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Boris Breaks the Law

In the UK, the stigma against breaking international law, domestic law and constitutional norms has been significantly eroded since Boris Johnson became PM. How do decent honest UK officials agree to repeat the ‘Lines To Take’ that are circulated by the Foreign Office or No. 10 in circumstances where those lines are misleading, nakedly political or even illegal.


We live in an era that has been described as a ‘democratic recession’. The Economist Intelligence Unit reported earlier this year that only 46% of the global population live in a democracy ‘of some sort’. 7% live in ‘full democracies’. This is an astonishing figure in 2022.


Likewise, Freedom House reported last year that there has been 16 consecutive years of decline in global freedom.


In other words, this pattern of decline records the fact that many of the countries that rank as autocracies or at least not a full democracy have seen freedoms eroded gradually and insidiously. It’s like the answer to the question - how did you become bankrupt. The answer is, “in two ways - gradually and then suddenly”. That is why it is of utmost importance to call out these trends at the earliest possible time.


The charge sheet against the current UK Government is long and getting longer and needs to be called out at the earliest possible time.


The most brazen recent example was the attempt to prorogue Parliament before being stopped by the UK Supreme Court which found that ‘it was unlawful to frustrate or prevent Parliament from carrying out its constitutional functions’ - that this needed to be said to the Government by the highest court in the land is itself truly astonishing.


The second well-known example is the Internal Market Bill proposed by the UK Government in September 2020 which, familiar to us now, sought to dis-apply elements of the NI Protocol.


This is why, with surprising candour, Minister Brandon Lewis admitted that the provisions were breaking international law in a specific and limited way. The Government eventually stepped back from this position but not before the resignation of the UK’s top law officer, Jonathan Jones.


The final example I will mention is the Protocol bill which passed second stage in the House of Commons last week. Again, the purpose was to dis-apply parts of the NI Protocol. The same Jonathan Jones, writing for The House website, described it as even more brazen than the UK Internal Market Bill and noted that “the UK has shown the world that it is prepared to walk away from important treaty obligations on the flimsiest of pretexts”.


One of the major differences between Ireland and the UK is the concentration of power and the source of power. In the UK, power is concentrated in Westminster and if you have an overall majority, you can pretty much do whatever you want. In Ireland, power is distributed because of coalition governments, a written constitution, free media and the idea of the people (not the Crown) being sovereign.


Law students in Ireland might remember the case of Byrne v Ireland which established the idea that the people were sovereign and that the State (Ireland) could be sued.


The other big difference is that it is a while since anyone like Boris Johnson was elected to lead Ireland.


Bobby McDonagh wrote an opinion piece on this subject in the Irish Times in which he noted that one of Johnson’s teachers at Eton reported “I think he honestly believes that it is churlish of us not to regard him as an exception, one who should be free of the network of obligation which binds everyone else.”

Which is a long way of saying that relations with the UK will not improve until we see the back of Boris.


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