Breakin’ the (International) Law

Okay, time for a brief return to Brexit commentary. Hello again, everyone!

So what’s going on right now? Why are our government talking about how breaking international law is Actually Good? What’s this all about?

So there’s a fair bit to answer here, and a lot of it depends on how much you’ve been following over the past few years. I’m going to assume no knowledge, so some of you may need to skip the first bits.

Northern Ireland. If you don’t already know the history, I don’t have the time or space to do the topic justice here, but the extremely potted version is, there’s a bit of Ireland (also known as the “six counties”) that for complicated historical reasons is home to a narrow “Unionist” (i.e. wants to stay in the UK) majority, and which when the rest of Ireland became an independent republic in 1921 thus remained in the United Kingdom. But it also has a large “Nationalist” or “Republican” (i.e. wants to join the Republic of Ireland) minority, which has agitated for reunification ever since. Relations between the two populations have been strained, regularly spilling out into the widespread violence known as “the Troubles,” for decades, sometimes exacerbated by the UK government e.g. sending in military forces. There’s nothing to be gained by talking about whose fault all this mess is (the English, it’s definitely the English); the point is that the situation exists, and there’s no easy way now of solving it to the satisfaction of all parties.

The Common Travel Area. Peace in Northern Ireland has been slow in coming, but a big step forward was the establishment, around 1952 (although not codified until ten years later), of what eventually became known as the “Common Travel Area,” a region encompassing the United Kingdom, the Republic of Ireland and the Isle of Man in which travel was relatively free and unimpeded. It meant that Republicans in the north could travel freely to the rest of Ireland, while Unionists could travel freely to the rest oft he UK. This wasn’t much – Republicans in Northern Ireland were still in practice ruled by Westminster, and still very unhappy about that, and the worst of the violence was in fact still to come – but in many ways it paved the way for future peace progress.

Joining the EU. Ireland and the UK joined the European Union on the same day, in 1972 (joining the EU, or “accession,” has to be done at certain dates around European Parliament elections); this spared any complications around the CTA – since the whole area went from being outside the EU to being inside the EU at once – and made it a trading bloc to boot. Now, not only could the Northern Irish travel freely between the UK and the Republic of Ireland, they could buy, sell, work and trade wherever they wanted, without a lot of paperwork and tariffs getting in the way. There were still frequently British Army blockades in the street, but life was moving on.

The Good Friday Agreement. All this came together in 1997, when – after a lot of work by both the British and Irish governments, and with a lot of support by the EU and the USA – the various factions in Northern Ireland were brought to the table to agree a compromise. The region would, on paper, remain in the United Kingdom, under Westminster rule; but most day-to-day decisions would be devolved to a directly elected regional parliament. Leadership roles would be strictly shared between the two factions, with an opposition Republican shadowing every government Unionist minister (and vice versa), and each side able to effectively block the parliament from meeting at all by refusing to sit. And a new cross-Ireland committee, made up of ministers from both Southern and Northern Ireland, would manage issues of common concern (mostly just travel infrastructure and the environment, but it’s still a powerful gesture). It’s a terrible, clunky arrangement under which Stormont has been closed for business for one year in three, but it was peace, and it worked. The GFA is a big deal, backed by a lot of diplomatic capital.

So far, so good, right? Peace in our time.

Brexit. But then comes Brexit, and a big mess. Joining the EU in 1972 was okay, because both Ireland and the UK joined at the same time; but unless we both go at the same time,* leaving isn’t going to be as simple. You see, for the EU to have such free, unfettered movement within it – movement of goods, movement of people – there have to be controls around it. (In simplest terms, for Bulgaria to let goods come in freely from France, Bulgaria has to have confidence that France isn’t letting goods into France that Bulgaria wouldn’t trust in Bulgaria, so France and Bulgaria both commit to check all goods coming in from outside the EU to a commonly agreed standard.) So from the EU’s point of view, post-Brexit, we’re either in the loop (EEA or equivalent), with freedom of movement and agreed standards; or we’re out (“Canada” or WTO terms), with neither. And if we’re out, there needs to be a border across the island of Ireland, and we tear up the Good Friday Agreement, and at some point – maybe not right away, but soon enough – the Troubles start again. Because the fathers and grandfathers of boys who’ve grown up in peace still know where the guns are hidden.

