7th March 2021
Another month, another move by the government by the United Kingdom that will break international law.
This time it is the announcement of a unilateral move in respect of a grace period for for temporary agrifood movements to Northern Ireland.
This, of course, from a United Kingdom government that repeatedly boasted of its readiness for a swift withdrawal from the European Union without any agreements in place.
Now the government of the United Kingdom wants grace periods – the latest in a succession of extensions and ‘implementation’ and ‘transition’ arrangements, all with the effect of the government of the United Kingdom pretending to itself and others that there has not been any actual departure from the European Union.
And this is not in respect of any old international obligation imposed by some outside body – but in respect of obligations that this United Kingdom recently negotiated, signed, obtained a mandate for at a general election, and rushed through parliament without scrutiny.
It is all rather daft.
One of the wonders of the age is that so many political and media supporters of the government still clap and cheer at these self-inflicted pratfalls.
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In turn, the European Union is unequivocal:
‘Following the UK government’s statement today, Vice-President Šefčovič has expressed the EU’s strong concerns over the UK’s unilateral action, as this amounts to a violation of the relevant substantive provisions of the Protocol on Ireland/Northern Ireland and the good faith obligation under the Withdrawal Agreement.
‘This is the second time that the UK government is set to breach international law.’
This response from the European Union indicates not only why the threatened unilateral breach is daft – but also why it is also dangerous.
The post-Brexit future of the United Kingdom now depends on being able to be taken seriously as an independent international trade partner.
But each signal that the government of the United Kingdom will casually breach obligations into which itself negotiated and entered is a signal that the United Kingdom is not to be trusted.
This bad faith will have two effects.
First, doors will silently close on the United Kingdom – as why would any trading nation strike a substantial deal with the United Kingdom when the United Kingdom shows itself willing to break such an agreement within weeks?
And second, those agreements that do go ahead will have built into them protections and allocations of risk to address the United Kingdom’s untrustworthiness.
No sensible country watching any of this will assume there will be good faith from the United Kingdom in any international agreement.
The trade negotiators of the United Kingdom may as well all turn up to any negotiation sessions wearing sandwich boards saying ‘kick us’.
This is the moral hazard that the United Kingdom has created for itself.
And it is the very last thing a country in the position of the United Kingdom should be doing, as it moves into its post-Brexit future.
Indeed, the government should be doing the opposite: making sure that every move and statement is geared towards building up international credibility.
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As the historian Robert Saunders avers, the ultimate problem here is honesty – with itself and its supporters, as well as others:
So many of our Brexit problems have a common source: the govt's refusal to be honest about the deal it negotiated. It persistently represents its own choices as hostile incursions, to be repelled by a sovereign state. It's a case-study in how dishonesty drives bad policy. THREAD https://t.co/kaWsU2UOGg
— Robert Saunders (@redhistorian) March 5, 2021
That this observation is, well, so obvious would make one think there could perhaps be a quick moment of realisation – that the government and its supporters will realise the folly of their bad faith.
But there is a real risk that the government of the United Kingdom will keep on with this daft, disastrous and dishonest approach – as the marginal political gains seem preferable to facing up to the structural and strategic damage.
The adverse consequences will just be factored into elsewhere in the international arrangements (and lack of arrangements ) of the United Kingdom.
There is no such thing as a free lunge to lawlessness and bad faith.
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What realistically can we do about it?
Write to your local MP with your views, especially if they are Conservative.
Vote for parties other than Conservatives at the forthcoming local elections to send a signal to them.
Vote for others at the next general election.
It’s a very good question Margaret. I personally will be voting for any party with a serious intent to rejoin. Though I wouldn’t be too surprised if the EU decided not to have us…
A free lunge: brilliant serendipity
Johnson and Frost have been watching the BBC TV Trump three part series. Say one thing one day and the opposite the next, only they haven’t got round to the say the opposite bit yet.
It’s the price of the Tory party keeping itself together. The internal logic of Brexit inexorably requiring actions which seem insane in the outside world but are logical in the closed world of Tory Brexit. Lots of things are going to be sacrificed on this Tory party altar before people say ‘Enough is enough’.
I think the usual response at this point is ‘Brace, brace’.
There must be some logic to it but it is hard to find. This looks like they are still campaigning. But maybe they are, either for a much sooner GE or internally. I reckon this is Frosts way of cleaning up his own mess: adding to it.
There are two strands of logic to it, which are not mutually exclusive.
First, we have the myopic focus on domestic political advantage, as laid out by Adam and yourself.
Second is the desire to trash the country to create a Target-Rich Environment for disaster capitalists, hedge funds, money-launderers, and similar. Those currently in power have substantial ties to such individuals and groups (55 Tufton Street says hello), and those who don’t already will no doubt be in prime position for lucrative executive-director sinecures once they are kicked out of office.
I see a lot of twitterati commentary about WA and NI impacting our standing and opportunity.
At same time Truss negotiated stand still agreements, sanctions lifted by US when could have just done EU etc.
UK is upholding law elsewhere and the TAC Treaty. Will countries not just discount the very unique situation of NI. Especially as it’s a long going problem.
