It is probably the first time that the House of Commons recorded a statement by a cabinet member that a legislation brought by the government of Great Britain will breach international law. In a new normal setting of the British parliament, where Covid-19 health rules imposed limits on the physical presence of MPs and ministers, the extent of the shock was beyond anyone's guess. However, despite quite a significant dissent within the Treasury bench, Prime Minister Boris Johnson remains unmoved. Five predecessors, three from the Conservatives—John Major, David Cameron and Theresa May—and two Labour ex-PMs—Tony Blair and Gordon Brown—in unison decried the legislation, saying it would damage "trust" in the UK and its standing in the world.
The aim of the amendment is to change parts of the EU withdrawal agreement, negotiated last year. Northern Ireland Secretary Brandon Lewis on September 9 told the House that the new bill would break international law in a "specific and limited way". Later on September 14, Prime Minister Johnson told MPs in the Commons that he did not wish to use the law; rather the aim was to have an insurance against failure in clinching a deal with the EU. And Johnson got his way, as the bill has passed the first hurdle with a comfortable majority in the Commons. However, the number of abstentions shows deep unease within the ranks. It will now be vetted by a parliamentary committee and several amendments are expected.
The proposed Internal Market Bill will do away with any new checks on goods moving from Northern Ireland to Great Britain. It gives UK ministers powers to modify or "disapply" rules relating to the movement of goods that will come into force from January 1, if the UK and EU are unable to strike a trade deal. Under the withdrawal agreement, export declarations will be required for goods moving from Northern Ireland to Great Britain and some rules will be followed on state aid to exports. This issue of a virtual or presumptive border on the Irish Sea was at the centre of a huge debate last year since the Republic of Ireland is still a member of the EU, whereas Northern Ireland (as a part of the UK) will no longer be. This "soft" border between the Irelands has always been a huge point of contention in Brexit debates. PM Johnson had signed up to such complicated arrangements in order to get "Brexit done" by the end of 2019.
Unsurprisingly, the European Union despatched a top official to London, the European Commission Vice-President Maros Sefcovic, to demand the withdrawal of the amendment bill, issuing an ultimatum until the end of the month. The EU Commission is now threatening legal actions against any such breach. A prescheduled separate trade talk between the chief EU negotiator Michel Barnier and his UK counterpart David Frost also ended without much headway. While heading back to Brussels, Barnier, in one of his briefest comments, told the waiting press that "trust and confidence are and will be key" in making any progress in future talks.
And, trust is now at stake. Many of the leading voices in the Conservative Party and opposition Labour and other regional parties have questioned the government's motive. They argue breaching international law will not only harm relations with the UK's largest trading partner, but erode trust and confidence in Britain across the world. Newspapers suggest a few dozen MPs within Johnson's party have indicated they will vote against it. It faces even harder resistance in the upper chamber, the House of Lords, where the ex-leader of the Conservatives Michael Howard said the bill would damage the UK's reputation as a protector of the rule of law.
And an unlikely intervention came from the United States too. It was a very strong rejection of the proposed British amendment. House Speaker Nancy Pelosi said: "Whatever form it takes, Brexit cannot be allowed to imperil the Good Friday agreement, including the stability brought by the invisible and frictionless border between the Irish Republic and Northern Ireland. The UK must respect the Northern Ireland protocol as signed with the EU to ensure the free flow of goods across the border." She even went as far as to warn that if the UK Brexit treaty undermines the Good Friday accord, there will be absolutely no chance of a US-UK trade agreement passing the Congress.
Despite the EU ultimatum, a senior member of the cabinet Michael Gove said the UK had made it "perfectly clear" it would not withdraw the bill. The government says parliament is sovereign and can pass laws which breach the UK's international treaty obligations. Speculations are rife that PM Johnson wants a no deal Brexit and hopes to blame the EU for not accepting a realistic proposition. His cabinet colleagues are arguing that the proposed amendment is not a rejection of the withdrawal agreement, but a necessity to implement it for maintaining uniformity in Britain's internal market. Talks, however, are set to continue as the EU remains cautious about shouldering any blame of abandoning the negotiations.
Downing Street says that parliament has the sovereign right to pass any domestic legislation it sees fit and necessary for protecting national interests. Opponents of the government move argue that it is an established principle of international law that a state, acting through its executive government, is obliged to discharge its treaty obligations in good faith. So far, five former prime ministers, two former attorney generals and a former chancellor have come out against the move, warning that breaking international law would come with a price that could never be recovered.
Among them, John Major's words are quite striking when he said, "For generations, Britain's word solemnly given has been accepted by friend and foe. Our signature on any treaty or agreement has been sacrosanct." He continued, "Over the last century, as our military strength has dwindled, our word has retained its power. If we lose our reputation for honouring the promises we make, we will have lost something beyond price that may never be regained."
Great Britain has a huge legacy in formulating rules of law and developing rule based international order. It has become a reference point for many decades. It would be an irony if it now becomes synonymous to a great breacher of law.
Kamal Ahmed is a freelance journalised based in London.