The biggest thing affecting the future of Brexit is: who will become leader of the Conservative Party and Prime Minister?
Lawyers for Britain is not affiliated to any political party, and we have members and supporters who belong to different parties or to none. Nonetheless we must recognise that the choice by the Conservative Party membership between Rishi Sunak and Liz Truss may critically affect what we at Lawyers for Britain have been campaigning for and working for ever since 2016: a United Kingdom governed by our own laws under our own democratic control.
It might seem logical to support Rishi Sunak, a Leave supporter in 2016, against Liz Truss, who then backed Remain. But as a member of the Conservative Party, I shall be casting my own vote for Liz Truss. My firm and strong recommendation to all Conservative Party members who care about Brexit is to do the same, for reasons which I shall explain.
Brexit is not yet done
Over 6 years have passed since the referendum, but despite that the United Kingdom has not yet achieved the restoration to ourselves of control over our laws, money and borders. After the collapse of the disastrous May administration in 2019, Boris Johnson made a strong start by achieving the removal of most EU jurisdiction from the territory of Great Britain and the restoration of our independent external trade policy. This however was at the price of agreeing to the Northern Ireland Protocol and to the rest of the EU Withdrawal Agreement, which was unchanged from that negotiated by Theresa May.
I understand the argument that under the political constraints at the time – the Benn Act, the Fixed Term Parliaments Act which prevented the calling of a general election, and the Miller 2 Supreme Court case where the judges invented new law to stop the government from proroguing Parliament – the only pathway out of EU membership was by accepting the onerous terms of the Withdrawal Agreement and the Northern Ireland Protocol. But that meant that correcting these deficiencies was unfinished business which should have been addressed vigorously once we exited the EU.
There are other important pieces of unfinished business, but the Northern Ireland Protocol is undoubtedly the most serious and damaging of them. Coverage of it has focussed on the serious disruption to the free flow of trade caused by the customs formalities and other checks it requires when goods are moved to NI from other parts of our country. But these problems – serious as they are – are just a symptom of an underlying cause. The Protocol imposes internally within Northern Ireland a very wide range of EU laws. These laws are subject to interpretation by the EU’s own court, amendment by the EU’s own legislature, and legal oversight and enforcement by the EU Commission.
Addressing the Northern Ireland Protocol
It is not surprising that Unionists in Northern Ireland have reacted with dismay and fury to the change in their constitutional status imposed on them by the Protocol without their consent. In the recent Allister case, Northern Ireland Lady Chief Justice Keegan said that the Protocol had “subjugated” two fundamental provisions of the Articles of Union of 1800: the ban on restrictions on the movement of goods across the Irish Sea, and the requirement that citizens in Northern Ireland should be on the “same footing” as citizens in Great Britain “in all treaties with foreign powers”.
Unfortunately Boris Johnson’s government neglected until very recently to tackle the fundamental problems posed by the Protocol. This neglect led to the progressive deterioration of the political situation in the Northern Ireland and to the collapse of the power-sharing Executive shortly before the elections in May 2022. It risks seriously undermining and damaging the peace process under the Belfast (Good Friday) Agreement.
During 2021, David Frost unilaterally extended certain “grace periods” on checks on goods crossing the Irish Sea. This mitigated the situation compared with the very onerous regime of checks which would have come into force without the grace periods (sometimes called “easements” to the dismay of lawyers who know what the word ‘easement’ means). He also publicly floated the idea of replacing the EU legal regime inside Northern Ireland with a dual regulatory regime under which businesses could choose whether to follow EU or UK law, and asserted that the conditions had arrived which gave the UK the right to take “safeguard measures” under Article 16 of the Protocol.
Unfortunately he never received support in the government to take the necessary steps to deal with the Protocol, and resigned from the government in December 2021 with the Protocol and its problems still fully in place.
The Protocol and Liz Truss
Following David Frost’s resignation, Liz Truss was handed responsibility for the Northern Ireland Protocol in January 2022. Despite fears that it would be difficult for her to take on board this complex and delicate subject alongside her many other duties as Foreign Secretary – such as dealing with the war in Ukraine – it is clear that she grasped the nature and scale of the problem, and by June had introduced her Northern Ireland Protocol Bill. That Bill has now passed all its stages in the Commons and has had its first reading in the Lords.
