Writing About Breaking International Law

EdinburghEye on Ko-FiThis was first posted on Facebook on 11th September 2020, with support from my Ko-Fi network.

Let us consider where we are.

Boris Johnson is the Prime Minister and holds a 79-seat/bullet-proof majority in the House of Commons. He has made clear to his MPs that neither rebellion nor dissent are tolerated and he will remove the Whip – that is, make a Tory MP an Independent MP without a party – from any of his MPs who act in any way contrary to his instructions.

Boris Johnson has instructed his government to insert clauses into the Internal Market Bill which break international law. This has been publicly admitted to by several of his Cabinet ministers – not that Boris Johnson gave the instructions (it may have been Dominic Cummings, who knows) but that certain clauses in the Internal Market Bill do break international law, Ministers of the Crown know this, and they want this bill enacted even though it breaks international law.

Senior legal officers in the Civil Service have queried or challenged it: the most senior legal adviser to the government has resigned over it; the Secretary of State for Northern Ireland admitted it was law-breaking in the House of Commons.

Suella Braverman, Attorney General for England and Wales and Advocate General for Northern Ireland, defended the Internal Market Bill in a way that managed to completely miss the point, as the Professor of Public Law & Chair of the Faculty of Law, University of Cambridge, explains:

Mark Elliott, Professor of Public Law & Chair of the Faculty of Law, University of Cambridge, describes her statement as "utterly risible"“The Government’s statement is risible because it utterly misses the central point of concern. That concern is that the Internal Market Bill authorises Ministers to repudiate specific, critical and recently agreed legal obligations under the Withdrawal Agreement & NI Protocol.”

The EU has briefed its member states about its plans to respond to the UK should the UK break the law (noting that at the moment, these plans haven’t been enacted into law nor has any specific lawbreaking been committed, therefore there is nothing at the moment for the EU to respond to). Nancy Pelosi and Joe Biden have both committed that the UK will have no trade deal with the US if the UK breaks the Good Friday Agreement. Should the UK use these lawbreaking powers which Boris Johnson wants enacted, the UK will end up with no trade deal with the US or with the EU, and various other countries with which the UK wants to trade have expressed strong concerns about how to trust any agreement the UK makes if the UK feels free to unilaterally amend the agreement within the year.

David Mcallister, German MEP and Chair of the European Parliament Foreign Affairs Committee, tweeted on 10th September:

“The UKCG is deeply concerned by the latest developments around the future relationship between the #EU and the UK, in particular the tabling of the UK #InternalMarketBill. Pacta sunt servanda [agreements must be kept] is the basis for a trustful relationship.”

Merely enacting these clauses into law would have very serious consequences for the UK: actually making use of them would be catastrophic.

The UK’s Withdrawal Agreement with the EU – bear in mind, we have left the EU and are now a third country – allowed for a transitional arrangement to 31st December. This transitional period could have been extended by a request from Boris Johnson to the EU, and the EU had made clear well in advance they were minded to grant it, since – even pre-COVID – they didn’t think 11 months was sufficient time, and now we are in the middle of a global pandemic, they would have been very happy to extend simply so that all focus could be on dealing with coronavirus. But Boris Johnson didn’t ask for an extension, and the deadline is past: we exit the transition period on 31st December, and no one can do anything about that.

Boris Johnson agreed last December that to preserve the Good Friday Agreement indefinitely, regardless of any trade deal made between the UK and EU, Northern Ireland would be outside of the UK’s customs zone and in the EU’s: this would require a hard border for goods being sent from the island of Great Britain to Northern Ireland where none existed before. Companies and industries based in England, Scotland, and Wales – everything from Asda to Vodafone, any company that ships physical goods from Great Britain to Northern Ireland, will have to conform to EU legislation, and disputes will have a final appeal to EU courts, and further, there will need to be regulations about shipping goods from Northern Ireland to the rest of the UK. The Internal Market Bill legislates for all of that, and so it does need to be enacted into law by – or rather well before – the end of the year.

