Suddenly it all seems relevant!

I was very lucky to study Jurisprudence for three years under Professor Sandy Anton, an international lawyer of terrifying intelligence, then to be sent off to study at the Hague Academy of International Law, as a result of which I am entitled, under that law, to describe myself as an “Attender” but not an “Alumnus”, having decided not to take the exam. Thereafter I was appointed to teach the subject, getting the vacancy left when John Smith went into politics. For the next thirteen years my working life was brightened up with twice weekly tutorial discussions and annual conferences hosted by the Association for Social and Legal Philosophy. I’m no expert, but have retained a lifelong interest and studied events over the decades since. The period runs from the United Kingdom’s entry into what became the EU to the current bùrach.

Those discussions often concerned the conflict between the English doctrine of the Sovereignty of the Westminster Parliament and the consequences of becoming part of an international club. For the benefit of anyone coming to this territory for the first time I will offer a quick trot over the course.

I described the doctrine as English because Scotland never developed such an absolutist theory at any time from first becoming a country to joining the Union. The King was the King of the Scots and ruled with their presumed consent, see, for example, the Declaration of Arbroath. By contrast English legal theory went down an absolutist path, which intensified when empire-building supplanted trade as the engine of economic growth.

In the late Victorian era of gunboat diplomacy this international thuggery, now termed Sovereignty, came to be expressed in legal terms by writers such as Albert V Dicey and that forms the basis for the constitutional position to this day. I nearly wrote “settlement”, but the matter has never been up for negotiation. As currently understood, the doctrine means that no Westminster Parliament can ever bind its successors, so in practical terms anything written in an Act is only valid until Parliament decides to change it. No window dressing, no “vow” by a group of leading cross party politicians can mean anything, it’s all up for grabs. It’s like playing cards with a fellow who has his pistol on the table.

When the Westminster Parliament enacts something, such as “The Scottish Parliament and the Scottish Government are a permanent part of the United Kingdom’s constitutional arrangements” this is legally, in terms of the United Kingdom “constitution” complete rubbish. That responsible people, such as Professor Tomkins, a senior legal academic moonlighting as a politician, were involved in promoting this sort of deception is beneath contempt. It was always clear that the so-called United Kingdom Supreme Court, in reality only a Westminster creation, would rule the way it has done recently.

So, that’s the domestic position, what’s the position in International Law? Forty or so years ago academics were very exercised at the apparent conflict between Westminster Sovereignty and EU law and expected to see disputes and litigations emerging. The issue centred on the fact that while almost all the other member states had written constitutions, often imposed by the Allies, expressly making national law subservient to international law, the UK didn’t. The reason why problems haven’t arisen does not mean that some magic solution was found; it’s simply down to the fact that both sides recognised the manifest benefits, both ways, of UK membership. During the most heated rhetoric of the Thatcher period this always remained the underlying reality.

That reality remains unchanged by Brexit. Even the neo-fascist fools who grabbed power last December no longer pretend that people will be better off. A huge price is to be paid, almost certainly by the poorest in society, for a trip into an English nationalist fantasy world, where people have blue passports that they can’t use and little else.

This week we have seen, certainly for the first time in my adult lifetime, a government minister openly and expressly stating that the United Kingdom intends to violate an international treaty and, to top that, a treaty negotiated, signed and approved by the politicians who are currently in power. The sheer enormity of this would have sent electric shocks through those academics at the conferences I mentioned. As Lord Kerr and Lady Macintosh and others were saying yesterday in the House of Lords, this puts the United Kingdom in the position of a rogue state.

But has the position in terms of International Law changed? Tragically I think not, but I’d be delighted to be proved wrong. Compliance with treaty obligations is still very much a matter of mutual recognition of self interest. There is no international super state police force. If a State breaks the rules others will react at levels rising from expressions of disapproval, through breaking off relations and so on. The damage done this week puts the United Kingdom, jurisprudentially, in the same place as North Korea and the world leader in these matters, the United States. The lesson is that rulers can get away with breaking the rules if either they don’t care about their people or they’re big enough. I hate to think which category the United Kingdom belongs to.

Over the remainder of this year we will see the consequences of the current insanity working through. It’s now virtually certain that there will be a “no-deal”. Specifically regarding Northern Ireland it’s likely that Westminster will not take steps to put in place the customs officials and checks required in order to respect the Withdrawal Agreement. There will then be a challenge to the Republic of Ireland as an EU member state to put up a hard border. That is no doubt the calculation of Johnson and friends, but is it really likely that they would do so? My guess is that they will decide to put up with a lot of smuggling in the short term to avoid a return to the Troubles, while mustering all forms of international pressure and support to bring the United Kingdom to heel. Regardless of who becomes President in November the Irish lobby in the States will be very active in this. And don’t forget that the Irish have the right in terms of the Withdrawal Agreement to a referendum on unity.