According to the Irish Taoiseach Micheal Martin, this week Brexit has reached a new low. The Government published its Northern Ireland Protocol Bill (NIPB), which is considered – outside the fantasy world created by Brexiters – a terrible piece of legislation which triggered a further worsening of UK-EU relationships after Brexit. Indeed, the EU’s reaction was immediate – including resuming legal action against the UK over the unilateral extension of ‘grace periods’ on border checks last year. Domestically, the NIPB is the latest sign that the Brexit extremists have regained full control of a project that increasingly goes beyond the narrow goal of exiting the EU and is morphing into a fully-fledged attack on the rules-based international order as a whole.
The NIP Bill
While most Tory MPs seem to back the NIPB, outside the Brexiter bubble it is mostly considered a reckless act undermining an important piece in the institutional post-Brexit arrangements. For instance, in a letter to the PM Pro-Protocol Members of Legislative Assembly of Northern Ireland acerbically stated that the Protocol ‘[…] offers clear economic advantages to our region, and the opportunity for unique access to two major markets. The fact that you have removed this advantage from businesses in Great Britain, at a clear economic cost, does not justify doing the same to businesses in Northern Ireland.’ The letter also decries the grotesque political contortion that consist in complaining about the lack of cross-community support for the NIP, when Brexit was imposed on the region without even having majority support.
However, all the implorations will of course be in vain, because the latest escalation around the NIP issues have very little to do with any attempt to solve the real-world problems caused by Brexit. Rather, Northern Ireland and its people are increasingly becoming pawns in the Tories’ sinister political schemes.
Chris Grey’s excellent summary of the developments around NIPB in this weeks Brexit & Beyond blog identifies two ways in which to understand the legislation. The first one is to see it simply as an expression of ‘Tory factionalism’ and the return of the fanatics of the European Research Group to centre stage of internal Tory party politics. This is the result of Johnson’s weakness and the view amongst his potential successors – chief amongst which Liz Truss – that ERG support will be key in the next Tory leadership race.
The second one is to see the NIPB as the expression of how Brexiters see the post-Brexit relationship between the UK and the EU. Brexiters may genuinely believe that unilateral grandstanding that shows that the UK government will stop at nothing to get what it wants is the way to achieve the best possible outcome for the UK. This is akin to the so-called ‘madman theory’ of foreign policy which consists of making people believe you are crazy enough to do the unthinkable to make sure they give you what you demand. None is better placed to incorporate this foreign policy approach than PM Boris Johnson.
To these two immediate purposes of the government’s NIP approach, I would add the overarching and longer-term purpose. While the pursuit of one’s personal interest at any cost and without regard for its impact on the country and its citizens is a hallmark of Johnson-style ‘Egocracy’ and while a ‘madman’ world-view clearly underpins Brexiter thinking about how the world works, both imply more fundamentally that any constraint on British politicians exercising their powers are by definition illegitimate. This in turn is grounded in a deep-seated belief in British superiority, which in turn results in a strong opposition to and contempt for the current rules-based world order amongst British and English nationalists. As such, Britain – in the hands as it is of fanatic Brexiters – is increasingly becoming part of the problems the world is facing rather than a solution to them. Everything hints at the fact that as long as the Brexit fanatics play such a crucial role in the governing party, things will only get worse. This is illustrated by the continuing democratic backsliding Brexit has initiated and by the fact that Brexiters are now looking for new international treaties to renege.
The ‘Re-Tudorisation’ of British democracy
I am not going into the content of the NIPB, because there has been a lot of analysis and comments by lawyers that cover all the important aspects in detail (e.g. Prof. Elliot’s excellent blog or David Allen Green’s analysis). What I want to focus on here is the contribution of the NIPB – if passed into law – to what I perceive as a continuing democratic backsliding of the UK akin to what is happening in countries further to the East. In this process, the NIPB constitutes another step into the direction of concentration of power in the hands of the executive branch of government and an undermining of Parliament’s power to oversee executive action. Thus, the Hansard Society has noted the extensive use in the NIPB of Henry VIII clauses, ‘that enable ministers to amend or repeal provisions in an Act of Parliament using secondary legislation, which is subject to varying degrees of parliamentary scrutiny.’ In fact, clause 22(1) of the NIPB converts ‘every regulation-making power in the Bill’ into such a Henry VIII power, stating that ‘Regulations under this Act may make any provision that could be made by an Act of Parliament (including provision modifying this Act).’ The Hansard Society also notes that the terms that are used for giving ministers powers to regulate under the NIP are vague and set a low bar for ministers to exercise discretion. Thus the bill gives ministers the power to make ‘any provision the Minister considers appropriate in relation with’ the NIP, rather than requiring that the provision be considered necessary.
