We want to be a law unto ourselves. It is no wonder the fight is not pretty

Brexit is a struggle for independence from an EU that often breaks the rules, but wags its fingers at us

The Government, in the form of Brandon Lewis, the Northern Ireland Secretary, says it proposes “to break international law in a very specific and limited way”. This relates to the Northern Ireland Protocol of the EU Withdrawal Agreement.

“Specific and limited” it may be, but it feels like a big step. In the early Eighties, Margaret Thatcher, no friend to Brussels, fought to reduce our European budget contribution. But even she baulked at the idea that Britain should refuse to hand over the money unless its demands were met, because to do so would have been to break the law.

There is an important difference, however, between Mrs Thatcher’s government and our present one. Hers was trying to stay in Europe. Ours is trying to leave. After being pushed out of office, Mrs Thatcher came to think that Britain would be better off out; but when in power, she was always trying to make us better off in. Boris Johnson’s Government, by contrast, was founded – and then elected – on the proposition that we must leave, both in name and in fact.

The history of the past four and a half years has shown that this is easier said than done. Parliament legislated for a referendum and promised to abide by the result, but when the majority voted to Leave, many MPS tried to block it, or nullify its meaning. As Prime Minister, Theresa May pursued a content-free Leave, and so eventually lost power. Over prorogation, the Supreme Court did its best to outlaw Boris Johnson’s successor Government.

Contrary to most predictions Mr Johnson then got an agreement from Brussels and won the ensuing snap election with an 80-seat majority. Britain left the EU on January 31.

That was a political triumph, but the joy on the Brexit side was not unconfined. Our departure came at a cost. In order to get a quick Brexit, Boris ditched assurances given to Northern Ireland, and settled for the semi-impossibility that the province would remain part of the United Kingdom and its customs territory, yet have a de facto customs border not between it and the Republic, but down the Irish Sea. This is unstable, not only for Northern Ireland, but also for the rest of the United Kingdom.

The Government now rightly states that, in the event of a breakdown by December 31, it cannot allow a state of affairs in which, by the famous EU principle of “direct effect”, EU decrees automatically become our law. The EU could then, if it chose, decide to classify all goods crossing from the mainland to Northern Ireland as “at risk” of ending up in the Republic of Ireland, and therefore slap tariffs on them. Then the United Kingdom would no longer be a united kingdom, and the principle of consent in the Good Friday Agreement would have been violated. Hence next week’s legislation that empowers ministers to prevent this, in defiance of the Protocol.

The Government should have seen this problem coming, people say. Actually, it did see it coming, but was in too desperate a position to act at that moment: it needed Brexit fast. Politically, that was understandable – even essential – but it is extremely awkward now.

One feels this is not being well presented. No offence to Mr Lewis, but he is not possessed of a rapier-like jurisprudential mind. Despite his job title, he is not in charge of these matters. It would have been better if the first government minister to deal publicly with this issue had been more senior and/or more legally qualified.

Such a person could have put it differently. “Yes,” he or she could have said, “the legislation we propose will conflict with Article 4 of the Protocol, but we fully intend to negotiate with the EU in good faith to achieve agreement. All we are trying to do is protect our positions.” Then that alarming phrase about breaking international law would have stayed in the mouths of others. Instead, it now gleefully leads every BBC news bulletin.

The context could also be better presented. The breaking of international law is a sport at which the EU itself often excels. Whether failing to implement WTO obligations, or state aid rules, or to punish member-state breaches of its own pact about debt ratios and budget deficits (remember that EU treaties are themselves international treaties), or to comply with laws about migrants and refugees, the EU has, as they used to say in police circles, a record as long as your arm. Yet it suffers much less finger-wagging than Britain.

It is also strongly arguable that the EU’S sequencing of the whole negotiating process from 2017 was in breach of Article 50, and that the sequencing of fishing and state aid as levers in Withdrawal Agreement negotiations lacks good faith. These examples illustrate that international law is usually tangled up with issues of politics and diplomacy. The EU often plays rough, always plays politically, and usually gets away with it.

Britain is not being wicked if it tries some of the same. When David Cameron refused, contrary to international law, to comply with the ruling of the European Court of Human Rights which gave prisoners the right to vote, the sky did not fall in. Besides, Parliament is sovereign, a fact reiterated in Section 38 of the Withdrawal Agreement Act itself. Our domestic law does not just track international law. It is an important principle of our constitution that Government and Parliament can decide what the law is.

The Government’s opponents need to understand something. Mr Lewis’s controversial announcement this week was deliberate (though its timing was rushed forward by a newspaper leak). The Government is determined not to repeat Mrs May’s fatal mistake of making vaguely tough-sounding noises and then giving in. By announcing its proposed breach of international law, it intended to cross the Rubicon with the EU and make it clear where it stands on the other side. It believes this will bring clarity, even respect.

The truth is that no independence struggle can be conducted with perfect decorum. All such battles necessarily involve a dispute about legitimate authority. When they get going, the ruling power starts with the advantage that the legal order is skewed in its favour. Before the United States of America existed, its leaders were “rebel colonists”. Even before Britain existed, England experienced this problem. When Henry VIII wished to break with the Pope, he asserted in the Act in Restraint of Appeals to Rome that “this realm of England is an Empire”. In speaking thus, he did not mean our modern concept of a colonial power. He was simply asserting that England was sovereign, and so the Pope had no authority over him. Out of this dispute grew the English Reformation, and the rise of what eventually became the United Kingdom and the doctrine of the Crown in Parliament. Henry’s motives were largely base and the process was not pretty, but it helped create an independent nation which we came to prize.

The current process of recapturing that independence is not pretty either, but that is unavoidable. The EU itself is still fighting to retain control in all but name. In Britain, its allies in significant sections of the Civil Service, the legal profession, the BBC, etc, are mutinously determined to assist it. From its earliest days, “Europe” has used its system of courts and of law as the key to advancing a political project which has always lacked a full democratic mandate. Britain today has the full democratic mandate to overcome this, but not yet the right people in the right places.