Brexit: reaping the whirlwind?

11/09/2020

It is quite possible that Monday could be the crucial day. That is when the United Kingdom Internal Market Bill comes to the Commons for its second reading.

If Tory MPs supinely give way to Johnson and give the Bill a free passage, the EU will know that it has a fight on its hands, and that its ultimatum is being ignored. But it will still have two weeks to wait before having to take action, whatever that might be.

There are still those who think that this is just a last-minute attention-getter on the part of Johnson, although it's pretty extreme even for him, and I doubt whether MPs would really appreciate being used as walk-on extras in this latest psycho-drama.

When you think about it, that would be the most extreme gambit of them all – pushing a Bill though Parliament, then to pull it at the eleventh hour, all in exchange for some unknowable concessions from the EU. But, if the "negotiating ploy" theory is correct, that's what it amounts to.

My gut instinct, therefore is that this is for real, although precisely what Johnson aims to get from winding up the Euros isn't at all clear. David Cameron, in his memoirs, calls Johnson "inchoate" and it's quite possible that the man hasn't thought it through.

Real or not, Johnson has most definitely put us on the path to a very rapid no-deal. The transition period, after all, is a creation of the Withdrawal Agreement (Article 126) and if the Agreement is terminated abruptly, then the transition period goes with it.

However, in pursuing the dispute procedure written into the Withdrawal Agreement, the parties are obliged to avail themselves of an arbitration panel, and normally this doesn't convene until three months after written notice has been given to start a consultation period.

One might wonder, therefore, whether the timing of this Bill is accidental, or whether it has come before the Commons with no time for the EU to initiate the formal arbitration procedure before the transition period automatically comes to an end.

The point here is that, in the EU's "ultimatum" (link above) Vice-President Maroš Šefcovic reminded the UK government that the Withdrawal Agreement contained "a number of mechanisms and legal remedies to address violations of the legal obligations contained in the text" which, he warned "the European Union will not be shy in using".

With that in mind, the situation for the EU gets worse. Not only is there a three month delay before initiating the arbitration process, once a panel gets going, it is given up to 12 months from the date of its establishment to deliver a ruling. However, either party can ask for the case to be treated as "urgent", in which case the panel has to make "every effort" to deliver its ruling within six months.

It should be noted that Å efcovic is confining the EU to using the mechanisms within the Withdrawal Agreement, in which case it does not seem possible that any formal action could be concluded before the transition period is already over.

That actually makes the widely touted threat of "legal action" rather weak, leaving the possibility of abandoning the "future relationship" talks. That could, of course, be exactly what Johnson wants. In his playbook, that might allow him to claim that the EU walked out and is therefore to blame for the failure to reach a deal.

On the other side, Gove already seems to have ruled out any prospect of the government backing down and, under the present circumstances, it is difficult to see how it could do so.

Faced with such a stern ultimatum from the EU, a climb-down at this stage would immediately be added to the list of U-turns which the government has already made, representing nothing less than a humiliation for the prime minister. That is most certainly how the media would present it.

On the other hand, there is always the possibility that the Commons could rebel, and refuse to give the Bill its second reading. However, there is no indication yet that there are sufficient (or any) MPs who would be prepared to defy a three-line whip.

Any parliamentary rebellion, if it is to come, may happen in the Lords. In addition to Theresa May – still in the Commons – and John Major, former Tory leader Michael Howard is a seriously unhappy bunny. This is what he had to say in the Lords yesterday:

Does my noble and learned friend simply not understand the damage done to our reputation for probity and respect for the rule of law by those five words uttered by his ministerial colleague in another place on Tuesday – words I never thought I would hear uttered by a British minister, far less a Conservative minister? How can we reproach Russia or China or Iran when their conduct falls below internationally accepted standards, when we are showing such scant regard for our treaty obligations?

The Lords have the power to delay this Bill for a year which means, if they are so minded, they could stop Johnson's adventure in its tracks. And that too would inevitably be seen as a humiliation for the prime minister, demonstrating an inability to get his own legislation passed.

Around this, there is the issue of whether MPs are bound be international law, or whether they have the constitutional right to vote for laws which contradict treaties. But in many respects, this is a red herring. Treaties are made between states and it is states which bear the responsibility for seeing that they are upheld.

Even the "invertebrate" Suella Braverman, rather unconvincingly acting out the role of Attorney General, has to concede that, "It is an established principle of international law that a state is obliged to discharge its treaty obligations in good faith". She adds that "This is, and will remain, the key principle in informing the UK’s approach to international relations".

She then goes on to discuss the "fundamental principle of Parliamentary sovereignty", but she really should have stopped there. The duty of performance rests with the Government, not Parliament. The MPs can express all the "sovereignty" they like, within the bounds of the Westminster estate, but in upholding treaties already ratified by Parliament, the Government is supreme.

We have an interesting situation here that, should Parliament vote to disapply all or part of a treaty, this does not absolve the Government from maintaining its international obligations. Its duty would be to require Parliament to overturn its action.

Only if the Government is unable to impose its will on Parliament would it then be able to invoke Article 61 of the Vienna Convention of the Law of Treaties, terminating a treaty on the grounds of "impossibility of performance", where "the impossibility results from the permanent disappearance or destruction of an object indispensable for the execution of the treaty" – in this case the withdrawal of Parliamentary consent.

However, there is a delicious "Catch-22" in that "impossibility of performance" may not be invoked if the impossibility is the result of the Government breaching an obligation under the treaty – which is the case, by virtue of it having introduced the Bill in the first place.

By that measure, if the Government succeeds in getting Parliament to authorise it to break the terms of a treaty, the very fact that it has procured that authorisation precludes it from terminating the treaty.

Whether he knows it or not, Johnson has got himself in a mess – unless, of course, it is his intention to sabotage to the talks and walk away with a no-deal. But then, with an outcome so unpredictable, he is not in control. He may find that he has merely sown the wind – and will shortly reap the whirlwind.

Also published on Turbulent Times.