The Anatomy of a Potential Constitutional Crisis – Part I

12th September 2020


This has been an eventful week for law and policy – and for breaches of law and for a lack of a policy.

The highlight – something so extraordinary and constitutionally spectacular that its implications are still sinking in – was a cabinet minister telling the House of Commons that the government of the United Kingdom was deliberately intending to break the law.

This was not a slip of the tongue.

Nor was it a rattle of a sabre, some insincere appeal to some political or media constituency.

No: law-breaking was now a considered government policy.

It was a quite remarkable moment.


That this was now a formal government position was then demonstrated by two other events.

First, the government’s senior legal official – the Treasury Solicitor – resigned on this issue (and my Financial Times post on this significant resignation is here).

Second, the government published a Bill which explicitly provides for a power for ministers to make regulations that would breach international and domestic law.

These two events show that the government’s proposal for law-breaking is not a sudden or improvised development.

A lot of time, effort and resources has gone into this.

The resignation of the Treasury Solicitor appears to have been after a number of Whitehall exchanges involving ministers, officials and government lawyers, as well as external counsel.

Draft legislation also does not appear from nowhere, and a published Bill is itself the result of a detailed and lengthy internal process, before it is ever presented to Parliament.

This proposal has been a long time in the making.

We all only got to know about it this week.


Any constitutional crisis – potential or otherwise – exists on two planes.

The first is the plane of high constitutional principle.

Here the most relevant constitutional principle is that of the Rule of Law.

(On this, I did a short exposition of the importance of the Rule of Law at Prospect and I also discussed it with human rights barrister Adam Wagner on his podcast.)

Put simply the principle here can be articulated as: the government is not above or beyond the law.

The government’s proposal may also raise (or will soon raise) constitutional issues such as the relationship between the two Houses of Parliament (if it is voted down by the Lords), the Irish border and the position of Northern Ireland, and the situation of the devolved administrations.

These constitutional matters are broad and could be relevant regardless of the detail of the proposals – whether the policy in question was about terrorism or agriculture.


The second plane is that of policy.

What is the policy objective that the government is seeking to achieve that, in turn, raises such constitutional concerns?

Here something does not make a great deal of obvious sense.

The purported concern is about the state aid regime on the island of Ireland after the end of the Brexit transition period on 31st December 2020.

I explain some of the detail of this purported concern on this video for the Financial Times.

There are two reasons why this being the cause of this potential constitutional crisis does not add up.


First, there are other ways the government could address their apparent concerns about state aid and Ireland following Brexit.

For example, the government could have a post-Brexit state aid policy that it could discuss with the European Union in a sensible and mature manner, and both sides could then agree how to deal with any conflicts with the withdrawal agreement and the Irish Protocol it contains.

But the United Kingdom government does not know what its state aid policy is and has said it will be 2021 before one is published.

So whatever the ultimate cause of this potential constitutional crisis, it is not (and cannot be) any concrete policy differences on state aid and Ireland – because the United Kingdom government does not (yet) have a concrete policy on state aid and Ireland.


Second, the provision in the withdrawal agreement which the government asserts is the problem – Article 10 of the Irish Protocol – is something this very government negotiated and agreed to itself.

The government would have known the effect of what it was agreeing to – before signature the government legal service would have explained to ministers all the provisions in the withdrawal agreement.

And not only did the current government agree the withdrawal agreement, it campaigned at the December 2019 general election on the basis of putting this ‘oven-ready’ agreement into effect.

And the withdrawal agreement was indeed swiftly passed into law by an Act in the days before the United Kingdom formally left the European Union on 31 January 2020.

In essence: the withdrawal agreement was something this government negotiated, signed, boasted of, campaigned on, received a mandate for, and passed into domestic law.


And now the same government wants to break that same withdrawal agreement, less than a year after it was agreed and signed.

The problems with this are, for anyone other than the most partisan supporters of the government, stark and serious.

No other country will take the United Kingdom seriously in any international agreements again.

No other country will care if the United Kingdom ever avers that international laws are breached.

It is a stunning self-trashing of the United Kingdom’s place in the world.

And domestically the predicament is much the same.

Who will take seriously the government’s insistence on abiding by the law if the government itself openly has law-breaking as public policy?


I love and enjoy watching and commenting on any constitutional drama

(You will get a sense of my sheer excitement on the Bunker podcast on this matter.)

But usually the constitutional drama makes some sort of sense.

Here there seems a deep mismatch – a disconnect – between the potential constitutional crisis and the underlying policy problem.

The United Kingdom does not (yet) have a post-Brexit state aid policy, and with open eyes it agreed to the Irish Protocol less than a year ago.

The problems, if any, with state aid in Ireland after 1 January 2021 do not require the United Kingdom government to propose and legislate for, in September 2020, a deliberate policy of law-breaking.

There is no rational explanation for what the government is doing.

And if there is no rational explanation then that leaves fanaticism, cynicism, conspiracy and/or idiocy.

Each of these are possible – either alone or in combination – but the lack of any genuine policy basis for risking a constitutional crisis, let alone forcing one, makes this a very strange constitutional drama.