And nobody wants that.

The Withdrawal Agreement. So let’s talk about the Withdrawal Agreement! Specifically, how we’ve absolutely left the EU, but people are still talking about “when we leave the EU” in January. You see, no-one’s left the EU before (indeed, it was expected that no-one ever would), so we essentially got to be the guinea pigs for a new procedure. This amounts to leaving the EU in two stages: in the first, we announce we’re leaving and have a two-year (plus extensions) window to negotiate a temporary arrangement called a “withdrawal agreement,” describing the immediate relationship upon leaving; in the second, we use the time provided by the withdrawal agreement (plus extensions) to negotiate the actual final relationship once the temporary arrangement ends. This prevents us from sticking one foot out the door and being a dick until we get what we want; we can’t start negotiating a new trade deal until we’re actually out.

So the withdrawal agreement had a few basic requirements. It had to, at least initially, ensure continuity: we agree to keep abiding by EU rules, they agree to keep giving us access, at least for a few years. It had to spell out a timescale, and set the terms for extending the period if necessary (here, bafflingly, May deliberately hobbled us; a wholly inadequate window with one chance at a short extension, which had to be taken six months before the window ended, before we knew if we needed it). It also included an aspirational document describing the kind of future deal we’d like to get, although being nonbinding that was less important (which didn’t stop it being a major bugbear in Westminster). And, from the EU’s point of view (the Republic of Ireland being a member state, with a veto), it absolutely had to preserve the Good Friday Agreement.

The Irish Backstop. The EU’s solution was simple enough: leave Northern Ireland in the EU. That is, it’s still in the UK, it’s definitely leaving the EU, but NI specifically agrees to continue adhering to EU standards and regulations, and requiring relevant standards on goods coming into the region from outside (including from the island of Great Britain). And we continue allowing free travel across the CTA. The rest of the UK’s free to diverge from EU standards as we wish, but if we do, there’s checks on goods coming into Northern Ireland. It wouldn’t even have to be a permanent arrangement, that’s why it’s called a “backstop”; it would only apply until the UK and the EU work out a solution, which the Tories repeatedly insisted would be forthcoming. It’s an inelegant compromise, but everything about Northern Ireland is an inelegant compromise.

But Theresa May didn’t go for it; she depended on the Unionists for her majority, and they refused to accept even the possibility of a border between Britain and Northern Ireland. She went all the way the other way; what if the backstop included all of the UK? We’d commit to the whole country adhering to EU regs and allowing freedom of movement, indefinitely, unless and until we found some sort of technological or administrative solution that preserved the GFA. Well, the EU liked that well enough, but now the Tories were in an uproar; the whole point of Brexit was to end immigration and throw off the red tape! Her deal was shot down three-to-four times in Commons and she was forced to quit.

Enter Johnson. With a great deal of fanfare and much muttering about May’s incompetence, the new Prime Minister went back to the EU and… agreed to the original proposal. Northern Ireland would continue to adhere to EU regulations, would retain full freedom of movement, and if necessary a border would appear between Northern Ireland and the rest of the United Kingdom. He then, because this is what he does – it’s all he ever does – lied about it to Parliament and to the British public. The new deal was some sort of magic potion; it would give us all the access we need, yield nothing to the dirty Europeans, and we’d all have tea and crumpets forever. He was throwing the Unionists straight under the bus, but he didn’t give a shit. All he needed was an election win with a big enough majority, which he got.

The EU shrugged and signed the treaty we’d agreed: we had, in the end, an eleven-month transition, with an extension we did not intend to use (and in the event, did not use), at the end of which Northern Ireland would remain, in effect, permanently within the EU until such a time as we found a better solution.

The Charge to No-Deal. And so we started negotiations. And by “started,” I mean “didn’t bother with.” We’ve spent the past seven and a half months fucking around, posturing and chest-beating, demanding ridiculous nonsense and ignoring all attempts to deal seriously. At this point, it’s clear Johnson either actively wants no-deal (and yes, I know the hedge fund conspiracy theory, I can explain why that’s not hugely relevant if you like), or genuinely thinks he can bluff the EU into submission (which demands him basically not understanding them), or just doesn’t care (bingo!). No-deal is what his electoral base wants, and that’s all he cares about.

