Casting around for a new post-Brexit role in the world, Boris Johnson’s government has been presenting the UK as a champion of liberal democracy. Ministers talk about convening a new “club of democracies”, adding nations such as the Republic of Korea and Australia to the existing G7 group. They have overlooked something. Raising the standard for democracy requires a commitment to the rule of law.
When the UK voted in 2016 to leave the EU, the reaction in other European capitals was one of profound shock. Britain, other political leaders said, was a nation of pragmatists. Others might be carried away by emotions, but the Brits were ruled by their heads. What happened in the Brexit vote, they asked, to the careful, cautious calculation that had defined the country as one of the world’s most stable democracies?
There was a similar intake of breath this week when a minister told the House of Commons that the government intended to give itself the right to break international law by unilaterally revising the exit treaty it signed last year with the EU. As if it somehow exonerated the government, the Northern Ireland secretary Brandon Lewis promised, absurdly, that this lawbreaking would be in a “specific and limited way”. More “specific and limited”, one wonders, than breaches that saw Russia annex Crimea or China discard treaty pledges to uphold, well, the rule of law in Hong Kong?
The occasion for this repudiation of the rules-based international system is the possibility — some say probability — that Britain and the EU27 will fail to reach an accord on their future trade and relationship before transitional arrangements expire at the end of December. Mr Johnson thinks that in those circumstances the special provisions for Northern Ireland enshrined in the 2019 withdrawal agreement might prove too onerous.
So the government intends to “overwrite” in domestic legislation the section of the deal that regulates trade between Great Britain and Northern Ireland. Ministers have been briefed to say the change would safeguard the Good Friday peace agreement between the province and the Irish Republic. Officials in the legal service privately counter it was driven by the prime minister’s ideological objections to a residual EU role in British affairs post-Brexit. The head of the service, Jonathan Jones, resigned in protest at the decision.
Britain claims a special attachment to liberal democracy. The author of Magna Carta and habeas corpus, it likes to style itself the mother of parliaments. Britain’s boast is that respect for the rule of law, essential for the operation of democracy, is woven into the very fabric of its unwritten constitution.
The reputation of the British courts for unshakeable independence and incorruptibility have made London a global centre for litigation — a place where all comers can benefit from the integrity of the judicial system without fear of political interference.
Legal services have been a valuable export — both in financial and soft power terms. It does the nation no harm when even autocrats choose to settle their differences in British courts.
A long tradition of support for the international rule of law has served Britain well abroad. The physical and economic security of the UK are rooted in global engagement. As a significant but medium-sized power with commercial and security interests in most corners of the globe, Britain is an obvious beneficiary of a law-based system to safeguard those interests. After the first world war it championed a new Permanent Court of Justice, a forerunner of today’s International Court of Justice.
Mr Johnson is unimpressed by such history. For the prime minister, what matters is getting his way. He showed this last year when he broke the law by proroguing parliament to defuse opposition to his Brexit strategy. It was left to the Supreme Court to haul him back into line. Senior Whitehall officials say the experience has not tempered the prime minister’s impatience with anything that obstructs his approach.
The potential complications for Northern Ireland of a failure to reach an overall trade deal were known before the withdrawal agreement was signed. Mr Johnson put his hands over his ears: it could be sorted out later. Never mind this “sorting out” risks destabilising the Irish peace agreement and irrevocably tarnishing Britain’s reputation.
Conservative colleagues, including Theresa May, the predecessor he ousted from Downing Street, have also pointed out that Mr Johnson is squandering the trust that Britain needs to secure good post-Brexit trade deals with other nations such as the US, Canada and Australia. Why should they trust Britain to keep its side of the bargain?
While important commercially, these are trivial issues compared to the message sent about Britain’s national character and identity, and how it will conduct itself outside of the EU. Respect for the rule of law is the vital line of separation between democracy and authoritarianism.
Britain has been a prolific signer of treaties — the Foreign Office counts more than 13,000 since the 1830s. Each one has carried a kite mark testifying to an unshakeable commitment of the rule of law. The signs Mr Johnson now proposes to hoist over the cliffs of Dover might as well read: “Welcome to Britain, a nation no longer to be trusted.”
This article has been amended to correct a reference to the G-7. Japan is already a member; South Korea is a potential addition.
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