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9 June 2022

The Tories are heading for a repeat of the Brexit wars

Boris Johnson’s argument that rewriting the Northern Ireland Protocol complies with international law is unravelling.

By David Gauke

Last week I had a stab at predicting how the next few months would play out. So far, so accurate. An early confidence vote was held, the Prime Minister won it but the rebellion was substantial (I forecast at least a third of MPs, it turned out to be two fifths), and he carried on.

To be fair, these were the easy predictions, alongside forecasting Conservative defeats in the Wakefield and Tiverton & Honiton by-elections to be held on 23 June. Where I metaphorically placed a bet with longer odds was on an accumulation of bad news – and the Privileges Committee investigation of Boris Johnson’s statements about Downing Street parties, in particular – making the continuation of Johnson’s premiership intolerable even to the current Conservative Party. And assuming that all this happened, I made the argument that Liz Truss was more likely than any other candidate to succeed him, although I did not put her chances of prevailing above 50 per cent.

Given where we now are, it is worth returning to the likely grimness of the post-confidence vote/pre-Johnson defenestration period. (Of course, Johnson may not be defenestrated but, if so, the grimness will only continue for longer.) The next few months were going to be difficult in any event because of the rising cost of living. In addition, the incentives for both Johnson loyalists and Johnson sceptics are to dig in.

For some who voted against Johnson, now is the time to “accept the result” and for the party to “come together” and focus on “taking on the Labour Party”. In other words, give up on removing Johnson. It may be a tempting option but it is indefensible. If Johnson was unfit to hold office when the votes were cast on Monday (6 June), he remains unfit to hold office today. The announcement that 211 Conservative MPs backed him should not change the assessment.

An accommodation with Johnson will also make his opponents look foolish, especially the more senior rebels. Jeremy Hunt – not by nature a trouble-maker – showed courage in publicly calling for Johnson to go but he is now so steeped in blood that there is no return. He cannot fight the next general election under Johnson’s leadership, let alone accept ministerial office from him, without being much diminished. The two 2019 contenders for the premiership are now in a political fight to the death.

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The Chief Whip, Chris Heaton-Harris, is urging Johnson to be emollient and try to heal the party. But when under pressure (and he is certainly under pressure) and irritated (and he will certainly find the rebels irritating) Johnson becomes even more combative and ruthless. He is getting advice from others to demonstrate his strength – sack unsupportive ministers, withdraw the whip from those voting against government legislation, even threaten a general election.

Europe, once again, is likely to be the focus of conflict. The government again put back the publication of the legislation which would unilaterally rewrite the Northern Ireland Protocol of the Brexit agreement but it will soon be a test of resolve for those Conservative MPs who opposed Johnson because of distaste over lawbreaking.

It was striking that Jesse Norman, one of the rebels, highlighted the likely illegality of the policy in his excoriation of Johnson’s political agenda, and in doing so was supported by the chairman of the Northern Ireland Select Committee, Simon Hoare. Whereas Conservative objections in the Commons to the Internal Market Bill, with its “very specific and limited” breaches of the law, fizzled away, there might be a little more resistance at a time when the Prime Minister’s authority has shrunken.

The government, of course, argues that the legislation complies with international law but it is an argument that is unravelling. On Tuesday PoliticsHome reported that it had seen correspondence in which “a senior figure advising the government on legal matters” had questioned the credibility of the legal arguments upon which the Attorney-General, Suella Braverman, was seeking to rely.

Sam Coates of Sky News followed up by saying that James Eadie QC, the First Treasury Counsel, was explicitly told not to advise on the international law aspects of the new legislation but to assume that it was compliant. When challenged on this in the Commons, Johnson said that the report was “not correct”. 

Coates responded by quoting Eadie’s advice making it clear that he was not asked to advise on international law but, in any event, he thought that the advice the Attorney-General had chosen to accept was wrong. The sidelining of Eadie is highly irregular, especially as some MPs had previously been reassured that Eadie had opined on the legislation (he has, but not on the international law aspects). The fact that Johnson has misled the House of Commons, yet again, should not be ignored either.

Even with a flimsy legal argument it is hard to see the government stepping back from this legislation. I mentioned last week that Truss had been working with the European Research Group of Brexiteer Tory MPs on its drafting. The ERG amendments have been resisted by other ministers but it is unlikely that the Prime Minister will want to be completely outflanked by his ambitious Foreign Secretary.

So we could be faced with the prospect of bitter rows over Europe, a minority of Conservative MPs trying to prevent a reckless course of action while Johnson appeals to the right and is encouraged to deploy exceptional measures against his opponents. It could all soon start to feel like the Brexit wars of autumn 2019 again. This, I suppose, may give Johnson – if few others – some encouragement.

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