Since my last post I’ve been saying to myself that I can’t possibly write a response to the government’s stance on Brexit or Covid as there are actions this government has taken that make most sane people do a double take, and in particular I note the corruption of this government in awarding contracts to companies without the proper tendering process. But two actions of, first of all, awarding a major role to an Australian ex-politician with a use-by-date that is long been passed, and second, of knowingly and intentionally aiming to break international law, albeit in a specific and limited way, has made my jaw and the nation’s jaw drop to the floor and beyond. You what?
I had begun to do the reading for an analysis of the state of America, yup, I’m aiming for an analytical piece with lots of research ready for just before or just after the November election, but these two events have stopped me in my tracks. I have truly become a female version of Victor Meldrew (Mr Meldrew being a much loved character in a British sitcom) who with an upward, bewildered and enquiring tone was always saying ‘I cannot believe it’. I mean, you cannot believe it, but believe it you have to.
First, the appointment of Abbot as a UK trade envoy, which is a mere side show compared to the second issue of our nation’s potential law-breaking. But as soon as people got wind of this appointment there was an outcry from most pundits, yet despite this, the government appointed Abbot, which seems to imply that it Does. Not. Give. A. S..t. Forgive me, but I thought he was a failed politician ousted by his own party? No? Yes? And also isn’t he a climate change denier and sayer of misogynist and sexist comments? Yes? No? I mean, why on earth….?
I hear he’s been on the public speaking/think-tank circus or circuit, where he’s been heard to support both Trump and Brexit, and maybe that’s the reason he’s seen as a worthy candidate to represent Britain? Maybe. Also apparently (as I wouldn’t really know having not followed the trajectory of his career with much thoroughness) he is an evangelist for free trade. Oh, bully for him.
Anyway, the way to look at Abbott’s appointment is that he won’t actually be doing any of the nitty gritty of any trade deal with the EU, or elsewhere, he’s not going to be the details man, shades of Johnson there (and more about Johnson’s lack of doing detail in a ‘mo) no, instead, because of his views on trade, and the fact that at some point when he was around Australia signed trade deals with China, Japan and South Korea, Abbot will more likely to be wheeled out when there is a slight delay or worry or blockage to any trade deal to get it all moving again. Well, great, nice to know our country is being represented in trade talks by such a sensitive and fine upright version of mankind.
And the other issue? This is Boris Johnson and his attempt to unpick bits of the Withdrawal Agreement that he signed with the EU a few months ago. What has happened is that the Internal Market bill, which contains within it powers to override the agreed Northern Ireland rules on state aid for British firms, and the agreed protocol that requires checks on good and services crossing the Irish Sea, was put before the Commons last Wednesday (9.9.20).
What exactly is this about, because this is scandalous and scurrilous behaviour. Nations, generally speaking, do not unilaterally unpick international treaties, they are negotiated, agreed and signed and there they rest until the next treaty. First of all, one has to understand that the Withdrawal Agreement, signed by Boris Johnson and heralded as a great victory for him was 95% the result of Mrs May negotiators, and the 5% that was Johnson’s was actually a retreat from Mrs May’s defiant belief that there should be no checks and balances on goods at the border anywhere between Northern Ireland and Ireland. In other words this was not even a retreat it was an actual defeat for the United Kingdom to have a border in the Irish Sea (I mean, in the sea? You couldn’t make this up) So one might argue that what Boris Johnson is doing is only right and proper. You could also argue that Johnson does not do detail and may not have realised what he was signing up for, and I have seen pundits suggesting this, but even so, treaties are not usually unpicked a few months later. But hang on a minute, I said quite casually in that last sentence that Johnson doesn’t do detail – he doesn’t – but the Internal Market bill is a 100-page complex document with immense legal implications for our relationship with the EU, so someone has been thinking about this. And indeed, as this bill appeared just as talks on trade and the UK’s relationship with the EU are to begin (And people there were no leaks about this bill. That’s interesting) one has to ask is this a bluff to force the EU to compromise or is this a blunt instrument to halt the talks and crash out? Furthermore, a cabinet minister has admitted in the Commons that the government, with advice from its top legal advisers (who have been castigated for this advice) will deliberately break international law. I would contend that as this bill has quite obviously been worked upon for months, one has to conclude that the entire situation is a planned and formal government position.
