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A Brexit re-write?

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Boris Johnson's government will break international law by attempting to re-do the Brexit deal.

By Joe Mayes

A U.K. minister conceded Boris Johnson’s government will break international law by attempting to re-write the Brexit divorce deal the prime minister signed with the European Union only last year.

Northern Ireland Minister Brandon Lewis told lawmakers in the House of Commons on Tuesday that planned changes to parts of the Brexit Withdrawal Agreement applying to the province would “break international law, in a very specific and limited way.”

He spoke as two of the U.K.’s most senior legal advisers quit: Jonathan Jones, the top government lawyer for the past six years, and Rowena Collins Rice, director general of the Attorney General’s office.

Lewis’s admission, after the government had sought to play down the significance of its planned changes, sparked astonishment and anger among MPs, who warned that abandoning a legally-binding treaty will hurt future attempts to secure international agreements -- including a crucial trade deal with the EU.

“How can the government reassure future international partners that the U.K. can be trusted to abide by the legal obligations of the agreements it signs?” Johnson’s predecessor, Theresa May, asked in Parliament on Tuesday.

    Mister Secretary, you don’t « break international law in a specific and limited way ». You do break it or you don’t. You can’t be half illegal, as you can’t be half pregnant.

    — Nathalie Loiseau (@NathalieLoiseau) September 8, 2020


Johnson’s spokesman, James Slack, declined to comment on the reasons for Jones’s departure. Collins Rice, whose departure had been in the offing for several months, is taking up another public appointment, according to a person with knowledge of the matter.

The government also risks reviving one of the most controversial obstacles to a Brexit agreement -- how to avoid a hard border on the island of Ireland -- just as U.K. and EU negotiators hold talks in London in an effort to break the deadlocked trade negotiations.

The EU has warned that backsliding on the divorce deal would scupper any chance of a trade deal, increasing the risk of economically-damaging tariffs and quotas being introduced at the end of the year. Ireland, which has a lot riding on the outcome of Brexit, expressed outrage.

‘Gravely Concerning’

Irish Foreign Minister Simon Coveney had this to say: “I’m aware of the briefings and comments regarding the U.K.’s government’s intentions. If those comments represent the considered view of the British government, I find them gravely concerning.”

He went on to all it an “unwelcome distraction” and that such an approach would be “hugely problematic and illegal.”

The controversy centers on the Withdrawal Agreement’s requirement that Northern Ireland continues to be bound by the EU’s customs rules after Britain leaves the EU’s single market and customs union on Dec. 31. That effectively established a border in the Irish Sea, with businesses in Northern Ireland facing the prospect of having to file customs paperwork if they want to move goods to the rest of the U.K.

In a bill due to be published on Wednesday, the government plans to give ministers powers to waive the requirement for such paperwork, should the issue not be settled by joint talks with the EU this year.

Johnson’s office said the prime minister made promises prior to signing the divorce deal that he wanted to uphold, including that there would be no paperwork on trade between Northern Ireland and Great Britain.

The government has argued that it signed the Withdrawal Agreement expecting to then reach a trade accord with the EU -- and is only providing a safety net in case those negotiations fail.

“There are clear precedents for the U.K. and indeed other countries needing to consider their international obligations as circumstances change,” Lewis said.

That assertion was immediately questioned, and could leave the government open to challenge in the courts.

“Circumstances haven’t changed,” Raoul Ruparel, May’s former special adviser on Europe, tweeted. The “prospect of there not being a free trade agreement was entirely foreseen and accounted for. So this doesn’t hold water.”

A growing number of MPs from Johnson’s own party also criticized the move -- which risks a second legal defeat for the prime minister. A year ago, in an unprecedented ruling, Britain’s highest court found his decision to suspend parliament was unlawful.

“That sound you hear?” tweeted George Freeman, a Conservative who represents Mid-Norfolk. “It’s the sound of the Supreme Court preparing to remind Ministers that intentionally breaking the law -- even in a very specific and limited way -- is, well, unlawful.”

--With assistance from Dara Doyle and Peter Flanagan.
© 2020 Bloomberg L.P.
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