But What About Ireland? But it’s occurred to him now that the Irish Backstop in the Withdrawal Agreement – the clause and the treaty that Johnson negotiated, forced through Commons, made his MPs pledge to support, campaigned on, won an election on and signed – is actually going to come into effect. And that clause, because this is what a backstop is, comes into effect even if we end the transition with no-deal, and is then permanent, and has no mechanism to negate it if we change our mind later (the ERG tried plenty hard to make that happen, but no dice). And he’s realized it might not play well with the all-important electoral base. We were going to get everything we want! With booze and Curly-Wurlies! He has to do something about it.

The Internal Market Bill. And that something is pissing on the treaty he negotiated and signed. The Internal Market Bill is a largely pointless proposal about managing movement of goods within the UK, but which includes two paragraphs basically saying, “…and we can rip up the Withdrawal Agreement if we want.” (Actually, it goes a bit further to that, because it also has a line saying, “…and if we do, it can’t be challenged in the courts,” which is just fucking churlish, the big wet.)

And it’s had its first debate and vote in Commons, and passed by nearly eighty votes. This, in itself, is not unusual; even if there’s substantial opposition within the Tories (and it looks like there is), the general convention is to let it pass this stage so they can fix the perceived flaws in the bill in the next stages, committee and review.

International Law. This is a big deal. I mean, a big deal. And to explain, let’s talk about international law. Now, if you and I, theoretical person reading this, entered into a business agreement, we could leave a great deal unsaid. We wouldn’t have to spell out our respective rights to review each other’s accounts or scrutinize each other’s processes, we wouldn’t have to discuss how to dissolve the agreement further down the line, we wouldn’t need to explain penalties for breach. Some contracts do indeed discuss those things, but we wouldn’t need to; because the contract exists within a larger legal framework – the law of England and Wales – and those rights and procedures are already provided for. We can appeal to laws protecting trade and transactions, we can sue each other, we can even make a criminal complaint, in extremity.

Countries don’t have that luxury. If one country breaks an agreement with another country, they can’t then go to the Super-Government and ask the Country-Police to arrest each other (I mean, there’s the World Court and the WTO, but let’s be serious). So treaties have to spell out all of this stuff – dissolution, penalties, the whole shebang – and the only thing that makes it all work is trust; and the only way to build up trust is to stick to the agreements you’ve made.

And like, I’m not going to get misty-eyed about the United Kingdom as an exemplar of honest dealings and integrity; we’ve fucked people over plenty in our time. We’ve done the gunboat diplomacy thing, we’ve plundered other countries, we’ve reneged on promises. But having grown rich on the proceeds of our asshole years, we now try to pretend they never happened, and for the past few decades we’ve invested a great deal into the idea that we’re the grownups of international diplomacy. We’re good at it: we make shrewd deals, we arbitrate deals between other countries, and we keep our word. It’s really all we have left since losing the Empire. And Johnson has pissed it entirely up the wall.

Jeopardizing Northern Ireland, Jeopardizing an EU Deal, Jeopardizing a US Deal, Jeopardizing… Brexit? This goes beyond Northern Ireland. I mean, a return to the Troubles would be a historic, catastrophic failure, a senseless loss of life and peace for no return and an indelible mark on the memory of whoever was responsible for it. But it’s also just the beginning of our problems.

First off, at some point we have to make a deal with the EU. No-deal or no-no-deal, they’re right there next to us, there’s half a billion of them and they buy almost half our output. We need to make some sort of deal. So what do they say to the country who, less than eight months after signing a treaty with them, passes a law allowing us to ignore it? Why would they agree anything? We’ve explicitly told them we can’t be trusted.

Secondly, what about this hot US deal we’re going to sign? They were the biggest third party in the Good Friday Agreement; there are more Irish-Americans than there are Irish people, and they care a great fucking deal about that treaty. What sort of deal are they going to make with the country that kicked off the Troubles again, even if we did agree to buy chlorinated chicken and hormone-soaked beef?