If this bill becomes law (and it may not) ironically the outcome will be that with a no-deal far more of a proposition a hard border between Northern Ireland and Ireland is ever more likely. Yet the actual sticking point for mutual agreement between the EU and the United Kingdom seems to be State aid.
What is this State Aid and why on earth would such a right-wing Conservative government get hung up over handing out money to businesses? This seems very odd, so let’s look closer at what this State Aid is.
State Aid is an element of the Single Market, which is usually understood as the freedom of movement between EU countries of persons (the contentious one for many); goods; capital; and services. But the Single Market also has within it elements around competitiveness between countries, and has regulations on competition, public procurement and state aid. And with regard to State Aid, apparently ever since the treaty of Rome in 1957 member states have been prevented from giving businesses, companies, industries any aid that would distort competition. This must sound a somewhat weighty restriction but again apparently there are many exemptions particularly so during this current pandemic.
The problem between the EU and the UK is that the EU wants a level playing field. It wants the UK to respect and adhere to EU environmental standards (oh please, yes) worker rights (absolutely) and with regard to state aid, it doesn’t want the UK subsidising UK companies who go on to undercut European firms (fair enough, you can see where they are coming from). The UK government meanwhile argues this defeats the whole purpose of the break from the EU.
The problem is that, while most Leavers would/could say, ‘duh, exactly’, the UK government, in the person of Johnson, signed up to the Withdrawal Agreement. Now the thing is a substantial part of the Withdrawal Agreement (Article 10) is dedicated to the question of State Aid and Northern Ireland, and it says quite clearly that the whole of the UK will continue to be affected by these rules even after it leaves the EU. This ‘oven-ready’ deal was signed and then enacted into UK law through the European Union (Withdrawal Agreement) Act 2020 in January of this year. The crux of this current debacle is that now, this new bill in Clause 43 sets out to look at the interpretation of Article 10 and to disapply or modify the effect of, Article 10. And in Clause 45 the bill states that clauses 42 and 43 will have effect regardless, notwithstanding any relevant international or domestic law which will be incompatible with clauses 42 or 43.
This is dynamite. This is not specific and limited, this is go ahead ignore UK law, in the form of the Withdrawal Agreement Act, go on, break that domestic law, and then go on, do, break international law. So instead of being a rule-taker we are rule-breakers? What is this government thinking?
I would contend that this is not Boris Johnson signing without knowledge of what is within the Withdrawal Agreement, instead it was a very useful, coherent act for the media, for the public, for leavers, for the right, to sign the oven-ready deal – it looked so good. And now? With the signing having served its purpose, it is time to renege on the agreement.
Forget that this might undermine any future trade agreements with any country elsewhere in the world or has already caused huge international condemnation, this is a deliberate move from this government cabal to have a two-tier system of law. In one, the laws that touch us all, the majority and even the legal profession who might rule against the government, and have done, the law must be followed and obeyed, and, it may even hinder, pursue and persecute, think of the Windrush scandal. And with the other there is impunity and license to ignore the rules and the law of the land, and the international community and do what is expedient. Indeed I’ve seen it argued and tend to agree that this entire episode is about Johnson demonstrating his strength rather than his blustering dimness. If so, be uneasy, this government cannot be trusted to think of the good of the people, rather it is setting up precedent to do as it pleases (that 80+ seat majority helps).
So do not think of this is another calamitous action, or even a FUBAR situation (I don’t have to explain this, do I) this is the reconfiguration of norms, the realignment of the paradigm, the new way of governing. This bill is central to this government’s disposition. We live in challenging times.
Penny Kocher 14 September 2020
David Allen Green. Can the government breach the Brexit Withdrawal Agreement? Financial Times Opinion (YouTube) Please note I acknowledge my debt to Green and this wonderful exposition of the situation. Do have a look. (10 minutes)
David Allen Green. The Anatomy of Potential Constitutional Crisis – Part III – the Failure of the Gatekeepers. The Law and Policy Blog. 14 September 2020 (This is just published so very hot of the press!)
David Allen Green. The Anatomy of a Potential Constitutional Crisis. The Law and Policy Blog 12 September 2020
Nesrine Malik. For the Tories, breaking the law is just a sign of strength. Guardian, 14 Sept 2020
Jennifer Rankin. Brexit talks: why the wrangles over state aid. Guardian, 8 September 2020