by Polly Mackenzie
Wednesday, 9
September 2020
Debate
16:38

Don’t call the new Brexit bill ‘illegal’. It isn’t.

by Polly Mackenzie
Credit: Getty

Fifteen years ago, over dinner in Soho, an intelligent, compassionate, handsome and legally trained young man told me there was no such thing as international law. I burbled something about the post-war human rights settlement and then I burst into tears. But this is the real confession: I didn’t break up with him. I dated him for months, because he was, in large part, a great guy.

I personally am outraged by the government’s threat this week to knowingly ‘break international law’. In my view, this is a line we should never cross: if we, as a nation, cannot be taken at our word, why would other countries take us seriously in any future treaty negotiations? But we cannot and should not assume this decision will cause any political harm to the government. You do not have to be a Barnier-hating Brexiteer to think that a democratically elected government should be able to do what it wants. I’m grateful to have been on that date: it helped me see that normal, reasonable people often struggle to perceive the legitimacy or value of any kind of supra-national law.

Most people understand ‘illegal’ to mean the things the government says are not acceptable. So the very idea of the government doing something illegal is pretty hard to get your head around. That’s why judicial review and human rights have a bad name in so many circles: it boggles the mind that the government could have an illegal benefits system, when it passed a law establishing that benefits system. And yet countless judicial reviews have been brought against the benefits system, many of them successfully.

My date — all those years ago — objected to the idea that the Iraq War was illegal. He accepted it might have been wrong, but believed the actions of a nation-state could not be ‘illegal’ in the common conception of the word, because there was no government to which that nation-state was subject.

I’m not asking for anyone to explain the complexities to me. I not only understand, but welcome, the constraints placed on our government by the Human Rights Act and the common law principles of reasonable decision-making. I believe in the multilateral system established after the second world war, and if anything I wish it constrained us more effectively.

But illegal is not the right word to use, if we want people to understand what the hell these legal experts are complaining about. I’ve seen hysterical commentary suggesting no-one will obey Covid restrictions anymore, because Brandon Lewis is repudiating a treaty that we signed. I’ve seen people suggest there’ll be more robbery and violence on our streets, and that people will stop paying their taxes. That’s a fundamental category error. International law is important, but it is not the same as the laws which tell us not to punch people. Governments are not people.

It is not criminology that tells us states should comply with treaties that they sign. It is game theory: if you want to be trusted, you have to be trustworthy. If you want other countries to do what they promise you, you have to do what you promise them.

So let’s stop saying Brandon Lewis has signed a criminal’s charter. Like crying at dinner, it doesn’t win the argument. It just makes your chips soggy.

Comment


  • September 14, 2020
    Not entirely certain that learned counsel earned his fee (except from the Spectator). Parliament wouldn't, under normal circumstances take power, or even contemplate taking power, to commit a an admitted breach of international law (however minute) if it did not feel at least the temptation to... Read more

  • September 13, 2020
    That would come as a surprise to Geoffrey Cox: Geoffrey Cox: Honour rests on keeping our word Geoffrey Cox Sunday September 13 2020, 10.00pm BST, The Times [...][But the duty of good faith is a two-way street. The EU faces a precisely equal obligation and if, as reported, it has sought to use the... Read more

  • September 13, 2020
    That would come as a surprise to Geoffrey Cox: Geoffrey Cox: Honour rests on keeping our word Geoffrey Cox Sunday September 13 2020, 10.00pm BST, The Times [...][But the duty of good faith is a two-way street. The EU faces a precisely equal obligation and if, as reported, it has sought to use the... Read more

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