This, however, is not yet a constitutional crisis.

There is every likelihood that the tensions here will be resolved by the government u-turning or being defeated during the Bill’s passage through Parliament.

If enacted, then the Courts may find a legal basis for limiting the use of the regulations made under the Act.

That would be the constitution working.

We are not at the ugly stage where a government minister is actually making a regulation that would break the law and there was no way of stopping this.

That would certainly be a crisis, by which I mean as serious and unpredictable situation where there is no obvious resolution – a constitutional contradiction rather than a tension.

A government deliberately breaking the law would create such a situation – and nobody can know what would happen next.

So this is still a potential constitutional crisis, not an actual one.

But it is an extraordinary and spectacular potential constitutional crisis.


ps Title amended to add ‘Part I’ on 13 September 2020


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43 thoughts on “The Anatomy of a Potential Constitutional Crisis – Part I”

  1. These two events show that the government’s proposal for law-breaking is a sudden or improvised development.

    Is this sentence missing a “not”?

  2. David – may I ask what you make of the article by Ekins and Verdirame (2015) arguing for the position now being taken by the UK government? The one example they quote is prisoners’ voting rights, where the then government ignored an ECtHR ruling. One thing that struck me is that that was a court ruling which conflicted with already established UK law. What this government is proposing is a new law which conflicts with an agreement already made.

  3. The resignation of the Treasury Solicitor was important, but his recent letter to Government lawyers, making it clear that the newly appointed Cabinet Secretary had overruled his advice on whether the Civil Service Code permits civil servants to work on the problematic parts of the IMB, was extraordinary.

    Because Mr Case is now publicly and directly tied to the proposed breach of international law, his tenure as Cabinet Secretary cannot now outlast Mr Johnson’s time in Downing Street. Given the strongly negative reaction to the proposals, not only in Europe but in the US, a top priority for a new PM (of either party) will be to expunge anyone connected with them. This has implications for the present. In normal circumstances, ambitious civil servants would be vying to work closely with a newly appointed Cabinet Secretary who could be expected to be in post for ten years. Seeing that Mr Case is lashed to the mast of Johnson’s ship, however, they will now be wondering whether it might be smarter to keep their distance.

    I do sympathise with Mr Case. It is the stuff of nightmares for an issue like this to arise in your first week in a new job. But I wonder whether resignation might have been the smarter move for him, too, in the medium term.

    1. Disappointing but, from what little I’ve heard about Mr Case, unsurprising.

      Honestly, I think what rankles me more is the number of outgoing Permanent Secretaries who *didn’t* leave an exit wound on the way out, in the way the TSol did. You don’t get that high in the CS without knowing where a few bodies are buried (OSA notwithstanding), and if there’s any kind of higher principle in play, the departees owe it to the country to expose the unethicality of the mob in charge.

      Anyone know what’s going on with Sir Philip Rutnam’s constructive dismissal case?

  4. The much heralded Japanese/UK trade deal, 80/20 in Japan’s favour, is not a done deal.

    The Japanese Parliament has yet to ratify it. The vote is set for January 2021.

    One imagines that the Parliament’s members will be taking a keen interest in how this matter develops.

  5. The things supposedly said by the PM to his MPs, in his Zoom conference with them yesterday, may put a different spin on this? References to a “foreign power” seeking to “break up the UK”, and how he could not countenance a border between NI and the rest of the UK, in the Irish Sea, seemed to me, on the one hand, quite extraordinary, because it was precisely this arrangement he signed up to, yet on the other hand, sadly of a piece with what seems to be the default approach of this PM and his government, in identifying “enemies” and then confecting conflict with them. I have no idea where this will end, but we do already seem in a very bad place in terms of alienating the EU, when, like it or lump it, we will desperately need a good relationship with the bloc, in the years to come.

    1. ‘References to a “foreign power” seeking to “break up the UK”’

      Writing even as one who detests hyperbole, I’m afraid it needs to be pointed out again that this is *exactly* how Fascism works.
      I’ve regularly been citing *that* observation by Göring since even before the referendum (returning to the UK I was shocked and saddened to hear the widespread level of hostile rhetoric blaming immigrants for every possible ill which had apparently come to be acceptable and normal in public discourse) so perhaps I’m in danger of sounding as I see things wherever I look which others don’t, but surely the mechanisms at work here and the direction of travel must now be clear.

      The fact that his inevitable response just days later to continued unrest among his own MPs is to follow up with more chest-beating about the ECHR and, on top of that, that this should be presented as another “confrontation with the EU” could hardly leave less room for further doubt.

      Some may want to debate whether the populist playbook is a deliberate choice or whether it is simply that its marching songs appeal to the tin ear of those with an incontinent thirst for power, scant moral principles and little care for the broader or longer-term consequences . But we have abundant historical demonstration that venal intentions make little difference as to the terminus to which such tramlines lead.

