How should Boris navigate the Internal Market Bill?
What options are open for the PM as Brexit negotiations continue to languish?
There are times when your copy of 1066 and All That sitting on the office shelf can come in useful. This week’s spat over the Internal Market Bill, and its selective breaches of international law, is one of them. On the right: Boris Johnson, Wrong but Wromantic, like Charles I. On the left, Michel Barnier and the legions of the EU, Right but Repulsive in the image of the Roundheads. In this case, Boris needs to take a lesson from Charles I and give way, though not for the reasons you might think.
If Boris is looking for a hill to die on, the Withdrawal Agreement is not an obvious choice
The issue is unfortunately one of mind-numbing technicality which most people don’t begin to grasp: the Northern Ireland protocol to the Withdrawal Agreement with the EU which we signed last year and then enacted as part of UK law contains two provisions aimed at protecting future free trade between Northern Ireland (outside the EU) and Ireland (in it) without creating a physical border. One prevents the UK from subsidising Northern Ireland companies in a way that would be illegal under EU law. The other requires the UK to prevent flows of Irish-produced goods from Northern Ireland to the mainland when the result would be a breach of EU export regulations. A further provision of the Agreement requires that these laws have supremacy in the UK in the same way that EU law currently has: that is, they can be repealed only by a statute that expressly states that it does so.
Theoretically the Withdrawal Agreement, a treaty binding in international law, continues to apply even if we end up with No Deal, though nobody expected this scenario. But in that eventuality a number of adjustments would have to be made fast, and Clauses 42, 43 and 45 of the Bill allow these to be made expeditiously by ministerial regulation.
This is the cause of the brouhaha. Although the Bill as a whole has the laudable and justifiable object of creating a level playing field for business throughout the UK post-Brexit, these clauses have the effect of removing the technical legislative double-lock required by the Withdrawal Agreement, since they allow inconsistent legislation to be passed by ministerial fiat. There you have it: it is this inconsistency which has been weaponised by the EU and others.
If you think that the EU’s vociferous outrage over the affair amounts to making a great deal of noise about very little, you are right. The Bill makes no actual changes in UK law to side-line the Withdrawal Agreement; nor as yet is there any proposal to introduce such changes. In short, there is no actual skin off the EU’s nose at all; merely a technical beef that the Agreement no longer has the special protection from inconsistent UK legislation that it should have.
To regard this as an existential threat to the international rule of law threatening the demotion of the UK to pariah status is rather like saying that widespread omission to pay the TV licence fee marks a worrying outbreak of major lawlessness among the UK population as a whole that calls for the sternest measures. The only groups to make a serious fuss are, as one might have foreseen, Remain-leaning lawyers and academics for whom legalism is everything and a sense of proportion of negligible importance, and an EU intent on making as much mischief as it can out of a miscalculation by Boris that he could slip the detailed provisions of the Bill under the radar without being noticed by the eagle eye of the Financial Times (which broke the story).
We should think carefully before doing something that might harm our interests in the future
And yet the EU, albeit almost entirely without merit, is right as a matter of international law. Now, it is sometimes quite politically justifiable to turn a blind eye to such things: think, for example, this country’s refusal for twelve years to implement a silly and domestically very unpopular 2005 ruling of the Human Rights Court on prisoners’ voting rights, and its continuing failure for much the same reason to give effect to the more intrusive provisions of other equally misguided agreements such as the UN Children’s Rights Convention. But this isn’t something to be done lightly. A reputation for keeping to agreements is a good thing to have and should not be imperilled without very good reason. If Boris is looking for a hill to die on, the Withdrawal Agreement is, shall we say, not an obvious choice.
Why? The first point is that we do want an agreement with the EU: nominally by the end of December, but in practice rather earlier. Now, when you want to close an early deal, it is a good thing to keep to the moral high ground, including abiding by the letter to what you have already agreed, even if (as here) it impinges rather unacceptably on our rights as a sovereign democratic nation. For the UK to play things that way would make it much more difficult for the EU27 to walk away from the negotiating table without looking petulant and foolish.
Secondly, whether we like it or not, our relations with Northern Ireland are taken very seriously elsewhere. Statements have been made, for example, that concluding a US trade deal would become much more difficult, if not impossible, were this Bill to pass. However misguidedly, the US has the right to make up its own mind on such matters: and this means that whatever the effect on our pride we should think carefully before doing something that might harm our interests big-time in the future. It is also worth remembering that the US is a trade partner well worth cultivating; our trade surplus with it is currently just shy of $20 billion per year.
Boris can get all he wants by gracefully giving in now and blaming the House of Lords
Thirdly, for all Boris’s bluster the Bill with its controversial provisions may well not pass anyway. Although the Government has the numbers in the Commons to see off a revolt by renegade Tories under the pompous Remainer Bob Neill MP, the Lords are another story. The Salisbury convention against tossing out bills with clear Commons support does not apply, since the Bill was not in Boris’s manifesto; and were the House of Lords sanctimoniously to reject it, there would be no time before December to use the Parliament Act to ram it through. In these circumstances Boris might be far better advised to announce that his proposals were likely to fail in the Lords and regretfully drop them. He could at the same time get a good deal of political kudos by dropping a hint this was entirely the Lords’ fault, and that in the post-Brexit world that House might well face searching questions as to which, if any, powers it ought to retain.
Fourthly, the impugned provisions in the Bill are not in any case vital. The statute giving effect to the Withdrawal Agreement, the European Union (Withdrawal Agreement) Act 2020, which was passed without complaint by the EU, already makes it perfectly clear that in the last resort Parliament is supreme. It follows that were the Government minded at some future time to legislate contrary to the Withdrawal Agreement, for example if difficulties did arise following No Deal, it already has the power to do so. It would merely have to do it using cumbersome primary legislation rather than a ministerial order. This would undoubtedly be a confounded nuisance for a government with a lot to do. But it is not impossible, and there is little if any reason to ruffle feathers, endanger future trade deals and antagonise the EU – however much the latter may deserve it – merely for the sake of legislative ease.
In other words, Boris can in practice get all he wants by gracefully giving in now and blaming the House of Lords. It may not be the most obvious way forward. But it is results that matter. In the long run he could do worse than remember the words of the sage Hermann the Irascible at the end of Saki’s inestimable short story The Great Weep (itself a story about political skullduggery). “‘There are more ways of killing a cat than by choking it with cream,’ he quoted, ‘but I’m not sure,’ he added, ‘that it’s not the best way.’”
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