When the Queen’s minister gives his word, on her behalf, it should be axiomatic that he will keep it, even if the consequences are unpalatable. By doing so he pledges the faith, honour and credit of this nation and it diminishes the standing and reputation of Britain in the world if it should be seen to be otherwise.
No British minister should solemnly undertake to observe treaty obligations with his fingers crossed behind his back. The withdrawal agreement and its attendant Northern Ireland protocol represent treaty obligations of this country to which the government, in which I had the honour to serve as attorney-general, gave its solemn and binding word. It is, therefore, obliged to accept all the ordinary and foreseeable consequences of the implementation of that agreement.
Those manifest consequences included the inevitable application of EU tariffs and customs procedures to certain goods entering Northern Ireland from Great Britain and of the EU’s state aid regime to the province. There can be no doubt that these were the known, unpalatable but inescapable, implications of the agreement. They included a duty to interpret and execute both the agreement and the protocol in good faith.
Therefore, if the powers that the House of Commons is asked today to confer on the government by assenting to the UK Internal Market Bill are to be used to nullify those perfectly plain and foreseeable consequences, they would amount to nothing more or less than the unilateral abrogation of the treaty obligations to which we pledged our word less than 12 months ago, and which this parliament ratified in February.
It is unconscionable that this country, justly famous for its regard for the rule of law around the world, should act in such a way.
But the duty of good faith is a two-way street. The EU faces a precisely equal obligation and if, as reported, it has sought to use the Northern Ireland protocol as a lever in the trade negotiations, for example by suggesting that it might decline to extend to our farmers the same recognition for the purpose of imports of animal products that it has in place with Africa and Central Asia, thus marooning Northern Ireland from its main market in Great Britain, then its behaviour is open to very severe criticism. I well recall the careful protestations made by Michel Barnier about “dedramatising” the border he advocated in the Irish Sea, and the solemn undertaking in the protocol to facilitate trade between Northern Ireland and the UK and to avoid controls at the ports.
The UK might understandably feel that such an approach from the EU should not simply be accepted without challenge. There are clear and lawful responses available to Her Majesty’s government, but both the spirit and the letter of the law require that these should be undertaken solely to accelerate progress in negotiations not as a means to force their abandonment.
These include triggering the agreed independent arbitration procedure set out in the withdrawal agreement and, in extremis, these might legitimately extend to taking temporary and proportionate measures, where they are urgently necessary to protect the fundamental interests of the UK (in my view if, and only if, specifically approved at the time by the House of Commons,) for the period until that arbitration has concluded.
What ministers should not do, however provoked or frustrated they may feel, is to take or use powers permanently and unilaterally to rewrite portions of an agreement into which this country freely entered just a few months ago.
Therefore, if the government does not urgently and effectively dispel the impression that it intends to do so, I shall have no choice but to withhold my support for this bill. I am a strong supporter of this government and of Brexit and I am deeply saddened to have to say this. We, the British government and parliament, have given our word. Our honour, our credibility, our self-respect and our future influence in the world all rest upon us keeping that word. Nothing less is worthy of Britain.
This originally article appeared in The Times on Sunday 13 September 2020.
