovereignty and enabled parliament to overwrite any part of the withdrawal agreement.  

But this was an amendment to the UK bill accepting the withdrawal agreement. It merely strengthened the UK’s obligation, under its own law, to uphold its own sovereignty. It did not enable the UK to negate any part of the agreement itself. Since that is an international treaty, it could not possibly have done so.

So the issue remains that the UK government is proposing a law which will give itself permission unilaterally to override elements of a treaty that it signed but which it has now decided it cannot live with.

Brexiteers argue the government is entirely justified in doing this because it’s the EU that’s effectively torn up the withdrawal agreement. In a detailed document produced in July, the Centre for Brexit policy argues:

Ultimately, by refusing to negotiate properly to deliver a sovereign future relationship agreement, the EU has not only breached a material provision of the [withdrawal agreement] but also failed to deliver on the condition upon which the UK entered into the [withdrawal agreement]. As such, the [withdrawal agreement] has been entered into by the UK on a false premise, making UK consent defective. The UK has a right to walk away.

It’s very likely that the EU is being obstructive and negotiating in bad faith, or has even tried to blackmail the UK — as the Sun claimed here. But the EU can justifiably say that the British government signed the agreement which includes the contradictions undermining sovereignty to which it is now objecting.

Unless it is somehow proven that the EU’s behaviour is in clear breach of the agreement, the UK will be judged to be breaking international law. Which, despite what the Brexiteers are saying, the Northern Ireland secretary Brandon Lewis admitted in terms that the UK is doing.

So what should the government do? Since it actually signed an agreement which would be ruinous to the country and would breach its pledge to deliver freedom from the EU, should it now just resign itself to accepting it – or should it pass legislation which breaks international law?

As with the coronavirus, there’s no good answer here but a choice between two bad things. The only right way to resolve this is to decide which is worse. 

The withdrawal agreement and NI protocol are immensely damaging for the UK in a myriad ways. The Centre for Brexit policy document sets out in agonising detail the fundamental threats to British sovereignty entailed by the “poison pill” of the withdrawal agreement, arguing that it should be superseded entirely by an act of parliament. Given the evidence, it’s hard to disagree.

Underlying this row, however, is a largely undiscussed conundrum. This is the existence of two kinds of law in potential conflict with each other: domestic UK law passed by the UK parliament, and international law. 

By international law, we mean what countries promise each other in the treaties they sign. Breaking those treaties is most certainly an act of bad faith. It is not, however, to “break the law” in the same way as breaking domestic law, because domestic law and international law involve two different concepts. 

In a democracy, a country’s citizens have a duty to obey domestic law. That’s because the law of the land is anchored in a democratic system reflecting the will of the people through the legislature they elect and the laws it passes. That’s why the domestic courts have unchallengeable jurisdiction to police those laws and punish those who break them.

International law, by contrast, is nebulous and contested. That’s because it is not anchored in any democratic jurisdiction. It is instead a theoretical construct created from — among other sources — a conceptual amalgamation of treaties signed between states. 

As a system of law, it therefore has a different status from domestic law. And in any conflict between international and domestic law, the concepts of democracy and national sovereignty mean domestic law must take precedence.

That does not mean that breaking a treaty obligation is good or desirable. It is not. It’s a serious breach of trust. It means other countries may never again believe a country is to be trusted when it enters into any treaty obligation. 

That’s clearly not at all desirable — although it can be agued that Britain and other countries have reneged on treaty obligations in the past without lasting damage to their ability to conduct further international agreements. But it’s also morally wrong. 

It’s very wrong to enter into a treaty obligation and then proceed to rip it up. All such obligations mean something and should be binding, just as in any contract. Breaking a treaty obligation is therefore bad. Essentially, though, it’s a breach of trust. That’s bad enough. But betraying the trust of the nation and falsely claiming to liberate it while ensuring its continued subservience is far worse. 

The overriding duty of a government is to act in the best interests of the nation at all times. But it also has obligations to its treaty partners. The honourable way through this problem may be, therefore, to override the withdrawal agreement and then make some kind of reparation to the EU in acknowledgement of this breach of trust.

One question remains perplexing. Why did the government declare in terms that it was intending to break international law? Normally, it would endlessly fudge this point. But Brandon Lewis, the minister, was reading from a government brief.

There have been suggestions that the whole thing was a negotiating ploy, a form of brinkmanship aimed at forcing the EU to agree to the UK’s terms in the free trade talks. 

Possibly. But perhaps Boris Johnson has realised that his crucial “red wall” voters just won’t put up with eventually discovering that, having betrayed their historic Labour party allegiance in order to be freed from EU control, the political hero who they believed was giving them that freedom had actually sold them down the river.

Unsurprisingly, Remainers have gone into orbit over the admission of breaking international law.  By definition, the concept of domestic law sovereignty is to them unimportant or meaningless. To many of them, it’s axiomatic that international law trumps domestic law. They parrot “adherence to the rule of law” without giving a thought to what this actually means or the ambiguities and contradictions entailed by competing systems of law. Nevertheless, not everything they’re saying about this should be dismissed as worthless. 

I have always been an uncompromising Brexiteer. I believed from the start that the only true Brexit would be a no-deal Brexit. I support walking away from these free trade talks with the EU. I support overriding the NI protocol and would like to see the whole withdrawal agreement abandoned.

At the same time, I cannot approve of the breach of trust involved in abandoning a treaty obligation. I also cannot approve of the extreme disingenuousness, sophistry and absurdity of the government’s justification for doing so.

I believe that, in the interests of the UK, it has no alternative but to do so. But it should be honest about what’s happened. Boris Johnson should own up to the fact that he made a bad mistake and has now had second thoughts, for which he takes personal responsibility and is prepared to make reparations.

The alternatives are either disaster or dishonour for the country. 

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