Why Boris Johnson’s Britain Is Turning ‘Rogue State’ Over Brexit

12 min read
Why Boris Johnson’s Britain Is Turning ‘Rogue State’ Over Brexit

1. What exactly is the U.K government doing?

By its own admission, it’s planning to break international law. The U.K. is seeking power to undo sections of the Northern Ireland Protocol — part of the legally binding Withdrawal Agreement it signed with the EU in January. Crucially, the bill says it will “have effect notwithstanding inconsistency or incompatibility with international or other domestic law.” Suella Braverman, the government’s attorney general, argued that parliamentary sovereignty means it can pass legislation in breach of the country’s treaty obligations. The chairman of the law faculty at Cambridge University — where Braverman studied the subject — described her arguments as “utterly risible.”

2. What does this have to do with Brexit?

Johnson is rowing back from the policies on Northern Ireland he signed up to as part of the Withdrawal Agreement. That treaty took Britain out of the EU’s single market and customs union, meaning customs checks will be re-imposed at the U.K.’s border at the end of the Brexit transition period on Jan. 1. The protocol is designed to prevent a hard border on the island of Ireland — at the cost of putting the customs border in the Irish Sea.

3. How does Johnson’s proposed bill change things?

The Internal Market Bill will give U.K. ministers powers to:

• Waive customs paperwork on trade crossing between Northern Ireland and Britain

• Unilaterally define which goods entering Northern Ireland would be liable for tariffs in the event no trade deal is signed with the EU by year-end

• Strike down EU state aid rules contained in the Northern Ireland protocol.

4. How has the EU responded?

These three issues are highly sensitive for the EU and, prior to Johnson’s intervention, the details were still being pored over in joint discussions. The 27-nation political bloc is particularly concerned that goods could enter its single market unchecked via the 310-mile (500-kilometer) land border with Northern Ireland. It’s also worried that U.K. subsidies will put EU firms at a competitive disadvantage. It issued an ultimatum: the U.K. has until the end of September to amend the legislation or it will face legal action. Crucially, the EU hasn’t broken off trade talks.

5. What would legal action mean?

The European Commission can bring the matter to the Court of Justice of the EU, or ECJ, which can then impose financial sanctions. But that process could drag on well beyond the end of the transition period. The U.K. has agreed that for treaty obligations breached before then, it is still subject to ECJ rulings for another four years. But the British could choose to ignore them, especially if they include financial penalties, in what would constitute another treaty breach. The Withdrawal Agreement provides for a five-member arbitration panel to rule on matters of non-compliance from next year. Again, the panel may impose financial penalties. If the U.K. still refuses to pay, the EU can suspend the Withdrawal Agreement at will, except the parts on citizens’ rights.

6. What more could the EU do?

The biggest penalty would be to refuse to enter into any trade or other agreement with the U.K., depriving Britain of access to its biggest and closest economic partner. Michel Barnier, the EU’s chief Brexit negotiator, has already hinted the bloc could threaten imports of U.K. food and animal products by denying it so-called third-country listing. Without that, U.K. producers wouldn’t be able to send goods into the bloc — or Northern Ireland, which has to follow EU customs and phytosanitary rules.

7. Why is Johnson taking such a risk?

Johnson has repeatedly said that trade between Northern Ireland and Great Britain must be unfettered after Brexit, and he sees this move as necessary to secure that goal. If the U.K. and EU don’t come to an agreement by year-end, all goods entering Northern Ireland from Great Britain may have to pay tariffs, a situation the U.K. government says is unacceptable. But the prime minister also wants to break away from the EU’s state aid rules — a position that has become the biggest obstacle to reaching a wider accord with the bloc over their future relationship. Potentially, the EU could block a subsidy to a company in England, Wales or Scotland on the grounds it might help or hurt a business in Northern Ireland, which will still have to follow the bloc’s state aid rules from January. Johnson’s move could also be a negotiating tactic: By threatening the EU with a damaging rupture, he may be trying to encourage the bloc to offer a trade agreement with terms more favorable to the U.K.

8. Could Parliament stop him?

Conservative MPs including former Chancellor of the Exchequer Sajid Javid have said they won’t support the the bill, but it’s unclear there are enough of them to overcome Johnson’s 80-seat majority in the House of Commons. The prime minister could face a bigger fight in the House of Lords, the upper chamber which cannot veto legislation but can delay it for a year.

9. Could he face a legal challenge from within the U.K.?

It’s unlikely, at least in the immediate future. One of the key lawyers who brought a successful challenge against Johnson’s plan to suspend — or prorogue — Parliament last year, says it would be harder this time. Jolyon Maugham said Britain’s unwritten constitution rests upon the concept of parliamentary sovereignty. If lawmakers approve the legislation, the judiciary’s ability to get involved is “very limited indeed, if not non-existent,” Maugham said. Another route might be to question whether any breach of international law infringes the Ministerial Code, the standards of conduct that all government ministers must adhere to. That rulebook is, however, enforced by the prime minister.

10. What could the long-term effects be?

• Trust between the U.K. and its biggest and nearest trading partner risk being dented at the very start of their new relationship.

• If Johnson’s actions threaten peace in Northern Ireland, there is “absolutely no chance” of a trade agreement with the U.S., House Speaker Nancy Pelosi has warned.

• The bill could give fresh impetus to nationalists in Scotland, who view it as a power grab. After next year’s Scottish parliamentary elections, the Scottish National Party is likely to renew its push for another independence referendum. Scotland voted overwhelming to remain a member of the EU.

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