The thesis of democratic backsliding is further confirmed by an interesting difference between the EU Withdrawal Act (EUWA) and the NIBP: The Hansard Society notes that in the former, powers equivalent to the ones in the NIBP were still subject to some Parliamentary scrutiny safeguards, while the NIBP does not have any such safeguards. Indeed, the bill also implies that if the Protocol were to be negotiated with the EU, such a renegotiated version could be implemented through regulation without Parliamentary scrutiny.
The impression of another power grab by the government is reinforced by clause 18(1), which states that ‘A Minister of the Crown may engage in conduct in relation to any matter dealt with in the Northern Ireland Protocol (where that conduct is not otherwise authorised by this Act) if the Minister of the Crown considers it appropriate to do so in connection with one or more of the purposes of this Act.’ Hansard Society considers this clause another case of the extension of sub-legislative ministerial activity that the House of Lords has criticised in its Democracy Denied report.
As such, the increasing use of Henry VIII powers and other subtle (or not so subtle) ways of liberating the government from parliamentary oversight and accountability means we are witnessing little by little the ‘re-tudorisation’ of British law and politics, i.e. a shift towards a system where power is centralised and absolute (albeit this time in the hands of the PM not the Monarch).
Of course, I am exaggerating somewhat. The additional powers given to ministers under the NIPB in themselves may not constitute a revolution; but seen in the context of what Johnson’s government has done since 2019, they constitute a few additional stabs that may contribute to British democracy’s death by a thousand cuts.
Beyond Brexit and the NIP: Britain’s attack on the rules-based world order
The dissatisfaction of Brexit fanatics like David Frost and David Davis, who see Johnson’s hard Brexit as Brexit in name only (or as Davis put it this week ‘a Remainers Brexit’) rather than the hardest possible version of Brexit short of a no-deal scenario, has been evident for some time. Having successfully completed the takeover of the UK’s NIP policy (as Tony Connelly puts it), the Brexit fanatics in the Tory party seem to be setting their sights on the next target. Here, the saga around the Home Office’s Rwanda policy and the European Court of Human Rights’ (ECHR) ruling to block the first deportation flight of asylum seekers from the UK to Rwanda provides interesting insights.
Unsurprisingly to Brexiters – like journalist Douglas Murray – the fact that the ECHR could overrule a policy adopted by the UK government is a sign that the UK has ‘only half Brexit-ed.’ Given that the ECHR is completely independent from the EU and that the UK is still part of the European Convention of Human Rights (the Convention), that Tweet shows either an astonishing level of ignorance or of bad faith. Either way, it also shows that what Brexiters are struggling to accept is not so much the EU per se, but any instance that prevents the UK government from doing as it wishes. The commonality between the EU and the ECHR is of course that they both impose the judgement by international or supranational courts on members states (the European Court of Justice in the former case, the ECHR in the latter). However, let us not forget that Brexiters’ reactions to rulings by domestic judges are no different from the hostility they show towards international ones. The only difference is that in the former case the judges opinions are rejected because they are foreigners (as one Express reader – evidently parroting Farage’s narrative – put it: “I don't think we need a unelected Russian or Estonian or French lefty overruling UK law”),* while in the latter case they are rejected because they are ‘lefty lawyers’ and enemies of the people.
Given this level of animosity, Brexiters jumped at the opportunity provided by the row over the Rwanda policy to reignite the flame of jingoism and nationalism. Thus, Farage used his GB News platform to call for the UK quit the ECHR and Johnson suggested that the UK government might indeed consider such a move.
As various commentators have pointed out, an unexpected indirect result of such a move would be that it would violate the Good Friday Agreement (GFA), which contains a direct reference to the importance of the ECHR for the region. Since the UK Government pretends that the main purpose of the NIPB is to protect the GFA, quitting the ECHR would seem in direct contradiction with government policy. The duplicity around the ECHR illustrates once again that what the UK Government – driven by its fanatic Brexiter fringe – is not interested in solving any real-world issues, but rather in pursuing its own agenda no matter at what cost to the country, its citizens, let alone other people like asylum seekers.
