The Conversation

Breaking the law over Brexit: how the UK is playing dirty in EU talks

The UK government seems to be doubling down on threats to leave the European Union without a deal unless the EU gives in on issues of state aid and fisheries. These two concerns are as important in Brussels as they seem to be in London.

In the latest attempt to ramp up the drama as the deadline to reach an agreement nears, the UK has said it plans to revisit the withdrawal agreement it has already signed with the EU on the terms of departure. This will include changing the plan agreed with the EU in December 2019 on how trade will move between Northern Ireland and the rest of the UK. It also sets out how much money the UK owes the EU in unpaid commitments. It’s as if the UK government has only now realised that the withdrawal agreement places obligations on the UK to monitor what passes into Northern Ireland from Britain – and could therefore be a back door entry into the EU.

It is incomprehensible how this manoeuvre by London could preserve a frictionless border on the island of Ireland, which is what the withdrawal agreement was intended to do. A no-deal outcome also destroys what was previously agreed with Brussels. So what exactly is the UK government playing at? It is unsurprising that the European Commission president, Ursula von der Leyen, has asked for an explanation from London.

Given that Michael Gove, the chancellor of the Duchy of Lancaster, insisted that “we hold all the cards” and former international trade secretary Liam Fox promised “the easiest trade deal in human history”, it’s concerning that negotiations with the EU have yielded no positive results.

The truth is that all these pre-Brexit promises have been palpable nonsense. Boris Johnson wrote three days after the referendum that “there will continue to be free trade and access to the single market”. As prime minister, he assured the Democratic Unionist Party that there would be no barriers, no checks and no paperwork for goods passing from Britain to Northern Ireland. Weeks later he signed a withdrawal agreement with the EU that requires implementation of precisely such barriers.

Johnson’s shabby treatment of the DUP obviously troubles him because he is now seeking amendments to the withdrawal agreement. He must know that this is an international treaty that one side cannot unilaterally “tidy up”, let alone amend. Northern Ireland secretary Brandon Lewis admitted in parliament that it would be a breach of international law and seemed unfazed by the prospect. The former prime minister Theresa May, a master of understatement, questioned how the rest of the world could trust the UK if it rewrote the internationally agreed withdrawal agreement. This would be funny if it were not tragic.

Given that the withdrawal agreement cannot be unilaterally changed, the government must believe that it is simply using a strong-arm negotiating tactic against the EU. If so, it will fail. The union will not be browbeaten into giving the UK what it demands.

The foreign secretary, Dominic Raab, who only recently discovered that Dover was an important merchandise port, has insisted that, without an agreement, the UK would not settle the liabilities included in the withdrawal agreement. In fact, it is far from clear that Britain could avoid paying £39 billion to the European Union in the event of no deal. The EU would certainly take the UK to the International Court of Justice to secure payment of the “divorce bill”.

Jonathan Jones, the permanent secretary to the Government Legal Department, resigned over the government’s cavalier disregard for international treaty commitments in this debacle. He is the sixth senior civil servant to quit their post in 2020 in protest over the government’s approach to Brexit and its treatment of civil servants doing a difficult job.

The PM until recently routinely referred to the EU as “friends and partners” – a clear example of his famed sense of humour, given that he has made a career out of abusing and misrepresenting the EU.

Where is it all heading?

This litany of failure begs several questions. Among the most important are whether it is a sensible negotiation strategy to threaten, or even contemplate, a no-deal Brexit when this would be a disaster for the UK – and particularly for Northern Ireland.

But the government also needs to explain how its ambitions for “Global Britain” can be squared with its apparent disregard for international law. And if it does want a deal, why should it expect the European Union to abandon its 28-year commitment to a level playing field and the integrity of the Single European Market in respect of labour laws, environmental protection, and product standards just to meet the demands of a former member that has damaged the Union by leaving?

An Australia-type deal is the government’s euphemism for no deal, otherwise known as moving to WTO terms. Tariffs and customs barriers will be mandatory under WTO law. HGV queues at ports and food and medicine shortages will be the clearest visible signs of no deal once the “transition period” ends.

And of course, there is the now uncertain future of the Good Friday Agreement, which has preserved a fragile peace in Northern Ireland since 1998. Brexit enthusiasts, including the government, will need to explain to the people of Northern Ireland why the peace deal has to be sacrificed on the altar of Brexit.

These are hard times indeed. The wheels are coming off the Brexit jalopy. The underlying cause of all this is a predominantly an English refusal to come to terms with the United Kingdom being a medium-sized normal country in a complex and multipolar world, with no entitlement to rule or shape others’ destinies. The UK should be playing a key role in multilateral institutions confronting existential challenges for humanity, but instead it is pitching towards break up, disharmony, bitterness and isolation.

Simon Sweeney does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.