Here we go again
Brexit negotiations hit a formidable new barrier
By threatening to rewrite the withdrawal treaty, Boris Johnson’s government edges closer still to no deal
Rumours about a flagrant breach of international law first surfaced in the Financial Times on the evening of September 6th, only to be belittled by the government.
A few brave Tory backbenchers cautioned against such a step.
Theresa May, the former prime minister, asked: “How can the government reassure future international partners that the uk can be trusted to abide by the legal obligations of the agreements it signs?”
It emerged that the government’s top legal adviser, Sir Jonathan Jones, had resigned apparently in protest at what was afoot.
On September 9th the government published the bill in question, confirming the rumours had substance.
At issue is the Northern Ireland protocol, which is part of the Brexit withdrawal agreement ratified in January.
The protocol provides that, although the province is part of the United Kingdom, it will come under the European Union’s customs code and single-market rules.
The intention is to avert a hard border in Ireland, which it is feared would upset the island’s fragile peace. Since Great Britain will leave both the single market and the customs union at the end of the transition period on December 31st, this necessarily implies some checks on goods trade between Northern Ireland and the mainland.
Although he trumpeted the withdrawal agreement last year, Boris Johnson has long jibbed at any such notion. He recently declared once again that there would be a border in the Irish Sea only over his dead body. Now his government has found a way to push against it, using the internal market bill published on September 9th. The bill purports to override the withdrawal agreement, which is an international treaty, in three ways.
First, it gives ministers the power to overrule any requirement for export declarations for goods moving from Northern Ireland to Great Britain. Second, it arrogates to British ministers the power to decide if goods moving from Great Britain to Northern Ireland are at risk of moving on to the Irish Republic (which would necessitate border checks). And third, it gives the government the unilateral right to decide whether to inform the eu about state aid that affects firms operating in the province and might be caught by eu rules.
The government claims these changes are tidying-up measures to reassure Northern Irish businesses if no trade deal is agreed. Yet clarifications to the agreement are meant to be made in a joint eu–uk committee, not unilaterally. Ursula von der Leyen, the European Commission president, called the withdrawal agreement “an obligation under international law and a prerequisite for a future partnership.” Michel Barnier, the eu’s Brexit negotiator, said that “everything that has been signed in the past must be respected.” The eu is considering taking legal action.
It is possible that Mr Johnson sees all this as tactical manoeuvring to push the eu into making concessions that would help get a trade deal through. His proposal that, if a deal is not done at the eu summit on October 15th, the talks should be abandoned and both sides should prepare for no deal and his claim that no deal would be a “good outcome” may reflect similar tactics. So could a promise by his Brexit negotiator, David Frost, that, unlike Mrs May’s team, he would not blink first.
Yet the latest ructions have in fact made a trade deal considerably less likely. The negotiations, which resumed in London this week, remain stuck on access to British fishing waters and state-aid rules the eu wants Britain to observe. The state-aid changes in the new bill for Northern Ireland only confirm fears in Brussels that a post-Brexit Britain may deploy public subsidies to undercut eu firms. These fears were not allayed by the government’s statement this week that it planned to follow only the World Trade Organisation’s relatively light anti-subsidy rules.
With a month to go until the summit, the impasse seems to point to no trade deal. Some of Mr Johnson’s supporters would welcome this. Indeed, many Tory mps see this week’s changes to the withdrawal agreement as but a start. They say the agreement, including the money being paid to Brussels, was accepted only as a prelude to a trade deal. Should the latter fail to materialise, the former should also be scrapped—never mind that it is an international treaty.
What of Mr Johnson’s claim that no deal would be good for Britain? It is certainly not what he promised voters ahead of the election last December, when all the talk was of his already prepared “oven-ready” deal. Yet it is true that, under a bare-bones trade deal, there would also be enormous disruption to exports and long queues at the port of Dover. The economic impact of no deal is only marginally worse than this, although car and food exporters would face unwelcome tariffs.
The bigger objection to no deal is not its economic impact but what would follow. The decision to override the withdrawal agreement looks almost certain to kibosh hopes of a trade deal with America. Changes to the Northern Ireland protocol raise the spectre of a hard border in Ireland. And leading American politicians, including Joe Biden, the Democratic candidate for president, and Nancy Pelosi, the House speaker, have said they cannot back a trade deal if the peace process in Northern Ireland is under threat.
Nor would going back to the eu to reopen trade talks be easy. After a no-deal Brexit, it is sure to put the same issues back on the table: fisheries, state aid, the level playing-field and the rest. And it will revert to the same arguments about avoiding a hard border in Ireland. The Brexit negotiations begun by Mrs May in 2017 were quickly hijacked by the seemingly insoluble conundrum of what to do about Northern Ireland. Those being pursued by Mr Johnson could now meet the same fate. ■
This article appeared in the Britain section of the print edition under the headline “A new barrier”
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