Bad Faith Negotiation

I seldom comment on Brexit, largely because I neither see leaving the EU as a panacea nor the EU itself as a Utopia, and am alienated by the over-extravagant passions and claims on both sides. In addition to that, the FCO is largely excluded from Brexit negotiations, being perceived by the Tories as a nest of remainers, so I seldom get any interesting information fed to me by ex-colleagues.

I should admit at this point that my apparently effortless expertise on myriad subjects is something of a fake, because often posts are prompted and informed (and very rarely, even written) by someone on the inside, and sometimes it is not possible to tell you that. But sometimes I can tell you, and today this knowledge comes from the inside.

The Legal Advisers of the FCO remain the UK government’s source of expertise on public international law. When the Attorney General publishes his view on such a matter, it has been drafted by FCO Legal Advisers or at the least is based on a minute from them. The sole exception to this of which I know was when Blair’s Attorney General, Lord Goldsmith, received formal advice from FCO Legal Advisers that to invade Iraq would be an illegal war of aggression. Goldsmith then flew to Washington on instruction from Blair and Goldsmith’s final advice that the war was legal was based on drafting, not from FCO Legal Advisers, but from George Bush’s Legal Advisors. That is one of those incredible facts that I often find hard to understand do not lead to active public outrage. I wish I was a more religious man and could be sure that Hell awaits Goldsmith. I comfort myself with the thought that Goldsmith might himself be religious and cowering.

There is currently considerable alarm in the FCO that Legal Advisers have been asked about the circumstances constituting force majeure which would justify the UK in breaking a EU Withdrawal Agreement in the future. The EU did not fall for Johnson’s idea that a form of Northern Irish “backstop” would only come into effect with the future sanction of Stormont, as this effectively gives a hardline unionist veto, and Barnier was not born yesterday. The situation that Johnson and Raab appear now to contemplate is agreeing a “backstop” now to get Brexit done, but then not implementing the agreed backstop when the time comes due to “force majeure”.

There are two major problems with this line of thinking. The first is that it will give unionists an incentive to foment disorder in order to justify breaking the backstop agreement – indeed there is a concern that might be the tacit understanding Johnson is reaching with the DUP. Remember the British state conspired with the same people to murder the lawyer Pat Finucane and destroyed the evidence as recently as 2002.

The second problem is one of bad faith negotiation, and this is what is troubling the diplomats of the FCO. To negotiate an agreement with the secret intention of breaking it in future is a grossly immoral proceeding, and undermines the whole principle of good international relations. I should like to be able to say that I am sure this cannot be the intention. But when I look at Johnson, Raab and Cummings, I am really not so sure at all. It is possible that Johnson will succeed in the apparently insurmountable challenge of securing a deal all parties can agree, by the simple strategy of promising some parties he has no intention of honouring it.


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