Thirdly, there’s everyone else. That’s what the Brexit deal was, right? The freedom to sign treaties with every country in the world. We’ll make great new deals with everyone! Tim-Tams from Australia, Stilton to Japan! But why would anyone trust us? All sorts of Cabinet ministers, including the Attorney General and the Lord Chancellor (both of whom swear oaths promising to uphold the rule of law) have stood up to explain that this is a special case† and everyone will be totes understanding, but that’s not how that works. Remember that bit above about how in international law there isn’t anyone for you to go to if the other guy breaks a deal? That’s the problem; you only get a deal if you can be trusted, and if you’ll break that trust for a good reason, you’ll break it for a bad reason. There’s no special cases, there’s no “specific and limited.” If you’re the sort of country that tears up treaties, you don’t get nice treaties.

It’s A “Strategy.” But surely this is just a strategy, right? He’s showing strength, threatening the EU with noncompliance so they’ll come back to the table. I mean… maybe? But if so, it’s a bad strategy. We’re not the stronger party here, we don’t have the upper hand. The threat to peace in Northern Ireland is our only leverage, and even if we didn’t have to break international law to use it, it’s an awful threat to use, because it makes us look like utter dicks. And as it happens, we do have to break international law to use it: right now, the only reason for them to come to the table is to protect Ireland and we’re telling them, in so many words, they can’t trust us on any deal we make about Ireland. And shit, even if we don’t use it and we somehow persuade the EU to make whatever deal it is we want (not clear in any way, to be honest), the damage will already have been done because we’ll have already shown the world we’re willing to break our treaties just for leverage. Shit, even if Parliament somehow stops Johnson, the damage may already be done; we may find no-one is willing to talk to us until after he’s out of office, if then.

So Can This Thing Be Stopped? Unlikely. An eighty-seat majority is a pretty powerful thing. There are and will be rebels, but probably not enough to stop it – or at best they may get a purely notional amendment like Bob Neill’s in, which will make no difference (he wants to add a Commons vote to the ability to tear up the treaty; it’s like flicking the safety catch on a loaded revolver so it’s “not dangerous anymore”). Our best chance is probably Lords, who are absolutely ready for this fight, and Johnson knows it.

The Lords. Here’s where the Salisbury Convention comes in. Proposed in 1945, the Salisbury Convention (it’s not even an Act, just a sort of “guide to fair play” spelled out in a speech by Lord Salisbury that at some ineffable point just sort of became a binding rule) holds that, while the House of Lords may seek to delay or modify it, they won’t actually vote down any measure that fulfills the Government’s manifesto pledges. That is, if a party promises the British Public, in a general election, that they will do a thing, and the British Public votes them in, then the Lords won’t interfere with them doing that thing.

And it’s hard to think of any measure further from fulfilling the Government’s manifesto pledges than a bill that exists purely to undo a treaty that the Government campaigned on almost exclusively. I mean, this is it, this is the “oven ready deal” he hammered away – and, as aforementioned, literally demanded his MPs pledge in writing to support – for the whole damn campaign, and he’s proposing a bill to tear it the fuck up. You can be damn sure the Lords are going to fight it.

And Johnson’s almost ingenious riposte, today, is to actually lean into the fact he was lying for the whole campaign! He’s essentially said that since he lied in all his speeches that there would be no border between Northern Ireland and Great Britain, then in fact passing a new bill to fuck off the treaty he was lying about is fulfilling his manifesto pledges. Which, if nothing else, shows a supreme fucking brass neck, but I don’t think it’s going to impress anyone.

So yeah, that’s what’s coming up. Committee stage is ongoing until Tuesday, then review stage after that; there’ll be a shitload of speeches, we may be lucky and Ed Miliband will be allowed to shred Johnson a few more times, which will achieve nothing but be personally quite gratifying, Bob Neill’s useless amendment may be passed. The bill will then proceed to third stage and pass. The fun stage is in Lords sometime thereafter.

And that’s what’s going on with the Internal Market Bill.

____

*I mean, obviously there are Tories saying it like it’s an obvious solution and the Irish are just being awkward. Obviously.

†Sorry, “specific and limited.”

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