For the Tory MPs in the House of Commons, the choice is obvious. Aside from Theresa May, who is in the special position of not having to gfa what Boris Johnson wants her to say, all of them know that if they don’t vote for this bill as Boris Johnson has instructed, their careers as Tory MPs are over.

All of them will have been given the government’s self-serving excuse that they have no intention of using these powers unless the EU is unreasonable and the UK finds itself leaving the transition period with no deal. But, while using the powers would be catastrophic, even enacting them into law has serious negative consequences for the UK.

There is no halfway point for the Tory MPs under Boris Johnson: they either obey him unquestioningly, or they get rid of him. And they can get rid of him: 55 Tory MPs send in a letter of no confidence to the chair of the 1922 committee, 182 MPs vote against Johnson in the vote of no-confidence, and Johnson is out.

But, if they get rid of Johnson, someone has to be ready to replace him. Of course Michael Gove would be extremely happy to step up, but I somehow don’t think anyone would want him to apart from Gove himself (and Cummings, if Johnson really had been evicted).

Someone has to want to be Prime Minister instead of Boris Johnson. And at this time, no one does – not even Boris Johnson.

Everyone knows Brexit is going to be a horrible, horrifying mess. It would have been even without COVID-19 – with COVID-19, midwinter, it is clear it could be much worse. No Tory MP wants to be the Prime Minister stuck being responsible for that mess. I expect there are quite a few Tory MPs who were anticipating that Boris Johnson would resign early next year and they would then step up and get the credit for fixing everything before the general election in 2024.

And apparently, not even the negative consequences of enacting the Internal Market bill into law with the clauses that break internaional law, is enough to make any Tory MP stick their head over the parapet and declare willingness to sit down in the middle of the cross-fire.

The bill must pass the House of Lords. The single largest party in the House of Lords is the Conservatives, though if Labour and LibDem vote together they have the majority. (The Bishops, the Lords Spiritual, are a wildcard, but for various reasons they rarely speak or vote on secular legislation: the SNP don’t accept Westminster peerages as a point of principle.)

The House of Lords’ main function is to revise legislation from the Commons. While I oppose the principle of an unelected second house appointed by political favour, it is fair to admit that many peers take their role and responsibilities very seriously, and of course – that’s what life peer means – they can’t be stripped of their right to sit in the Lords or to vote on legislation, by anything less than major tax avoidance or a prison sentence. Boris Johnson cannot order Tory peers to vote as he directs, and if he tried, he’d get a faceful of ermine.

Amendments in the Lords come back to the House of Commons and the Commons accepts them or rejects them. In general principle, apart from some specific types of bill, the Lords can go on ping-ponging a bill back to the Commons with their own amendments until the two houses can agree on the bill or various constitutional time-limits – but none of the constitutional time-limits apply here, because there is a real-world hard deadline for enacting the bill into law – the end of the transition period, which no one now has power to extend.

There is an understood constitutional principle that it is not the role of the Lords to frustrate the will of the elected House, especially not when – as Brandon Lewis and Boris Johnson both made a point of – the bill is (or is asserted to be) a manifesto commitment. (Whether the bill is a manifesto commitment is extremely arguable, but all such arguments are pretty much irrelevant to the Commons if Boris Johnson says it is so and he has a 79-seat majority.)

I have no doubt that once the Lords have finished amending the Internal Market bill, Tory MPs will vote in lockstep to refuse the amendments the Lords have made, and that Boris Johnson has worked out a strategy for denying the Lords their right to keep reviewing the bill, which we’ll find out about when he does it. We know Johnson will do this, because we saw him doing this last year: his plan was to prorogue Parliament for five weeks, thus ensuring the UK would leave the EU in no-deal Brexit on 31st October by preventing the passage of legislation to force Johnson to send a letter requesting an extension.

This plan was frustrated by the UK Supreme Court ruling that while the Prime Minister decides when to prorogue Parliament, the PM cannot do so “if it has the effect of frustrating or preventing, without reasonable justification, the ability of Parliament to carry out its constitutional functions as a legislature”.

