The Telegraph claimed in a banner headline this morning that the prime minister is to tell the EU that the Withdrawal Agreement (WA) he renegotiated and signed last year “never made sense”. A senior government source is quoted as saying some of the consequences “were not foreseen” at the time.
Simon Nixon, chief leader writer at The Times, tweeted:
The problems with the Brexit divorce deal were “unforeseen” says the prime minister who refused to allow MPs more than three days to scrutinise it. https://t.co/8LxGp3hW8m
— Simon Nixon (@Simon_Nixon) September 7, 2020
Later, we learned from Whitehall sources that the head of the government’s legal department, Sir Jonathan Jones, has resigned, reportedly over concerns that Downing Street is trying to undermine parts of the Northern Ireland protocol in the agreement.
The folly of trying to rush the withdrawal agreement bill through parliament firstly in October and finally in January after the general election, with MPs getting just three days of debate, is now abundantly clear. Johnson now admits his “fantastic” deal needs renegotiating.
As Have I Got News For You tweeted:
‘Brexit deal never made sense’ says man who negotiated it, signed it, prevented MPs from scrutinising it, campaigned for it and won a general election on the back of it:
Have I got news for you – Twitter 8 September 2020
Boris Johnson has already turned this country into a laughing stock. He is now intent on trashing our reputation as a trustworthy partner who keeps to both the spirit and letter of international treaties.
Opening the debate on 22 October he told MPs the agreement was “profoundly in the interests of our whole United Kingdom”. Now it turns out the agreement is contradictory and with “unforeseen” consequences.
Brexit supporters like Owen Paterson and Steve Baker lined up to welcome the agreement and the programme motion curtailing debate on the 110 page European Union (withdrawal agreement) bill. Iain Duncan Smith even suggested the House had “thrashed this out through the White Paper and in meaningful vote after meaningful vote”.
Johnson wrote to Jeremy Corbyn on 24 October castigating him for demanding a new timetable to give MPs more time for scrutiny:
As we know, the bill was pulled in October and instead, Johnson called an election, with each Tory candidate pledging to support his agreement. It received its final reading on 9 January, passed by 330 MPs, all Conservatives, who must be feeling pretty stupid now after being told that it actually makes no sense.
Former Justice Secretary David Gauke pointed out the unforeseen difficulties actually were foreseen, and by none other that Boris Johnson himself, when he and Theresa May both rejected the idea of an Irish Sea border in February 2018:
The problems with the Union were foreseen. That is why the May Government (including Foreign Secretary Johnson) rejected this deal in February 2018. But last October Boris Johnson accepted a border in the Irish Sea in order to Get Brexit Done. https://t.co/uMy4PDfvPW
— David Gauke (@DavidGauke) September 7, 2020
To demonstrate Johnson’s flimsy grasp of the details, at one point in the debate last October, he assured Iain Duncan Smith that a future trade agreement would see Northern Ireland treated “exactly the same as Kent”. It is not clear if this meant ignoring the NI protocol completely or building a border around Kent and applying the full extent of the EU customs code to the garden of England.
This lack of understanding is now coming back with a vengeance.
On Monday, the FT claimed the UK internal market bill to be published tomorrow will “clearly and consciously” undermine the Northern Ireland protocol that Boris Johnson signed last October – and would directly “set up UK law in opposition with obligations under the withdrawal agreement, and in full cognisance that this will breach international law.”
Peter Foster, the FT public policy editor tweeted:
The problem for the government is that the WA is an international treaty which, in article 4 (page 12), expressly forces UK administrative authorities to “disapply inconsistent or incompatible domestic provisions, through domestic primary legislation”. In other words, the WA has direct effect in UK law.
The UK government can pass as many laws as it likes but it will make no difference to British courts, who will apply the treaty provisions. The only way to prevent this would be to have a clause in the new internal market bill which clearly and specifically overrides the WA – but this would be an unambiguous repudiation of the agreement Johnson formally signed last year, which is now embedded in UK law.
Many commentators have suggested the government would not dare go that far but, again this morning, knight of the realm Sir Bernard Jenkin, chair of the Commons liaison committee and of the ERG steering group, has released a statement expressly calling for Britain to “repudiate” the withdrawal agreement if the EU insists on “an unreasonable interpretation” of the WA.
Presumably, the unreasonableness or otherwise of the interpretation would be determined by him.
Theresa May has herself this morning raised in the House, the question of how future international partners can have faith in any agreement the British government negotiates.
All of this comes as the eighth round of future relationship talks begins in London, with our lead negotiator calling for the EU to show “more realism”.
More articles from Anthony Robinson:
- Johnson’s approval rating among Tory party members nosedives
- A glimpse down the Brexit rabbit hole
- “Doomsday dossier” is Cummings’ last roll of the dice