The Bill is strong and should be effective to solve the major problems of the Northern Ireland Protocol, if it passed into law and if the government then in office passes the necessary statutory instruments to lay down the detail. For example, clause 13(1) removes the powers of the ECJ over Northern Ireland and clause 13(2) removes the power of the EU to send in inspectors and overseers.
Rishi Sunak and the Protocol Bill
But – and here is the rub – the Bill was strongly opposed by Rishi Sunak and the Treasury, who nearly succeeded in gutting it of all its effective provisions, before it came to be published. It is claimed that he feared that the Bill would lead to a trade war with the EU with damaging economic consequences. The reality is that the EU would face very serious legal problems under the WTO Agreements and under the Trade and Cooperation Agreement if they were to try to impose tariffs or restrict trade in ‘retaliation’ for a Bill which continues to protect the EU single market against non-conforming goods being sent across the Irish land border. And apart from legal problems, the EU’s industries gain so much benefit from the free trade arrangements between the EU and the UK that any such measures would cause far more damage to the EU than to the UK.
Unfortunately, the Treasury as an institution was and remains viscerally opposed to Brexit. If it can’t prevent us from leaving the EU de jure, it can at least try to stop us diverging from EU rules in order to make it easier for us to re-join (probably after an interim period of a single market type arrangement) under a future government of a different hue.
Regrettably, and despite his obvious intelligence, it seems that Rishi Sunak has been captured by this Treasury mentality. Despite the fact that his formal position in the leadership election is that he is now backing the Protocol Bill, he said in an interview with Charles Moore in the Spectator on 30 July 2022:
What I’ve seen in the job that I’ve had is economically that the patterns of trade have certainly changed in a way that moves Northern Ireland further away from the orbit of the rest of the United Kingdom. And there are some very real challenges with the arrangements that are in place currently. I’d like to see those fixed and the Protocol bill gives us an opportunity to do that. But the door should always be there for a negotiated settlement with Europe, not least because it is a lot faster.”
The fact that he hankers after an early “negotiated settlement” with Europe is very disturbing. Of course no-one would say “no” to a negotiated settlement if the EU were to concede the restoration of UK sovereignty over Northern Ireland and the removal of the Irish Sea border restrictions from goods destined internally for Northern Ireland. But the EU is nowhere near offering anything like that at the moment and it will probably take it very long time to get it into that zone. So I fear that the reality of a Sunak premiership would be to trade away the Bill in return for a quick face-saving deal with the EU which would leave most of the Protocol and its problems in place and would be fatal for the long term position of Northern Ireland within the United Kingdom.
Presenting himself as the true Brexiteer
It is particularly disturbing that Rishi Sunak is trying to boost his leadership campaign by presenting himself as the true Brexiteer, versus the Remain-supporting Liz Truss, for example in a campaign video claiming that he (in contrast to Liz Truss whom the video shows standing in front of a Remain campaign stall in 2016) was “a real Brexiteer from day one”.
It is perfectly honourable and reasonable to have supported Remain in the referendum campaign (which, be it remembered, 48% of voters did) and then to accept the result and work to implement Brexit. Liz Truss has a demonstrable track record of having done so, both as International Trade Secretary and more recently in pressing forward with her Northern Ireland Protocol Bill in the face of powerful opposition from Rishi Sunak and others.
Of course, I have a big problem with Remain-supporting politicians who refused to accept the result and then spent years trying to reverse it, or trying to reduce Brexit into a meaningless BRINO – Brexit In Name Only – in which the UK remains a rule-taking satellite state of the EU. I also have a big problem with politicians who claim to be true Brexit believers but in practice work against the process of the UK gaining back its full independence from the EU and from its laws and jurisdiction.
In casting my ballot in the leadership election, I shall be particularly wary about that latter category of persons, and I urge my fellow Conservative members to exercise similar caution. I shall be voting for Liz Truss since I believe her to be demonstrably the better option for restoring our independence and sovereignty as a single United Kingdom.
Martin Howe QC is Chairman of Lawyers for Britain