Britannia Waives the Rules

Boris Johnson has achieved the remarkable feat of uniting five of his predecessors as British prime ministers, many of his own MPs, the Scottish government, Ireland and the European Commission in condemnation of his plan to violate the international treaty on withdrawal from the European Union, which his government agreed last October and put centre stage in the subsequent UK election campaign. Writing in the Daily Telegraph, Johnson had claimed: ‘The EU would be willing to use a treaty, negotiated in good faith, to blockade one part of the UK, to cut it off [and] threaten to destroy the economic and territorial integrity of the UK.’ He also said ‘they might actually stop the transport of food products from GB to NI’.

The removal of the hard border within Ireland, a key element of the peace process established by the 1998 Good Friday Agreement, was always clearly incompatible with the UK leaving the European single market, which would require customs checks on goods passing between the UK and EU. Johnson’s bill would allow ministers to decide what goods crossing the Irish Sea should be subject to customs checks and what constituted state aid in Northern Ireland. The EU withdrawal agreement also has provisions ensuring that businesses in Northern Ireland will still abide by state aid rules. Brandon Lewis, the UK’s secretary of state for Northern Ireland, said the new bill would ensure businesses in Northern Ireland had ‘unfettered access to the rest of the United Kingdom without paperwork’. However, the bill would override the special protocol agreed for Northern Ireland, seen as vital to preserve the delicate peace there. Lewis astonished MPs when he admitted that the bill ‘does break international law in a very specific and limited way’. The most senior British legal civil servant, Jonathan Jones, resigned over the plan.

Michael Gove defended the internal market bill as necessary to protect the territorial integrity of the UK, insisting the government was acting ‘within the rule of law’ and behaving in a ‘constructive and pragmatic’ way. The Cabinet Office minister said: ‘These steps are a safety net, they’re a long-stop in the event – which I don’t believe will come about but we do need to be ready for – that the EU follow through on what some have said they might do, which is in effect to separate Northern Ireland from the rest of the United Kingdom.’ But the EU’s chief Brexit negotiator, Michel Barnier, tweeted: ‘Protocol on Ireland/Northern Ireland is not a threat to the integrity of the UK. We agreed this delicate compromise with Boris Johnson and his government to protect peace and stability on island of Ireland.’

Writing in the Sunday Times under the headline ‘Johnson must drop shameful no-deal Brexit bill or be forced to by MPs’, the former Tory prime minister John Major and ex-Labour PM Tony Blair asked how Johnson’s bill could be compatible with the code of conduct (which obliges ministers to follow the law) and asked: ‘How do we salvage credibility as “global Britain” if we so blatantly disregard our commitments?’ They warned that the bill could torpedo the peace process in Ireland, the British parliament’s credibility and the UK’s reputation. ‘If the government succeeds in its plans, what constitutional audacity will be beyond it?’ Major and Blair wondered. Gordon Brown, a former Labour prime minister, called the move a ‘huge act of self-harm’. The former Tory PMs David Cameron and Theresa May have also criticised the plans. The former Tory leader and QC Michael Howard said the bill would damage the UK’s ‘reputation for probity and respect for the rule of law’. Speaking in the House of Lords, he asked: ‘How can we reproach Russia or China or Iran when their conduct falls below internationally accepted standards when we are showing such scant regard for our treaty obligations?’

Other Tory rebels to defy the three-line whip included two former Northern Ireland secretaries, Julian Smith and Karen Bradley; Sajid Javid, the former chancellor, and Geoffrey Cox and Jeremy Wright, both former attorneys-general. The Irish foreign minister, Simon Coveney, said ‘trust has been damaged and eroded’ between the EU and UK. In the US, the Democrats warned that any move to undermine the Irish peace accord would jeopardise Johnson’s coveted UK-US trade deal. The commentator Jonathan Freedland said that by being willing to break treaties, Britain ‘announces itself as a rogue state’ and recalled how Johnson’s prorogation of parliament had been ruled illegal (see Update, September 2019).

