John Humphrys: Should Governments Threaten to Break the Law?

September 10, 2020, 2:22 PM GMT+0

The government is making no bones about it: it is threatening to break international law and, presumably, actually to do so if push comes to shove. Brandon Lewis, the Northern Ireland Secretary, blithely said so in blunt terms in the House of Commons on Tuesday. And then on Wednesday it was there in black and white in the draft Internal Markets Bill: ‘notwithstanding’ legal obligations it had already agreed with the EU, ministers must be given powers to override them should Britain find itself leaving the EU at the end of the year without a new trade deal. The government’s top legal adviser, Sir Jonathan Jones, resigned, apparently in protest. What’s not yet clear is whether the threat is just a negotiating tactic in the endgame of the protracted talks between Britain and the EU about a long-term trade deal, and so merely a threat which the government secretly has no intention of ever carrying out; or whether Boris Johnson really is prepared for Britain to break the law and to be quite upfront about it. But should a government even threaten to break the law?

In some ways it was quite refreshing. In answer to a straight question, Mr Lewis gave a straight answer, an honest directness not usually associated with politicians. He was asked by Sir Bob Neill, the chair of the Commons Justice Committee, to give an assurance that ‘nothing in this legislation does or potentially might breach international obligations or international legal arrangements we have entered into’. But far from providing such assurances, Mr Lewis said: ‘Yes, this does break international law in a very specific and limited way.’ That last phrase could be seen as being on a par with a poor young woman saying she was only a little bit pregnant.

The legislation in question is a proposed Internal Markets Bill the government says is necessary ‘to ensure the integrity of the UK internal market’ in the event of no new trade deal being agreed with the EU by the end of the year. The controversial clauses concern the treatment of Northern Ireland. In the withdrawal agreement Boris Johnson signed with the EU last year there was a Northern Ireland protocol to cover the complicated future relationship of the province with both the Irish Republic and the rest of the UK after Brexit. Unlike the rest of the UK, Northern Ireland is to follow the rules of the EU’s customs union and single market in order to prevent a hard border on the island of Ireland, but is also to remain fully part of the UK. This sets up obvious trading anomalies which the Protocol was designed to sort out, especially regarding potential use of state aid in Northern Ireland and the export of goods from the province to the rest of the UK. It’s the arrangements agreed to deal with these problems, and codified in an legally-binding international treaty, the British government is now proposing unilaterally to override. In other words the law it’s proposing to break is not one introduced donkey’s years ago in circumstances wholly different from those that apply today, but one Boris Johnson himself signed up to within the last year.

The enormity of the threat was immediately pounced upon by his own backbenchers. Sir Bob said the rule of law was ‘non-negotiable’. Tobias Ellwood, the Tory chair of the Defence Committee said: ‘Britain’s soft power on the international stage comes from our duty and resolve to defend and uphold international laws. This cannot change as we secure Brexit, otherwise our stance in holding China/Russia/Iran to account is severely weakened’. And Mr Johnson’s predecessor as prime minister, Theresa May, asked rhetorically: ‘How can the government reassure future international partners that the UK can be trusted to abide by the legal obligations of the agreements it signs?’ [Answer: it won’t be able to.] And Lord Kerr, a former British ambassador to Washington, said simply: ‘Tearing up treaties is what rogue states do’.

Of course this would not be the first time a British government has been prepared to break international law. But usually they go to great lengths to deny that they are doing so. They often even end up believing their own propaganda of denial.

The biggest and most recent case of this was over the Iraq invasion in 2003. The Prime Minister, Tony Blair, wanted legal cover from his Attorney-General, Lord Goldstone, that the invasion was legally watertight. But Lord Goldsmith’s initial advice – which the world was not allowed to see – was that it wasn’t. However, he ‘changed his mind’. He was widely accused of allowing himself to have his arm twisted, which he denied. But his volte-face prompted the resignation of Elizabeth Wilmshurst, the deputy legal adviser at the Foreign Office, who believed that the invasion most certainly broke international law. Professor Wilmshurst was the Sir Jonathan Jones of her day. Of course lawyers are almost as bad as economists at giving conflicting advice, but the consensus now is that the invasion was indeed a breach of international law. Nonetheless, Tony Blair will go to his grave denying this, either because he genuinely believes it or because he thinks no prime minister should ever admit knowingly breaking the law.

Which is why it is all the more surprising that Boris Johnson should be so seemingly relaxed in letting it be known that his government’s breaking the law would be fine by him. The consequences are not just those concerning Britain’s international standing that so alarm Mrs May and others. By saying the rule of law is non-negotiable, Sir Bob Neill implies a wider point. If a government (which creates law) can defy the law with impunity, why shouldn’t everyone else take the same line? Why shouldn’t an ordinary Joe, in the dock accused of committing some petty crime or other, plead along the lines of: ‘Well, the bleedin’ government breaks the law and seems proud of it, so why shouldn’t I?’ Such a plea wouldn’t get him anywhere, of course, but it makes a persuasive case questioning why anyone should respect the law any more.

Because the implications of a government openly breaking the law are so immense, some observers are wondering whether the government can really mean it. Another way of looking at it, they say, is to see it as a negotiating tactic. In the last weeks of the talks with the EU on a new trade deal, the government evidently wants to convince the Europeans that Britain is prepared to walk away without a deal – so better to get them to make the compromises necessary for a deal. At the weekend Mr Johnson said that though he’d prefer a deal, no deal would still be a ‘good outcome’. The openly-stated willingness to break the law in a ‘no-deal-post-Brexit’ world could be seen as just another move in this little dance to convince the Europeans that we’re perfectly willing to waltz off the dance-floor.

That seems to be the interpretation at least of one senior Tory backbencher, Sir Charles Walker. He said he’d ‘struggle’ to back a bill that openly declared that it defied international legal obligations but that he wasn’t throwing his toys out of the pram quite yet because he didn’t think he’d ever be asked to do so – that’s to say, the draft bill was really a negotiating tactic and would never be brought before the House of Commons to be voted on.

But of course, even as a tactic, the threat to break the law might backfire. Why, it’s argued, should the EU sign any new deal with Britain if its government is so insouciant about ignoring legal agreements it has so recently entered into and when its prime minister has a reputation not exactly pure white when it comes to keeping his word? The call, by Ursula von der Leyen, the president of the EU Commission, for an urgent meeting to clarify the British government’s intentions, suggests that if the EU is not satisfied Mr Johnson’s government will indeed honour its obligations, she may conclude the game’s up and break off the trade talks entirely.

As of now, we can’t know whether Mr Johnson’s open admission of planned law-breaking is just a tactic or for real. But either way two questions that would have seemed merely academic just a week ago, now seem pressing. Should governments openly break the law? And should they even threaten to do so?

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