That agenda, as it becomes increasingly clear, does not stop at Brexit or ‘ECHR-exit’ – it is a much more ambitious project of undermining the rules-based international order. Indeed, not only do Brexiters reject any subjection of British people and politicians to international rules and the law, they go as far as denying that international law exists at all. What the ultra-Brexiter fringe of the Tory party wants is a world order where the British government has not got to answer for any of its actions; where no instance – domestic or international – has the power to hold those in power in the UK to account.
This is illustrated by the invocation of the ‘doctrine of necessity’ – which according to the UN’s International Law Commission can be used by a state facing “grave and imminent peril” - to justify the legality of the NIBP. Invoking the ‘doctrine of necessity’ has parallels to invoking a ‘state of exception’ – albeit only in the narrow area covered by the NIP. Claiming that we are in an emergency is meant to justify any extra-legal action by the government.** This is precisely how German Nazi-lawyer and philosopher Carl Schmitt defined sovereignty: Sovereign is s/he who decides on the state of exception. Given the Brexiter obsession with sovereignty, it is no surprise that their preferred legal doctrines are increasingly similar to those promoted by some of the most sinister legal figures in history. That this may constitute a dangerous precedent was aptly shown by the Blair Institute’s Anton Spisak who tweeted: ‘Wait until Moscow or Beijing invokes "the doctrine of necessity" to override its international obligations.’
Kyiv not Doncaster
Amongst all the turmoil around the UK’s international obligations and the backlash against its government’s actions this week, Boris Johnson mostly focused on his main priority: saving his premiership.
The latter took another hit this week with Lord Geidt’s resignation as the Government’s ethics adviser. In his resignation letter, Lord Geidt stated that ‘the idea that a Prime Minister might to any degree be in the business of deliberately breaching his own Code is an affront.’ The immediate cause for the resignation seems to have been the Government’s intention to further extent Trump-era tariffs on the import of Chinese steel against the advice of the Trade Remedies Authority who did not find a legal basis for doing so.
Under pressure from both the One Tory and the hard right wing of his own Party, Johnson continues his double-faced game of talking tough and escalating the conflict with the EU whenever it seems political opportune, while at the same time trying to keep the options for more conciliatory path open. Thus, this week, he introduced in Parliament a radical unilateral legislation all but abolishing the NIP, while at the same time calling for ‘de-escalation.’ Some may see this as a shrewd negotiation tactic (carry a big stick while dangling a carrot), but the fact is that the reckless unilateral action while officially negotiations with the EU are still ongoing will undermine any remaining trust rather than put pressure on the EU to concede more. As such, his tactics remind one more of the actions of a schizophrenic than those of a seasoned negotiator. These are the actions of a man who wants his cake and eat it and who is unable to take responsibility for anything he does.
He also cancelled his scheduled appearance at a Northern Research Group (NRG) conference in Doncaster and decided to fly to Kyiv instead to pay a visit to Ukrainian president Volodymyr Zelenskyy. Instead of facing questions from Red Wall Tory MPs about his ‘levelling up’ policy (which increasingly turns into a levelling down policy by starving the South East of funding rather than investing massively in the North), he enjoyed photo ops as wartime leader and making purely symbolic announcements. Pilgrimages to Kyiv when things are not going well at home seems to become the go-to tactic for the embattled PM. Yet, the cancellation at short notice of the NRG conference appearance was perceived by Northern business leaders as a snub, which may not help the Tories chances of winning the upcoming Wakefield by-election next week.
There is still hope for the PM and the Tories of course to win the upcoming by-elections and turn around their fortunes. Especially, because questions about Kier Starmer’s leadership of the Labour party continue to be raised given that the Labour lead in the polls remains relatively limited. The Tories, in turn, seem increasingly innovative and resourceful when it comes to tricking people into voting for them. Thus, there was a tweet this week about the case of the Tiverton and Honiton Tory candidate’s election booklet that only mentions the Conservative Party in the small print.
This is a telling tactic, illustrating that the Tory Party has become a political grouping that does not stand for anything other than an insatiable appetite to extend its power. Controlled by extremists, Johnson’s party seems willing to take on the world. In the process, hard Brexit may turn into an extremists’ Brexit.
*Incidentally, in reality EHRC judges are of course elected: “The judges are elected by the Parliamentary Assembly of the Council of Europe from lists of three candidates proposed by each State.”
**Although that claim seems to be contradicted by the fact that the UK Government still has not triggered article 16 of the NIP, which was precisely meant for such cases – again see Chris Grey’s discussion.