The joint statement issued by Sir John Major and Tony Blair on 12 September 2020 and published in the Sunday Times on 13 September 2020.
Last October, Britain concluded an international Treaty with the European Union for the terms of Britain’s exit from the EU. This subsequently passed into British Law. It contained a specific agreement for resolution of the terms of trade for Northern Ireland.
It was described by the Government as a “negotiating triumph” which would lead to an “oven ready” trade deal between the UK and Europe.
It was, of course, no such thing. Even so, a General Election – with this agreement very much centre stage – was fought and won by the Conservative Party.
Last week, with the promise of a comprehensive trade deal with the EU long gone, and the Brexit negotiations in disarray, the Government published a Bill which it openly admits is a violation of that Treaty. This Bill contravenes the Treaty the UK ratified, and overrides the law that Parliament passed on the basis that the agreement over Northern Ireland – as reached by the Prime Minister himself – did, in any event, contain “unforeseen” ambiguities.
We have become so inured to the unending Brexit saga of misinformation and misdirection that the hollow claims, empty promises and emptier threats have lost their power to shock.
But what is being proposed now is shocking. How can it be compatible with the Codes of Conduct which bind Ministers, Law Officers and Civil Servants to deliberately break Treaty obligations? As we negotiate new trade Treaties, how do we salvage credibility as “Global Britain” if we so blatantly disregard our commitments the moment we sign them?
Yet the Government seeks to do so by the extraordinary pretence that breaking international law is necessary to “save the Good Friday Agreement”, which has given us peace in Northern Ireland for over two decades, and utterly changed the relationship between the UK and its nearest neighbour, the Republic of Ireland.
We disagree. The Government’s action does not protect the Good Friday Agreement, it imperils it.
When the two of us travelled together to Northern Ireland during the 2016 referendum campaign, we warned that the open border between the North and South of Ireland – such a vital element of the Peace Process and the Good Friday Agreement – was inconsistent with the UK leaving the European Single Market. We warned that we would be faced with a choice of either abandoning that open border, or keeping Northern Ireland at least inside the Single Market. We warned that, if Britain left the Single Market and Northern Ireland stayed, a degree of separation would be created between Northern Ireland and the rest of the UK.
At the time we were excoriated as out of touch and out of time “has beens” who didn’t understand the complexities of the Irish problem. We – and the British and Irish people – were assured it would be easy to negotiate a way around all this.
Four years on – after Theresa May ended up accepting, as a “back-stop”, that Northern Ireland should stay closely tied into the rules of the Single Market and the whole of the UK in the Customs Union – Boris Johnson resigned as Foreign Secretary on the basis that her agreement was a “betrayal”. He subsequently succeeded Mrs May as Prime Minister, and promptly replaced the “back-stop” with a “front-stop” that keeps Northern Ireland tied to EU single market rules, which was exactly where we were always going to be.
When the Government renegotiated the Withdrawal Treaty, and urged MPs to pass it into domestic law, it did so in full knowledge of the consequences of doing so. These were that Northern Ireland would have to comply with some EU rules to keep the border open, including those on state aid, and that, as a result, new barriers to trade would arise between Northern Ireland and the rest of the UK.
That was the unavoidable price of Britain leaving the single market and customs union, while wishing to avoid the imposition of a new hard border on the island of Ireland.
To claim now that the Government has only just discovered this consequence is a nonsense, for it was the Prime Minister himself who negotiated it.
The overt repudiation of the Treaty – by seeking to unilaterally override the provisions agreeing to the application of certain EU rules to Northern Ireland strikes at the very heart of the Withdrawal Agreement.
It puts the Good Friday Agreement at risk, because it negates the predictability, political stability and legal clarity which is integral to the delicate balance between the North and South of Ireland that is at the core of the Peace Process.
If the Government has concerns about specific parts of the Withdrawal Treaty, there are ready mechanisms within it to resolve them amicably, in the first instance by negotiation between the UK and the EU and, if that fails, through independent arbitration.
It has chosen to ignore these options. Instead, it has thrown the Withdrawal Treaty into uncertainty and given the EU genuine reason to question whether Britain can be relied upon in any future agreements they make for trade with the EU.
This has wide-ranging ramifications. It will not only make negotiation with the EU more difficult, but also any trade negotiations with other nations – including the United States. Once trust is undermined, distrust becomes prevalent.
If Parliament passes this Bill, the UK is bound to end up before the ECJ which, under the Northern Ireland protocol, retains jurisdiction over EU rules. What if the UK loses? Do we defy the ruling? What price our international word then? Has any of this been thought through?
It is unlikely that the EU will respond in a way that prejudices the Good Friday Agreement, but it may well retaliate in areas of enormous significance to the UK, such as limiting the access of UK financial services firms to the Single Market.
We both opposed Brexit. We both accept it is now happening. But this way of negotiating, with reason cast aside in pursuit of ideology, and cavalier bombast posing as serious diplomacy, is irresponsible, wrong in principle and dangerous in practice.
It raises questions that go far beyond the impact on Ireland, the Peace Process, and negotiations for a trade deal – crucial though they are. It questions the very integrity of our nation.
If the Government succeeds in its plans, what constitutional audacity will be beyond them? If Parliament deliberately passes legislation known to undermine international law, what will that do to the reputation of Parliament and our country?
For a country which has for hundreds of years furthered the cause of law around the world, respecting treaty obligations is just as important as domestic law. The constitutional principle of the Rule of Law requires us to treat such obligations in international law in the same way as in national law. Sophistry cannot justify this behaviour, nor can sly interpretation of one particular clause over another.
This Government has already played fast and loose with Parliamentary Sovereignty and the Rule of Law. It had its knuckles rapped last year by the Supreme Court, but this did not deter them.
As the world looks on aghast at the UK – whose word was once accepted as inviolable, this Government’s action is shaming itself and embarrassing our nation.
This latest ruse has spectacularly misfired, and must stop now – before any further damage is done. And, if the Government itself will not respect the Rule of Law, then the High Court of Parliament should compel it to do so.
The Rt Hon Sir John Major KG CH
The Rt Hon Tony Blair
12 September, 2020