The Guardian view on Boris Johnson, Brexit and the law: wilful incompetence

·3-min read
<span>Photograph: Barcroft Media/Getty Images</span>
Photograph: Barcroft Media/Getty Images

To outside observers of Boris Johnson’s government, it can be difficult to tell the difference between partisan provocation and rank incompetence. Both generate an aura of chaos. It does not help that members of Mr Johnson’s own cabinet also struggle to understand what is going on.

On a question as vital as the UK’s willingness to observe international law, there is confusion at the highest levels. Earlier this week, the Conservative frontbench voted for the internal market bill that repudiates aspects of the Brexit withdrawal agreement, thus reneging on a ratified treaty. Ministers who worry that they are breaking international law comfort themselves that the breach is insubstantial. It is only “limited and specific”, or so Brandon Lewis, the Northern Ireland secretary, told the Commons.

In parliament’s upper chamber, Lord Keen, advocate general for Scotland, was palpably uncomfortable with that caveated admission of unlawfulness. He suggested that it did not represent the official government position. But it did. Mr Lewis confirmed that he had been reading from a Downing Street script; Lord Keen, whose qualms had earlier been revealed in confidential advice seen by the Guardian, resigned on Wednesday.

Other lawyers with ministerial portfolios have found their own ways to resolve the tension between the oaths they took as legal professionals and fealty to Mr Johnson. Robert Buckland, the justice secretary and a barrister, has said that he would withdraw his support for a bill if it broke the law in a way that “cannot be judged finely or fudged”. That made it sound as if he is holding out for the government to perpetrate a more egregious offence before fully examining his conscience.

Suella Braverman, the attorney general, justifies the bill’s controversial clauses in terms that blend quasi-legal spin with political expedience. The EU has not been acting in good faith, she says. And parliament is supreme, especially “in the difficult and highly exceptional circumstances in which we find ourselves”. In other words, the government should be free to do what it likes because it does not like what the EU has been doing.

In reality, the bad faith is on the British side. Those “difficult circumstances” arise from Mr Johnson’s failure to secure a deal on his preferred terms. He is rejecting the withdrawal agreement out of frustration and panic. He hopes the ensuing crisis will change the dynamic in the negotiations, prodding the EU into concessions. If not, it sets him up for a rhetorical attack on Brussels as the aggressor. He wants an impossible deal or to blame foreigners for withholding it.

That tactic contains two miscalculations. First, Brussels has not taken the bait. EU leaders are not supplying lurid condemnation to feed Mr Johnson’s narrative of grievance. They will wait patiently at the negotiating table. If the UK ends up without a deal, it will be Mr Johnson’s choice. Second, the Tory party is not so in thrall to their leader as to casually forget the law. Senior figures, including two former prime ministers, have criticised the bill. Backbench MPs demanded dilution of its most aggressive provisions.

Mr Johnson, seeing that he had pushed his luck, agreed. But it is doubtful that even an amended version of the offending clauses would repair the harm done to Britain’s reputation as a trustworthy negotiating partner. That does not bother a prime minister who is mostly interested in the domestic political dividend available from striking defiant anti-Brussels poses. Such flagrant disregard for international opinion compounds the damage.

Downing Street attempted a controlled detonation of the Brexit process to advance the UK’s position and achieved the opposite. In this case, there is no distinction to be made between provocation and incompetence. Mr Johnson’s EU policy is a nasty cocktail of both.