Whither rule of law? A government gone rogue

Robert Wilcox

The government has announced to the world that it intends to break international law. It was an unusually frank admission from the government. Rather than heads shaking in denial, or the usual tripartite strategy of deflection, evasion and obfuscation, ministers have been very open about what they are doing. Indeed, the Northern Ireland Secretary, Brandon Lewis, believes that we should feel reassured by the fact that the government’s Internal Market Bill only breaches international law “in a very specific and limited way”. At the risk of stating the blatantly obvious, however, breaking the law in a “very specific and limited way” is still breaking the law.

Perhaps we should console ourselves by following the example of Theresa Villiers MP and acknowledge that there are “routine occasions where other countries … are in violation of obligations under international law”, or Sir William Cash MP, who similarly recites breaches of international law at every available opportunity. But there are few surer signs that one is on the back foot in an argument when one is obliged to point out the many and various wrongdoings of others.

Contrary to the government’s implicit assertion that this is somehow a trivial matter, there are extremely serious consequences to passing this legislation. Of course, a whole host of states, including the UK, have breached international law before – and the occasions when they have done so should by no means be dismissed lightly. But it is the context which is particularly damning here. The government is proposing to breach obligations set out in an agreement which it negotiated and signed itself mere months ago. This is the very deal which the Prime Minister declared was “oven-ready” to the British public. One of two conclusions can be drawn: the Prime Minister did not understand what he was signing when he put pen to paper, or that he fully intended to breach the Withdrawal Agreement all along.  

The principle of pacta sunt servanda, which literally translated means “agreements must be kept”, is the cornerstone of international law. It is not difficult to understand why. International law does not descend from on high. It is a body of law made by states, for states. It follows that every breach of international law is not just detrimental to a specific undertaking given to a specific state; it imperils the continued existence of the international legal order. This is because the relationship between states depends on there being a certain level of trust between them. If a state cannot be trusted to abide by a promise it has made – which necessarily comes of its own volition; international law cannot be unilaterally imposed on states – how can other states be expected to abide by their own commitments?

This is precisely why it is so frustrating to hear MPs making such flippant comments as international law is simply a “set of political constructs” (à la Villiers). This shows a complete lack of appreciation for the achievements of international law in protecting human beings, the environment and everything in between, on a day-to-day basis. It is by no means perfect. But the same can be said of domestic law. What matters is that states have identified certain commitments to each other as having legal status. Without a rules-based system in place, we revert back to a Hobbesian nightmare vis-à-vis states. If international law is reduced to no more than a “political construct”, if government promises are not worth the paper they are written on, what hope is there for meaningful international co-operation?

The circumstances surrounding the introduction of this Bill are odd to say the least. If the government was that concerned about aspects of the Northern Ireland Protocol – the part of the Withdrawal Agreement in question – and the implications for the integrity of the UK, surely it would never have agreed to it in the first place? In any event, the Withdrawal Agreement established a Joint Committee precisely for the purpose of addressing present issues concerning the flow of goods between Great Britain and Northern Ireland. And if the government had any doubts about whether the EU was acting in good faith, then it could invoke the dispute resolution mechanism provided for in the Withdrawal Agreement. It is this very same mechanism which the EU now proposes invoking against the UK, prompting outrage from the government; the very same mechanism which the UK agreed to when the government signed the Withdrawal Agreement. Given the options available, it begs the question why the government is so intent on this provocative act? Whether it is merely political posturing or not, ministers should hold their heads in shame – there are some lines that you simply do not cross.

The Bill demonstrates the height of the government’s irresponsibility. The government is willing to endanger the hard-won, though still fragile, peace in Northern Ireland by undermining the Good Friday Agreement. It is content to play into the hands of despots and rogue states across the globe, who are relishing the prospect of citing the UK when they again question the legitimacy of international law. It is indifferent to the damage being done to the international legal order at a time when increased co-operation between states is necessary to confront humanity’s shared problems.

Yet, none of this should really come as any great surprise. The rule of law is anathema to this government. It necessitates compliance with the law at all times, not just when it is convenient. It requires ministers to account for themselves, to give reasons for their decisions based on objective evidence and to not exercise their power arbitrarily. It extends no favours to the pursuit of ideological goals. Exceptions are made for no one, not prime ministers nor even chief political advisers.

It is for those reasons that the rule of law is essential to a free and democratic society, and why it is perceived as an obstacle by governments that have come to power on the back of the rising tide of populism. They believe that they have the democratic mandate to do whatever they want, that their electoral success is somehow unique. In reality, what they have achieved is no more than a coup. They have essentially hijacked a public mood, which they themselves created and manipulated for their own ends through years of peddling misinformation and scapegoating. When they finally find themselves in power, it is only the rule of law which can prevent the steady slide towards totalitarianism.

Parliament, it seems, is either unwilling or unable to restrain the government. The overwhelming majority secured by the Conservative Party makes it highly unlikely that the government’s legislative agenda will be scuppered by MPs. Breaking international law, however, did seem like too bitter a pill for most MPs to swallow. Yet, even before the government made its concession, whereby Parliamentary approval would be required before ministers could exercise their powers under the Bill, the majority of MPs voted in the government’s favour. Apparently not even a threat to the rule of law is enough to wake certain MPs from their acquiescence and sycophancy. One has to wonder what is next? If this government has taught us anything, it is that nothing is off the cards. 

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