We all remember, a year ago this September, the drama that ensued when the United Kingdom Supreme Court received more television and media coverage than it and its predecessor court had ever received before. We remember a Government petition that was so popular that it crashed the Government website, and it was not unusual to see a green glow on computer users' faces as they stared at a Twitch feed (which was hastily setup in order to divert traffic from the official Gov.uk petition site) as the number of signatures increased minute by minute. Such was the furor that resulted at Boris Johnson's Government proroguing Parliament. It soon became clear that this action was taken for no other reason that he did not wish to allow MPs to inconvenience him by carrying out their obligation to debate Brexit. We must also remember that the Supreme Court came to the decision that this action was unlawful. Despite the international flavor of the subject matter, the unlawful proroguing of Parliament was most certainly an internal UK matter. Whilst there was much international criticism of the decision to take such action, what we discovered this week is what happens when such ham–fisted idiocy is trialed on a much wider scale.
What actually happened?
Boris Johnson signed the Withdrawal Agreement into UK law in January of this year. The agreement, as is usually the case, contained many schedules and appendices, including certain side agreements, which included the Northern Ireland Protocol. In a bid to avoid a hard border on the island of Ireland, the UK Government was required to agree in that protocol that Northern Ireland would be required to keep itself aligned with certain EU standards. The greater the delta between the United Kingdom and the EU, the greater the number of checks required (notionally) in the Irish Sea. For example, if the United Kingdom agreed a trade deal with the United States, which included the sale in the UK of (the now infamous) chlorinated chicken, then additional checks would be required to ensure that such products didn't end up entering Northern Ireland. Every step towards the outside world could, potentially, lead Northern Ireland to closer alignment with the EU.
Then came the announcement of the Internal Market Bill and the day before its publication, the Northern Ireland Secretary, Brandon Lewis, when pushed directly on the point, admitted that the bill would "break international law in a very specific and limited way".
The Government then published the Internal Market Bill (on 9th September 2020) and the shockwaves were palpable. It became clear that the potential breach of international law wasn't a single definable instance in particular circumstances, but a power given to ministers which would permit them to unilaterally override the withdrawal agreement and UK regulations which were issued in accordance with the override were "not to be regarded as unlawful on the grounds of any incompatibility or inconsistency with relevant international or domestic law". In other words, if ministers agreed, they could grant themselves immunity from any legal action, which arose from a breach of the Northern Ireland Protocol to the withdrawal agreement. In no way can this be considered "very specific and limited".
Why would Johnson have taken such action?
There is certainly a belief that this is a negotiating tactic. Johnson had already set a deadline to walk away from a trade deal negotiation on October 15th, if he found himself dissatisfied by the deal on offer. As the Government approached that deadline it would make sense that Johnson, actually fearing leaving without a deal (despite all of his public bluster) felt the need to inject some urgency into the matter and a threat to break international law by reneging on a treaty agreement, would force the EU to compromise.
Where does this leave the United Kingdom?
The short answer is: neither united within itself or with anyone else. The long answer is more nuanced and mired in international diplomacy.
The ramifications on a UK level are somewhat surprising. The whole thrust of Johnson's argument to leave the EU was that the UK would take back power for itself and, certainly the Internal Market Bill oversteps what was agreed between the parties, but there had been hope on the part of the devolved nations that some of that power would flow through to them. The publication of this bill will most certainly disillusion any of the devolved governments that this will ever be the case. Westminster wants all of the powers for itself — even powers that were never on the table. This is a naked and blunt power grab and the devolved nations are not the intended beneficiaries.
It is difficult to fully comprehend the international ramifications of even the threat of such action. There are many countries, which renege on their international obligations. The United States withdrawing itself from the Paris Agreement on climate change would be one such example, and Trump received a barrage of both scorn and criticism on both the national and international stage. However, there is a withdrawal process set out for the United States to leave the accord, and the United States is complying with it. Therefore, for the United States at this particular time and under this particular president, the international criticism is likely the only backlash. Were the United States to attempt to engage in international discussions regarding climate at this point, then those at the table would likely treat Trump's emissaries with skepticism and incredulity. However, a seat at that table doesn't appear to be anywhere near the top of the priority list of one Donald J. Trump — the fall–out will be the burden borne by the next President if he (or she) chooses to attempt to engage in such discussions.
More recently, a new security law imposed by China over Hong Kong was declared by Johnson to be a breach of Hong Kong's autonomy: conflicting with the country's constitution; and, the "one country, two systems" agreement included in the 1984 Sino–British Joint Declaration regarding the nation. This too was a breach of international law by China and one for which the United Kingdom along with a host of other countries denounced China for their breach of the treaty. Then too, China sought to minimize the effect of the legislation, saying that it was targeted at a minority. That did not save China from the international scorn it received for interference in the law of a country where it had no right to be involved. The only sanction which could be levied over China for its breach was a diplomatic one, and the UK suspended its extradition agreement with China and offered many Hong Kongers the right to a UK passport. The EU implemented limits on exports of equipment to Beijing and began to review its extradition arrangements. The UK alone would not have had the power to effect sanctions with sufficient force to make any difference.
Should a recounting of recent news be sufficient to convince the layperson that a strong relationship with the EU post–Brexit will be vital, then it should be enough to convince the UK's current prime minister. Certainly this whole situation has been sufficient to see previous holders of the post coming to the fore with both Theresa May and Sir John Major giving interviews in recent days. Major said that the breach would come with a price that could never be recovered (The Guardian, 09/09/2020).
Europe too must be feeling a bitter stinging rebuke at the United Kingdom's failure to remember the favors of the past. Ursula vor der Leyen, European Commission President, condemned the bill, stating that it would break international law and undermine trust in the UK Government. Charles Michel, former Belgian prime minister and President of the European Council, stated "breaking international law is not acceptable and does not create the confidence we need to build our future relationship".
What happens now?
Johnson's conservative party does have a substantial majority in the House of Commons, and barring a revolt, it is entirely possible that the Commons will pass the legislation. Where things will be more difficult for the bill, is in the House of Lords where, party affiliation aside, the more seasoned and reasoned might find the matter more difficult to stomach. In any case, the threat has now been publicly made, and the repercussions will linger longer than Boris Johnson's tenure at Downing Street.