Breach-of-international-law row unlikely to deflect Boris Johnson’s trade negotiating strategy

Opponents of Brexit are finding it hard to pick winnable fights.  

The latest stoush: the UK’s withdrawal treaty gives the EU powers over the Northern Ireland market; the EU has suggested (should an FTA not be agreed) that these might be used to hinder the flow of goods to the province from the rest of the UK; so the British government intends to  take powers in its internal market bill to stop this.

Cue outrage at the possible breach of the withdrawal treaty and thus international law.

Much of the criticism rests on the improbable assumption that the withdrawal agreement is sacrosanct.   The withdrawal agreement was a first step to a settled relationship, including a free trade agreement.  If Britain’s expectations are not met, then prior steps – including the treaty – are liable to be reopened.

For example, in the absence of special trading advantages, the British government will find it politically difficult to justify paying the outstanding £30 billion-odd still owing from the divorce settlement (in the withdrawal treaty).  And it would encourage more detailed scrutiny of the special relationship in Northern Ireland granted to Europe (in the treaty).

Broad-brush moaning that the UK will never be trusted again can be taken with a grain of salt. This stuff happens.  But there is, nonetheless, a serious question as to whether the UK is prejudicing its reputation by unwinding or reinterpreting the agreement in this way.

Probably not.  The move will likely be seen as a response to EU negotiating pressure and a signal that the British government has revised its expectations and is preparing for the possibility of life without a trade deal.  

So the message to the EU is to keep its eyes on the trade negotiations.  If it were to pull out now, it might suggest that the assumption on which the British negotiated the withdrawal treaty – that a mutually acceptable trade agreement could be negotiated – was never realistic.

The Irish border arrangements in the withdrawal treaty were always a bit of a gamble.  The key element was to create a privileged economic position for Northern Ireland in which it could be represented that it would enjoy the best of both the EU and the UK.  But if this can’t be achieved then arguing about who is responsible could be less important than dealing with the fallout.

The proposed law change reflects a  growing confidence on the part of PM Boris Johnson that he is winning the battle for British hearts and minds – in particular with his insistence that the post-withdrawal relationship must be one between sovereign equals.  If he is right, it means his critics are increasingly seen as promoting the interests of the EU. 

Some suggest that the government won’t be able to pass its legislation through the House of Lords.  But perhaps Boris is looking forward to a scrap with the second – and unelected – chamber.  Because until the EU comes up with some more attractive proposals, there just don’t seem to be that many good fights for his opponents to pick with him.

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