This is not the British government’s finest hour.
Its plans to introduce the Internal Market Bill arguably breaks international law and renders void, under certain given circumstances that have not yet materialised, certain parts of the Northern Ireland Protocol that was agreed between the UK and the EU only months ago.
As a result, it has triggered the resignation of two senior law officers and threatened a backbench rebellion that now seems to have been quelled through compromise.
What is surprising is the outraged reaction from the EU. Sadly, breaking international law is not uncommon and the EU itself is no stranger to it.
For years the EU has ignored WTO rulings on GMOs and hormone treated beef. The Court of Justice of the European Union has, at least twice, ruled that the EU does not have to follow international law – once in the context of WTO law (Portugal v Council) and once (the Kadi-Barakaat case) actually ruling that the EU should ignore the UN Charter – the highest order of international law – if it conflicts with the EU’s internal structures.
Neither does the EU abide by its own internal treaty obligations. When France or Germany broke treaty commitments in terms of deficits and debt levels, nothing happened. When Poland and Hungary undermine the very rule of law within the EU, there is much talk and zero action. Whether the European Central Bank is currently operating within the constraints of the treaties is up for debate.
And the EU is not alone. China repeatedly breaks international law – in the South China Sea, in its treatment of Uyghurs, in not abiding by WTO rules, in Hong Kong, etc., etc., etc. Yet the EU puts renewed energy into an EU-China trade deal.
Israel has for years lived in contravention of international law with its West Bank settlements. Yet the EU carries on normal relations with Israel.
And on it goes.
None of that is to say that the UK is justified in its attempt to walk back from its Protocol commitments. Just that the EU is in no position to adopt the moral high ground.
That this spat is happening is unsurprising.
It was obvious at the time that the Withdrawal Agreement was signed that Boris Johnson was promising mutually incompatible things to different people. The Northern Ireland Protocol was not something that he or many in his government were happy with. But the Prime Minister’s personality is such that he probably signed the agreement in the belief that, somehow, there will be a way round the inconvenient bits. But that was a battle for another day.
That day has now come – though it did not need to. There are many steps that need to be taken before the stage is reached when the internal cohesion of the United Kingdom becomes threatened under the sometimes conflicting terms of the Protocol. The UK government could have waited until all remedies had been exhausted before making its move. The intent, I believe, was to make it clear to EU negotiators in which direction it would be heading if the negotiations fell apart. It thereby hoped, in the precious few weeks left, to inject fresh impetus into the negotiations. Whether that will work or be counter-productive remains to be seen. We should not judge the ultimate outcome by the pronouncements made in the newspapers.
In evaluating the Brexit process, we could do worse than heed the words of John Maynard Keynes. In the 1930s he wisely warned that countries should be careful about becoming excessively entangled with each other. Yet he also advised that “those who seek to disembarrass a country of its entanglements should be very slow and wary. It should not be a matter of tearing up roots but of slowly training a plant to grow in a different direction.”
If we were to follow such wise counsel, the Brexit process would be a multi-year process of slow disentanglement. But neither side can likely make that work.
Boris Johnson believes that such a measured process would be politically untenable. That he would be pilloried by many in his own party and in the country for failing to ‘Get Brexit Done’. He’s probably right. The prospect of dragging the whole thing on and on fills many with dread.
The EU would likely not object to a much more prolonged process – it was ready to extend the transition period. But it is doubtful whether the intent would be to operate in good faith to find ways in which the UK could truly disentangle itself as painlessly as possible for both sides; or whether the underlying aim would be to keep the UK within its orbit of influence (and making financial contributions) for as long as possible and ensure that there are visible negative consequences for a country that dares to walk away from a bloc membership of which is supposed to be willingly given.
The Brexit negotiations have come a long way – and could probably have come much further were it not for the insistence on parallelism. A potential deal is within grasp. It remains to be seen whether both parties can bring themselves to remember that their job is to act in the best interests of their citizens rather than hewing close to their own ideological positions.