The UK’s Latest Trick: “Breaking the Law in a Limited And Specific Way”

Photograph Source: Keith Hall – CC BY 2.0

Boris “BoJo” Johnson signed a Brexit Withdrawal Agreement with the EU that included state aid rules for Northern Ireland, in order to prevent the unfair dumping of UK goods into the EU, made possible by exploiting a “soft border” between the non-EU Northern Ireland and the EU-member Republic of Ireland.

The UK and EU agreed this should not lead to new checks or controls on goods crossing the border between the two parts of Ireland– this state-aid protocol was deemed the only way to avoid a “hard border” between the north and south of Ireland.

Also part of the Withdrawal Agreement signed by BoJo was the provision of controls on goods moving from Northern Ireland (NI) to Great Britain (GB).

As a result, NI will continue to follow EU rules on agricultural and manufactured goods, while the rest of the UK will not.

In addition, the whole of the UK will exit the EU’s customs union while NI continues to enforce the EU’s customs protocols at its ports.

The EU insists NI to GB goods-trade will require an administrative process known as an exit declaration— the EU imposes this on any goods leaving the EU for non-EU countries, and for trading purposes NI is basically a part of the EU, given the “soft border” it will share with the Irish Republic.

The fear among Tories regarding NI’s continuing to follow EU rules on agricultural and manufactured goods is that these rules would prohibit goods not meeting EU standards from entering NI. For example, under present Withdrawal Agreement terms, the UK’s imports of chlorinated chicken or hormone-injected beef from the US in a post-Brexit US-UK trade deal will not be allowed to enter NI because the Agreement requires NI to adhere to EU standards on food imports.

The UK government is now insisting it won’t accept a situation in which the UK is subjected to two somewhat disparate sets of trading regulations, one for NI, and the other for England, Wales and Scotland, though this is precisely what the Withdrawal Agreement stipulates!

The NI secretary Brandon Lewis let the cat out of the bag when he admitted that the internal market bill, intended to set unitary trade standards across the UK, breaks international law “in a specific and limited way”.

Reneging on the Withdrawal Agreement will necessitate the imposition of a “hard” border between the two parts of Ireland, thereby jeopardizing the Good Friday peace agreement that restored a measure of calmness to Ireland after decades of sectarian violence.

There is some evidence that BoJo had no intention of adhering to the Withdrawal Agreement.

The former UK ambassador Craig Murray has said that Johnson, when he signed the Agreement, thought of “agreeing a ‘backstop’ at that time to get Brexit done, but then not implementing the agreed backstop when the time comes due to ‘force majeure’”. Force majeure is a legal term designating unanticipated circumstances which might provide a legal basis for breaking a contract.

If Craig Murray is right, the Withdrawal Agreement was simply a ploy to win last year’s general election by convincing voters that BoJo would get Brexit done.

However there are no “unanticipated circumstances” where breaking the NI Protocol part of the Withdrawal Agreement is concerned. The implications of such a breach have been in plain sight all along. The consensus among lawyers specializing in treaties and international agreements is that such an invocation of force majeure is therefore a non-starter.

BoJo will be shredding a treaty aiming to protect the two parts of Ireland from the intrinsically damaging outcomes of the UK’s decision to leave the EU, the customs union, and the single market.

The EU had no option but to safeguard the interests of EU-member Republic of Ireland and protect its citizens by ensuring there is no “hard border” across Ireland.

BoJo, ever the chancer, and hoping to gull his pro-Brexit base, thinks he can blame the EU’s “intransigence” for not renegotiating the Withdrawal Agreement to suit his party’s hardliner Brexiters.

The Tory line—that the UK was merely breaking international law “in a limited way and specific way” in reneging on the Withdrawal Agreement— prompted hoots of derision on social media.

Only an idiot would try to coax their way out of a speeding ticket by using such claptrap to avoid being given a court date by the police officer issuing the appropriate charge.

BoJo’s law-breaking “in a limited way and specific way” balderdash split the Tories, who pride themselves on being the party of “law and order” (albeit with colossal doses of hypocrisy along the way).

The customary Tory mores turns an invariable blind eye to sneaky attempts at law-breaking, but a brazen upending of international law was a step too far even for usually complaisant Tories.

The senior law officer in Scotland, the Advocate General Lord Keen (a Tory) resigned, and the Justice Secretary Robert Buckland has not excluded his resignation over the plan.

A backbench Tory rebellion over BoJo’s proposed legislation, which BoJo survived last week, is under way, and his bill rejecting the Withdrawal Agreement will be brought back before parliament this week with some key changes to it in an attempt to placate restive Tory MPs.

It is not certain the revised bill will pass in the more independent-minded House of Lords, which can delay but not block it.

The UK will be in desperate need of trade deals with individual countries after it leaves the EU.

David Lammy, shadow Justice Secretary, a former barrister and the first black Briton to attend Harvard law school before becoming a Labour MP, criticized BoJo for resorting to the Trump playbook:

“The Conservatives have abandoned the rule of law, abandoning an international agreement which we signed up to just a year ago and then claiming as we go to negotiate trade deals with the rest of the world that they can’t see this. It’s a very, very curious position. I’ve never seen it in my lifetime”.

The UK’s cavalier repudiation of a rules-based international order, however fictive this order may be in practice, sends a signal of caution to potential trading partners wanting to sign a deal with the UK— BoJo will cast aside an agreement he’s signed as casually as he’s shed a string of mistresses.

Kenneth Surin teaches at Duke University, North Carolina.  He lives in Blacksburg, Virginia.