I get if it was breaching the TAC treaty. Personally just feel when it’s to do with territory and UK making heavy concessions on its territory that most countries wont be wanting to do the same.
So can see it impacting talks on Falkands, Gibraltar etc. But not “generic trade” .
Anyone have any views /counter points on that?
It’s part of a pattern which has been described as ‘campaigning’.
Cuts in foreign aid, sentencing changes, stand firm on Scotland (who are self destructing their independence campaign anyway), holding out against pay award to NHS, taxing in the future just not now so that when FTPA has been revoked there can be a snap general election followed by the planned tax rise. Tough government not afraid to take on the establishment interests. Arguably they may come unstuck on NHS pay but that is easily U turned and soon forgotten. It’s classic Trump playbook – hold on to your base 40% and a divided opposition can’t win. Win another 5 years in Government, raise taxes at the start, cut them towards the end.
Thank you. Let’s hope that when we do have a new government we can recover our international standing.
In order to retain some creditability as a non-rogue state our opposition parties need to speak out against the law breaking and illuminate the damage caused by the ultra’s choice of brexit. Waiting until the government changes to explain to the world ‘it’s not us gov’ is leaving things far too late.
Frost was a fairly senior diplomat. He has extensive experience on EU matters. At one point he was private secretary to John Kerr, now Lord Kerr, a former senior FCO diplomat and a prominent critic of Brexit and all its works. I can understand that his experience of EU work in the UK Government might lead him to believe that toughness in negotiation with the EU is the best strategy, and that there might possibly be a degree of sympathy among other third countries bruised by their dealings with the EU, a difficult and tough negotiating partner (as it has to be as a herder of the 27 cats that are its member states). But the risks are formidable: the EU is simply more economically powerful that the UK: gravity in trade means we will inevitably need it and we will need it more than it needs us; even the sympathy of some third countries is more likely to be a stance towards the UK of “Well, good luck with that.” And the reservations DAG points out will be prominent in their thinking too as well as in that of others. It seems an extraordinary risk to be taking.
Your explanation of Frost’s extensive diplomatic background surprises me – I’d mistakenly thought his behaviour was at least partly based on brash ignorance and insularity.
I’m not so sure.
UK-EU is a unique case, especially the NI protocol.
Most countries will assume that the UK is marginally less reliable. But not by that much. Assuming the “local” dispute with EU/NI isn’t too be generalized
I think you’re right. I think that countries understand politics and would probably appreciate that antagonism with the EU is for the benefit of a domestic voting base. Most brexit voters are of the ‘what problems? We told you so’ attitude.
This news is yet more evidence of this government’s shameless arrogance. It is depressing to behold, both in itself and as an illustration of the the realities of the imbalances of power in British politics. Hoping that one day the government’s arrogance will result in its defeat is a slim hope. That such a defeat would see its replacement by a progressive government is an even slimmer hope. Depressing times.
One of the worst aspects of this nonsense is that it is plainly deliberate. So far from having ‘got Brexit done’, Boris realises that maintaining a perpetual fight with the EU will play well with his Europhobe supporters, who will readily see him as the plucky Brit seeing off the evil European aggressors. Against that, the fact that it will do our country lasting harm doesn’t matter much to him.
Another piece of collateral damage from this irresponsible behaviour may be the climate change talks we are hosting in Glasgow later this year. How much credibility will the UK have in trying to coax other countries to sign an unselfish agreement for the benefit of the planet?
They are still campaigning, now for the 2022 general election.
I think this can be seen from the perspective that those now in power have always been indulged and think that they have a “God given” right to stamp their feet, behave badly and they will have their way. It is the politics of the nursery, but when did any of our “ruling” politicians ever work in the real world and with the real world rules that trammel the rest of society? It will end badly, but not for them, alas.
By agreeing the NI Protocol and passing necessary UK legislation, Johnson and Frost have written into UK and international law something that Loyalist intransigence will not allow them to deliver.
Asquith made the same mistake with the third Home Rule Bill – in early 1914 he realised what he had done, promised to exclude (part of) Ulster from Dublin’s territorial scope but owing to the wording of 1911 Parliament Act by July found himself unable to deliver. Asquith was spared the consequences only by the German violation of Belgian neutrality. A Russian invasion of Estonia or a Chinese invasion of Taiwan would doubtless allow the greased piglet to escape, but a few million deaths in the resulting conflagration would be a high price to pay.
Many of the obstacles to trade created by the operation of the NI Protocol are susceptible to negotiated solution. The Loyalists are however obviously right when they say that the Protocol itself does create a border between the six counties and England, Scotland and Wales.
John Major and Tony Blair both had first hand experience of the importance that unionists attach to their British identity.
Nothing has changed since Lord Randolph Churchill – whom we should remember had a spell in Ireland when his father was Lord Lieutenant from 1876 to 1880 – declared in 1886 “Ulster will fight and Ulster will be right”
After the GFA, violence almost entirely ceased. Johnson as a politician devoid of any sense of principle failed to realise that unionism as a political conviction was not dead – it slumbered. He has awoken it.
The problem cannot be resolved by moving from a sea border to a land border. Not only would that awake nationalism from its slumber, it would outrage the United States.
