The government has behaved foolishly over its dealings with the EU

Editorial: The UK negotiating position has actually been weakened – not strengthened

The post-Brexit negotiations have not got any easier (Brian Adcock/The Independent)

You may think the law is an ass, as Charles Dickens’s Mr Bumble declared it to be in Oliver Twist, but in the real world you are an ass to knowingly break it. You are all the more of an ass to break a law that you yourself had willingly helped create less than a year earlier.

The decision by Boris Johnson to introduce legislation that breaks the terms of the divorce deal reached with the European Union has been met with a mixture of fury and concern. Among the more measured responses have been the comments by Lord Butler, former head of the civil service, and General Sir Richard Barrons, former chief of Joint Forces Command.

Lord Butler’s view is that: “I think it is very difficult to justify breaking a recently agreed international agreement, the Northern Ireland Protocol – I think their argument is weak. You can say if they thought this was a contingency, they should have thought of it before they agreed the protocol.”

Sir Richard said that what was being done over Brexit was particularly stupid: “It will undermine us with our enemies by giving them the opportunity to accuse us of hypocrisy when we call them out for breaking the rules-based international order. It will also undermine us with our allies who will doubt whether they can rely on us to keep to an agreement, keep to our word.”

Some of the government’s supporters might discount the assessment of former politicians, though to have managed to draw stern rebukes from four previous prime ministers – Sir John Major, Tony Blair, Gordon Brown and Theresa May – is quite an achievement. But people such as Lord Butler and Sir Richard are politically independent servants of the country. They care about the future of the United Kingdom just as passionately as Boris Johnson, arguably more so.

The weakness of the government’s case was in effect acknowledged by one of its ministers are the core of the issue, Robin Buckland, justice secretary. Speaking on The Andrew Marr Show yesterday, he hinted that he himself might resign  if the UK were indeed to pass legislation that flouted international law. He made it clear that such a situation would only arise were the UK unable to secure a trade deal with Europe. When pressed, he said: “If I see the rule of law being broken in a way I find unacceptable, then of course I will go. We are not at that stage.”

No, indeed. The defence from the government in essence is that this is a contingency plan designed to put pressure on Europe to do that trade deal. It can argue that the EU negotiating team has itself run against the spirit of the leaving agreement in that it has not been negotiating in good faith in the current trade talks. 

However the government’s action has actually weakened its negotiating position, not strengthened it. It has made it all the harder for European political leaders to make what are in the broader scheme of things quite minor concessions on fishing and state aid to industry. 

As we have previously argued here, a trade deal with Europe is eminently achievable. It would not be as good for the UK as the previous arrangement, of full membership but without other obligations such as joining the euro. But it would be vastly preferable to no deal at all. 

This last point is that of the government now. But with this ill-considered action it has made that goal much harder to achieve. Even on its own terms the government has behaved foolishly. It has been an ass.