The government is claiming that controversial new legislation to override the Brexit withdrawal treaty, and therefore breach international law, is necessary “to protect the peace process in Northern Ireland”.
The claim, made by Matt Hancock on the Today programme on 9 September, and again by the Prime Minister at PMQs, is nothing short of remarkable. It has already caused an outcry in Northern Ireland and has “gobsmacked” a senior Conservative and former cabinet minister (quite possibly Theresa May herself, from reading between the lines), who contacted the BBC’s Laura Kuenssberg to say: “I cannot allow anyone to get away with saying the government is doing this to protect the peace process. This does the precise opposite. It is about the internal market in the UK and is more likely to lead to a harder border which will imperil the peace process.”
But what exactly do Boris Johnson and Matt Hancock mean by their extraordinary claim? Does this government have any basis for using the peace process as justification for breaking international law?
To answer those questions, you have to look in the Sun newspaper. Its political editor has been briefed that the government’s decision to override the withdrawal agreement in UK legislation came after what they perceived as “veiled threats” from the EU negotiating team that, in a no-deal scenario, the EU could declare food exports from Great Britain to Northern Ireland effectively illegal.
This is because, under the terms of the Brexit deal that, don’t forget, Boris Johnson himself personally renegotiated, signed, campaigned on and brought into law, “products of animal origin” such as meat and dairy products that are exported from the UK mainland to Northern Ireland will be subject to EU oversight. It has always been assumed that the UK mainland would be given approval to export these goods into Northern Ireland. The Sun reports, however, that EU negotiators hinted that this may not be the case in a no-deal scenario.
When Boris Johnson told the chamber that the Internal Market Bill is designed to provide a “legal safety net” against “extreme or irrational interpretations” of the Northern Ireland protocol in the Brexit withdrawal agreement, this is what he meant. The UK supposedly perceived a threat to the UK internal market, and therefore to the integrity of the Union, and therefore to peace in Northern Ireland, and decided to legislate to prevent that happening, even though doing so breaks international law.
Unionists do, of course, have grave and legitimate grievances with the withdrawal treaty that the government signed. The precise way in which the EU interprets the withdrawal treaty is secondary to the fundamental point: the deal does, effectively, create an economic border between Northern Ireland and the rest of the United Kingdom, and the integrity of the UK internal market was undermined from the second Boris Johnson agreed to it. His government has spent months pretending this isn’t the case, and now, suddenly, is admitting that it is, that it signed the deal too quickly, and that, therefore, it needs to override its own deal to “protect the peace process”.
The most generous interpretation of the government’s move is that it has belatedly realised the extent of unionist discontent with its deal and is moving to change it at great political cost. But, as Richard Bullick, a former DUP special adviser to the Northern Ireland First Minister, said, the Internal Market Bill doesn’t fundamentally address unionists’ problems with the withdrawal treaty beyond rules on exit declarations. Instead, this new bill looks mainly set to override the EU on state aid provisions, the sticking point of UK-EU trade talks and, crucially, nothing to do with the peace process in Northern Ireland.
Second, the “threats” cited in the Sun today don’t provide any sound basis for breaching an international treaty in domestic legislation. The Prime Minister said at PMQs that the government needed a “legal safety net” against “extreme or irrational interpretations” of the Northern Ireland protocol. If the government believed this to be the case, it would have recourse to the specific safeguards that are already in place in the Northern Ireland protocol, allowing the UK to take action if it believes the EU is using its oversight in an unreasonable way. Even if there is a credible threat to the internal market, this plainly is not the way to resolve it.
The government’s new line looks like a cynical co-option of unionists’ concerns to justify an illegal move that has little to do with peace in Northern Ireland and, if anything, risks undermining it.
[see also: Is a no-deal Brexit now inevitable?]