There is no question of the EU expelling Ireland.
In the NI Protocol is unenforceable, there are therefore only two solutions. The first is for the United Kingdom to accept that it will operate an identical customs and regulatory framework to that of the EU. The second is for the EU to accept that there will be an open border to the single market in Ireland.
As neither of these seem remotely likely whilst Johnson remains in Downing Street, we should resign ourselves to very difficult relations with the EU and very substantial damage to the economy.
“By agreeing the NI Protocol and passing necessary UK legislation, Johnson and Frost have written into UK and international law something that Loyalist intransigence will not allow them to deliver.”
How on earth have loyalists got this power over them? HMG is the loyalists’ democratic government, once it asserts its authority they have nowhere to turn.
Last week I purchased a kitchen electrical appliance in the EU.
The saleswoman politely and efficiently recommended three products, one English one French and one Italian.
The English appliance was disregarded immediately and the Italian one chosen .
This was not having a “sulk “( as per the Sunday Times) but making an economic decision with admittedly some political undertones.
The Protocol was never considered and this is the point of this post.
Thank you David. I do very much fear that this awful government has made a conscious decision to maintain a simmering hostility with the EU “baddie”, as they present it, to deflect attention from the dreadful deal Johnson and Frost struck at the end of last year. Indeed, Frost’s recent appointment in charge of our post Brexit relationship with the EU seems to confirm this. For these Tories, political advantage is all that matters, and the willing compliance of most of the MSM in the ludicrous denigration of the EU very much serves their cause. God help us.
I thought that the Commission takes member states to the ECJ on average 100-200 times a year and the number of outstanding infringement notices runs at 1000-2000. What’s so remarkable or egregious about this case of a member state ignoring the treaty obligations it has entered into ?
I cant help wondering what would happen if at the Tory leadership election after Cameron stood down Gove hadnt shafted Boris. Theres a good chance he would have won. In which case he might have ended up going with the same deal May negotiated, and with his better communication skills might have got it through.
But to become leader he had to align himself with those opposing the May deal (recall his delayed resignation when that deal was revealed). Then the die was set…
Also, a question: I read somewhere that a temporary easing of checks was actually legal – the commentary said that there’s a question of how long a temporary easing is allowed to last, but that it was not a black white issue that the easing was illegal. Is that not correct?
The specific decision is easy to understand – easing the rules as a favour to the supermarkets, who are generous and conscientious contributors to the democratic process of policy formulation – but it’s extremely unpleasant and rather alarming, when you look a little deeper.
If we choose to ignore the possibility of malice, and take a generous view that the apparent bad faith emerges from an oversight, we can look into the thought processes of some junior minister, or political adviser, or cabinet minister or chump: a politician who shares the common Conservative cognitive deficit that entirely excludes ‘foreign’ from their thinking.
This is an extreme case of the ‘Westminster Bubble’ thinking, in which distant places (like, say, Bermondsey) are faraway places seldom in the news. So extreme, that ‘foreign’ is no mere ‘blind spot’: it is black hole encompassing half the sky and half their thinking. No light or news emerges from it, no thought of it can exist, and no word written or spoken about it can exist, save as brief distorted shriek from the media, stripped of all usable data save a hint that ‘foreign’ is beyond an unseen event horizon that spaghettifies and vapourises information, matter, and politically-inept observers.
It would never have occurred to the minister who helped-out the supermarkets that a ‘foreign’ was a thing, nor the concept of a treaty with ‘foreign’ having consequences – let alone the idea of it being a binding commitment.
The whole idea is absent.
Literally, ‘unthinkable’. Not in the sense of something horrible that we’d rather not think about: a complete absence of the thought ‘foreign’ and an utter inability to think it.
Likwise, it would never have occurred to any cabinet minister or political adviser that there would be political reactions and real repercussions in the capitals of Europe: they do not read the foreign press and if you ever suggested to them that they should, they would look at you with utter bafflement, as if you had spoken the sentence backward, or spent ten seconds repeating the incomprehensible bisyllable ‘foreign’, as if it were actually a word conveying a meaning.
The word behind this bad decision is ‘Thoughtless’ but you need to turn it over in your mind – repeat it aloud, perhaps – and try to think through its disturbing implications, lest you fall into the trap of it being ‘unthinkable’.
Try it: we all have some difficult thinking to do, about this government and the changed politics of our times.
In short: the decision is thoughtless, and you need to think about that, because our mental toolkit of fact and reason won’t inject the necessary thought into similar decisions in the future.
Not that I would entirely discount an element of malice: at least one senior figure in our government detests the Good Friday Agreement, and has given sufficient thought to ‘foreign’ that he might actively seek to antagonise our European negotiaing partners – or enemies, in his view of the world – to such an extent that we are precipitated into a ‘Hard Brexit’ that resembles North Korea’s ‘Juche’ isolation; but that, surely, is unthinkable, and I prefer to view this incident as ‘merely’ thoughtless.
For special values of ‘merely’.
Brilliant! What a very interesting and thoughtful essay on the current mindset of the right-wing politicians in our government right now.