The website ConservativeHome listed 30 Tory MPs who did not vote in the first reading of the bill (though not all would have done so out of opposition to the bill). Some, such as Geoffrey Cox, the former attorney-general and QC (whose article in the Times was headlined: ‘Honour rests on keeping our word’), have said they would support the bill if certain conditions were met, such as the EU manifestly not acting in good faith. However, the government has a huge majority of 80 seats in the Commons and can probably ride out the rebellion. It also appears to have calculated that even if the internal market bill outrages those in Westminster, most of the public are not following the debates and have little interest in the EU negotiations, as a recent YouGov poll suggests.

Meanwhile, another egregious example of the UK government flouting international law can be seen in the festering sovereignty dispute with Mauritius over the Chagos Islands – a legal quagmire as toxic as the country’s recent oil spill. The UK bought the archipelago from Mauritius for £3m in 1965 and leased it to the US, forcing Chagosian families to leave so the US could turn Diego Garcia island into a strategically vital airbase. WikiLeaks’ release of US embassy cables, published by the Guardian in 2009, proved that establishing an Indian Ocean marine reserve was largely aimed at preventing Chagos Islanders’ resettlement. A Foreign Office mandarin declared: ‘We do not regret the removal of the population.’

In 2017 the UN General Assembly voted overwhelmingly to ask the International Court of Justice (ICJ) to examine the archipelago’s legal status. In February 2019, the ICJ advised that the islands were not lawfully split from Mauritius, which had been forced to cede them in return for independence, and called on the UK to return the islands ‘as rapidly as possible’. The UK argued that as it had not consented to the ICJ hearing, it was merely an advisory opinion, thus not binding, and ignored it. A UN resolution in May 2019 gave the British government six months to give up the islands. This the UK also ignored, insisting on its right to retain the islands. Mauritius said the UK was now an ‘illegal colonial occupant’. The islanders then lodged claims for $100,000 damages each from the US. Noting that a US military base in Djibouti costs $70m a year, their lawyer said: ‘The Chagossians, who as a people were utterly devastated by their deportation … are seeking only a small fraction of the back rent.’

Writing a month before the British government’s decision to renege on the EU treaty, Stephen Allen, a law lecturer at Queen Mary University of London, said: ‘The UK’s refusal to relinquish control of the Chagos Islands … seriously weakens its ability to lecture other states about living up to their human rights obligations.’ Allen noted that Mauritius was backed by several international organisations, including the Non-Aligned Movement; the Organisation of African, Caribbean and Pacific States; the African Union; and 134 developing countries known as the G77. Nevertheless, he concluded that the British government believed ‘the benefits accruing from its “special relationship” with Washington vastly outweigh any benefits accruing from complying with international institutions and international law … The cost of its position is its credibility on issues of international human rights.’

The UK appeal court heard a challenge from two islanders in May that the refusal to let them return was a continuing breach of their human rights and not just a historical injustice. When this was dismissed, Olivier Bancoult, head of the Chagos Refugee Group, vowed to take the fight to the UK’s supreme court. In what appeared to be a concession by the UK, it told Bloomberg that while ‘the manner in which the Chagossians were removed from the islands in the 1960s and 1970s was wrong, [it] opposes their resettlement on security grounds.’

Writing for the Lowy Institute, Jagdish Koonjul, Mauritian ambassador to the UN, suggested that with UN member states obliged to support ‘the completion of the decolonisation of Mauritius’, it was only a matter of time until the UK ceded sovereignty. ‘International law is unequivocally on the side of Mauritius,’ he said. ‘The writing is on the wall: the UK’s stand in rejecting the ICJ advisory opinion and the accompanying UN General Assembly resolution is not sustainable … the UK will realise that its own interests require it to get on the right side of history. The plight of the former inhabitants of the Chagos archipelago, people of colour whom the British forcibly displaced from their homes, is not likely to be forgotten.’