Returning to the Withdrawal Agreement
“However, like most debates regarding Brexit, it’s not quite that straightforward. For starters, breaking international law happens as regular as clockwork.”
As I previously predicted, the UK is set to leave the European Union without a free trade agreement (FTA) in place unless something drastically changes before October. The Prime Minister has now taken back his grandiose visions of a fully-fledged FTA in exchange for what he calls the “Australian deal”. It seems as if the government is trying to position such an agreement as similar to the Canada-style deal, but the Australian deal is not a free trade arrangement at all. Australia is trading on WTO terms with the European Union, and a lack of agreement will mean the United Kingdom will do the same in the absence of a trading arrangement. What the government really means is they want WTO to be become an FTA after the fact, so it is more of a future ambition than a solid framer for what a future relationship will look like.
WTO means is there is another war raging with Brexit, a war the government promised would be over by Christmas but looks set to drag on for years. The Withdrawal Agreement (WA), ratified by both sides, is now in contention after sources from the UK revealed that the government were planning to break international law and subvert parts of the WA altogether if we were to leave without a deal. The EU has had concerns over how the UK planned to implement the entirety of the WA, and how the lack of an FTA could impact it but this move has still caused shock. International figures have condemned the move, government figures have resigned, and the media is in meltdown. These flames were fanned when Brandon Lewis openly stated in the House the rumours were true, and the UK planned to break international law in a, quote, “very specific way.”
To analyse this, we should look at both sides of the debate. On the one hand, and the argument most identify with immediately, the UK government should implement the Withdrawal Agreement because we signed it. To go back on our word and subvert a treaty sets a bad precedent, damages future negotiations, and shows the world the UK does not take the rule of law seriously any longer. This threat has furthered the EU’s stonewalling on making any kind of compromise, and it’s looking less likely they will flip and agree to the UK’s wishes at the last second as many insist they will. With the response to the epidemic already shrinking our economy, purposefully pushing a ‘No Deal’ scenario by making this brash and undiplomatic move is shocking to say the least.
However, like most debates regarding Brexit, it’s not quite that straightforward. For starters, breaking international law happens as regular as clockwork. When Australia turns away migrant boats, they are breaking international law. When Israel occupies certain parts of Palestinian territory, they are breaking international law according to the United Nations. When the UK holds onto some of its overseas territories, we are breaking international law. Law that cannot be enforced and goes over the heads of sovereign parliaments means very little in the grand scheme of things and there are few remedies at their disposal to sanction the UK.
Perhaps that doesn’t convince you, and you certainly couldn’t be blamed. The bad image of this move is undeniable and that alone could be enough to warrant it unwise. But what no one seems to recognise is certain parts of the Withdrawal Agreement are difficult to implement because they rely upon the agreement of a free trade deal. The Northern Irish Protocol is one of those mechanisms. Without a trade agreement, the European Union could interfere to enforce the protocol, treating the UK like a third country. In that case, the United Kingdom can use its legislative flexibility to make the proper arrangements how they see fit.
Furthermore, the UK could make the argument that the EU negotiated in bad faith as the Political Declaration states that the EU would work with the UK to agree an FTA and that has not occurred due to the insistence on ‘level playing field’ requirements, access to our fishing waters and other roadblocks that have not been resolved. The EU, after all, expressed a want to reach a Canada-style deal, before going back on its word and calling the proposal unworkable with ad hoc explanations as to why that was the case.
Outside of those customary arguments, the UK already gave itself the legislative power to act as it wished when it passed the amended Withdrawal Agreement Bill following Boris Johnson’s victory. As Steve Baker MP pointed out on Twitter, parliamentary sovereignty was explicitly outlined in the lengthy bill, that the UK could make any changes it wished without requiring EU consent. He also stated that this was the European Research Group’s (ERG) plan from the start, and the whole reason the Brexit ‘Spartans’ even voted for the Withdrawal Agreement in the first place. They agreed with the government behind closed doors that the option was always there to use a tech-based solution to subvert the Northern Irish Protocol in the absence of an FTA. It gave itself the legislative power, it had the plan agreed – all of that shows this is a meditated move and not a random one. Simply put, the WA and Future Relationship work hand in hand and, without one, the other becomes harder to implement.
That being said, the Prime Minister’s mandate was built upon ‘Getting Brexit Done’ and passing the WA in its current form and then implementing it. Poor excuses about how the process was rushed will not cut it. Whatever you may think, the Brexit War is far from over. Things have managed to complicate further, to no one’s surprise, of course.