Johnson’s five-week prorogation of Parliament was *at the time he did it* in principle constitutional – it was an exercise of the PM’s Royal Prerogative and there was no specific limit then on how he could use it to shut down Parliament. The UK Supreme Court’s ruling made his prorogation unconstitutional, and therefore nullified it – business resumed as if there had been no prorogation.

I don’t know what Boris Johnson will do to get the Internal Market Bill enacted into law, but whatever he does will likely be technically within the rules as they currently stand, and I anticipate that it will be something along the lines of this being a manifesto commitment which the Lords have no right to frustrate – and his MPs will vote in agreement with his will.

Boris Johnson, it is quite clear, operates as Prime Minister, for the most part, by polling public opinion and doing what he thinks will make him popular, not by any firm policy position.

For example, the BBC has – apparently at the request of the Conservative government in Westminster – shut down the daily broadcast of the First Minister’s coronavirus briefings on BBC Scotland, because the contrast between Nicola Sturgeon’s clarity and consistency and Boris Johnson’s bumbling three-word-slogan rubbish makes Boris Johnson look bad, and we can’t have that, can we? (Seriously. The FM will continue to do her daily briefings, which will be available to anyone who can use online streaming, but the audience who basically doesn’t do online but switches on the BBC to get their news, will not be allowed to get a coronavirus briefing for Scotland, and the BBC says this is necessary for “consistency”.)

But, I strongly suspect that the Internal Market bill is not happening like this because Boris Johnson supposes it will make him popular. Certainly Brexiters are enthusiastically applauding what is claimed as a “hard-line stance with the EU” – give us the deal we want, or look what we’ll do – but Brexit itself is not a very popular position any more.

I think that Boris Johnson is doing this because he knows he must.

We have never had absolute proof that Boris Johnson, Michael Gove, and Dominic Cummings – the Vote Leave triumvirate – are definitely linked to Putin. True, Johnson has partied with ex-KGB agent and present Russian oligarch, Alexander Lebedev. And Steve Bannon claimed he helped Boris Johnson to write his resignation speech when he stepped down as Foreign Minister for the Conservative leadership election.

(Only two weeks ago, it was fascinating to me that in the US, Donald Trump and his staff had to expend much time assertting that Trump had minimal links to Bannon when Bannon was arrested and charged with fraud, while the media gleefully published all the details – whereas in the UK, the media politely kept quiet about Bannon’s links to Johnson and Vote Leave and Johnson never had to say anything either to deny the links or excuse himself.)

It’s possible Boris Johnson wants a deal with the EU and honestly thinks this is the best way of going about it. And it’s also possible that he doesn’t care one way or another about whether the UK crashes out of the transition period in no-deal Brexit because whatever happens, that’s not going affect him personally, and he’s confident he can make himself look good.

But we do also have consider as a serious possibility that Boris Johnson actively wants No Deal Brexit – not only to make his donors lots of money as they bet on the UK economy crashing, but because that is what he was put into power as Prime Minister to do.

I say this with reluctance because I don’t have a shred of evidence that isn’t circumstantial, and I don’t believe anyone else does. And I do still think it’s possible Boris Johnson is just acting out his script of the posh bumbler who’s standing his ground to fight for British sovereignity because he knows this line plays well with Brexiters. (I would certainly like to think so, because if so, Johnson can and will do a U-turn if this position becomes unpopular.)

And in a sense – it doesn’t matter. Whatever else Johnson is, he’s the Prime Minister and has a bullet-proof majority of MPs who know there’s no point in moderate rebellion: either they support him or they get rid of him. The date of the next general election is May 2024. We ourselves can’t vote Johnson out of power til then: only Tory MPs could do that.

We’re stuck with him. And, I think very likely, we’re going to be stuck with Internal Market Act 2020 which was known – admitted by the UK government – well before it became the law of the UK, to break international law.

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