Downing Street has briefed the media that the British government is planning legislation purporting to give the UK the power to renege on the legally-binding Northern Ireland Brexit protocol. The word "purporting" in that sentence is important because, of course, no national parliament has the power to rewrite an international treaty unilaterally. It seems that prime minister Boris Johnson may consider that, having received a fixed-penalty notice for breaking domestic British law, he has nothing much to lose by disregarding international law also.
The timing could hardly be worse. Western democracies, faced with Russian president Vladimir Putin’s invasion of a peaceful neighbour, have recently seemed strongly united in defence of international law,
The British government’s deliberate leak further indicated that Queen Elizabeth will be expected to announce the incriminating domestic legislation in May at the opening of the next parliamentary session. This would amount to a disrespectful and demeaning gift from the Johnson government to her majesty to mark her platinum jubilee. The queen is recognised as someone of integrity. Moreover, it would be particularly galling for her, as someone who has made a historic personal contribution to improving British-Irish relations, to be asked to announce a measure that is so confrontational and provocative towards Ireland.
As to why the Johnson government is shaping up to break international law, one can dismiss the stated reason that the intention is to protect the Belfast Agreement
It is, of course, not clear that the proposed domestic legislation will ever find its way on to the statute books. It may turn out to be little more than kite-flying in advance of the Northern Ireland Assembly elections on May 5th. In his public comments, Johnson has been less explicit than the media briefing on his behalf, saying only that the legislation is “under consideration”. One can also take some solace from the fact that his government has been making quite a habit of U-turns. Moreover, if the legislation does proceed, it will face principled opposition in both houses of parliament, including from decent Conservatives. Most significantly, Johnson’s very premiership seems increasingly to be hanging by a thread.
Nevertheless, since the stated willingness of the British government to table such improper legislation does much of the damage that would result from its eventual adoption, it is timely to consider two questions. Why is the legislation being threatened now? And what would its effects be?
On the first question, as to why the Johnson government is shaping up to break international law, one can dismiss out of hand the stated reason that the intention is to protect the Belfast Agreement. The Brexit protocol was carefully designed and legally signed off on, by both the European Union and the British government itself, precisely to minimise Brexit’s inevitable damage to the Northern Ireland peace process. The notion that the Johnson government is being held back by unionists from agreeing practical compromises on implementation of the protocol is entirely unconvincing. Instead the UK government, rather than working to sell the balanced agreement it negotiated, has been stoking unionist concerns in order to bolster its own narrow, hardline, simplistic Brexit agenda.
As regards the real reasons for the timing of the announcement, there appear to be three – none of them creditable. First, it is presumably designed to boost the chances of the DUP in the Assembly elections. Second, it is red meat for fundamentalist Brexit supporters in the Johnson’s parliamentary party, who relish any form of EU-bashing and whose recently wavering support he needs to stay in power. Third, like the Rwanda refugee debacle, it serves as a useful distraction from the “Partygate” scandal.
Reneging on a binding treaty would further undermine relations between the UK and its natural partners in Europe
On the second issue, namely the possible effects of unilaterally rewriting the protocol, these are likely to be at least fivefold.
First, if the British government proceeds as it indicated to the media, it would gratuitously challenge western unity in the face of Putin’s outrages. Although that unity will probably be broadly maintained, such a new element will inevitably be divisive and unpredictable in its consequences. It will certainly not be appreciated in the United States where the complexities of the Belfast Agreement are well understood. President Joe Biden has made his position on the protocol crystal clear.
Second, such behaviour would undermine the UK’s standing to lecture Putin, or indeed anyone else, on the rule of law. Britain’s international reputation and influence would suffer.
Third, reneging on a binding treaty would further undermine relations between the UK and its natural partners in Europe. Retaliation would inevitably follow in the wider EU-UK trade relationship. The Johnson government would bear full responsibility for the consequences that would be negative for both parties.
Fourth, it would further damage something particularly close to my own heart, namely the British-Irish relationship, which relies on trust.
Finally, most importantly, it would further unsettle the delicate situation in Northern Ireland by moving the real and unavoidable challenges of dealing with the consequences of Brexit back to square one.
Bobby McDonagh is a former ambassador to London, Brussels and Rome