  6. Could it be that this is the first round in another Cummings intention of taking another of our institutions down, in this case, the House Of Lords.
    They have recently nominated various supporters of an extreme form of Brexit to the Lords. Starting a conflict with the Lords, where they now have more support, ( though not sure whether their recent additions would change the balance of any potential voting power) which is where this law breaking plan will obviously be voted on will then start a tit for tat crisis where a populist government creates the now usual, MSM created hysteria about an unelected chamber, similar to how they have attacked the judiciary.
    Maybe more longer term plan but this is the start of the plan?

    1. The Conservative Party, despite recent additions, no longer has an overall majority in the House of Lords.

      This ‘deplorable’ state of affairs is of very recent origin as until it occurred the Tories had always had an overall majority in the Lords.

      Their lordships were once described as the “watchdog of our constitution” by a Tory MP in response to David Lloyd George referring to them as “Five hundred men, accidently chosen from among the ranks of the unemployed”.

      DLG responded to their description as a watchdog by referring to them as “Mr Balfour’s poodle” (Arthur Balfour was then Conservative leader in the Commons).

      Oh, the irony that would flow from the party that has benefited most from an unelected second chamber over centuries now turning on said chamber for being unelected when once its unelected nature was seen as a mark of virtue by the very same party.

  7. A simple factual question of constitutional history: has any government, anywhere, democratic, authoritarian, communist, fascist, feudal or whatever, previously announced formally that it planned to break a law which it itself had made?

    1. There’s Saddam Hussein’s “Do you seek to use my own laws against me ?” at his trial. Not quite what you asked, but pretty close.

  8. I can’t understand why UK citizens (and bond-holders) are not more bothered about this. If the Government is prepared to break its own international agreements of a few months ago, what security do citizens have that they will not break domestic law agreements with them ? Pensions, benefits, social housing, tax, bond interest and repayments -we depend on believing the State will not break its agreements or even informal commitments.

    1. “If the Government is prepared to break its own international agreements of a few months ago, what security do citizens have that they will not break domestic law agreements with them ?”

      Perhaps of more immediate concern, what grounds now do citizens of Northern Ireland have for believing that the provisions of the Belfast / Good Friday Agreement will continue to be respected, and will not simply be cast aside by an over-powerful English Westminster executive should it consider this expedient in the interests of avoiding a few awkward headlines or malcontented mutterings from back-benchers.

      * A Cabinet Minister has announced to the Commons that the Government is perfectly prepared to break international law;
      * the Government has formally put a bill before Parliament which would give ministers the power to make unspecified violations of treaty obligations at will , and which, furthermore, seeks to put the Government above the Law with unlimited immunity to all possible legal challenge in doing so;
      * the Attorney General —the chief legal adviser to the Crown and the Government and the Law Officer who represents the government in front of the International Court of Justice— has issued an official statement that the Government’s legal position is that Kevin the Prime Minister can do whatever he finds convenient *BECAUSE*!;
      * the Cabinet Secretary —the head of our administration— has formally has determined that the breaching of international law by ministers and senior civil servants is compatible with and in accordance with their obligations under both the Ministerial Code and the Civil Service Code.

      What else is left? There is no way now to claim that this situation is an aberration, an incautious or ill-advised off-the-cuff remark by an over-ideologically obsessed minister. This is the solid official statement of the principles and intentions of the UK’s elected government expressed through the full machinery of state.

      Suppose now, for example, an extremist member of a paramilitary group argues for continuation of armed struggle on the basis that the long-term intentions of the UK Government cannot be trusted, and that they will simply renege on any commitment to process when they find it convenient to do so, how would a more moderate Irish nationalist comrade now argue against that and in favour of respecting the GFA?
      It’s an absolutely deadly serious question: “Can we trust the UK or is this just a trick?” was a key live issue, only overcome by years of trust-building and careful negotiation, and with the help of common membership of the EU (removing many barriers to peace by establishing common institutions and forums and matching rights and conditions between the two sides of the border) and of the USA as guarantor. When international obligations are now being abandoned for the sake of domestic political optics in the face of opposition from the EU and bipartisan warnings and criticism from the USA, the answer is confirmed as, “See, I told you it was all just a trick!”

      Johnson and his rogue Government has not only trashed th UK’s reputation, soft power, and negotiating strength, but he has also casually escalated the risks of a return to violence on UK territory.

      1. Thanks, Charlie.
        I’m not qualified to comment on anything N. Irish, but what you say sounds convincing to me, and is indeed more immediate in time than what I raised.

        The reason I focussed on the “UK” (actually English) reaction (or hardly any, as it seems) is not in the slightest principle-based, just practical. Just as you pointed out, it seems Westminster doesn’t care at all about N.I., so I suggest the English press and Brexit-voting population are a bit similar, so I’m not that surprised in practice not to have heard about that aspect.

        But I still am surprised not to have heard more from the English civilians and their Press for reasons I outlined, not to mention internationally based UK bond-holders. If you follow Twitter, you’ll see all sorts wading in to say “EU hasn’t negotiated in good faith” etc as “justification” for the Govt move, no mention of what that means for N.I./Good Friday. What I don’t understand is why they aren’t a bit more concerned about their own position ?

        It’s a big stretch, but I fear they are thinking “The Govt will do it to the EU/foreigners, but never to me – I’m British (thinking English, no regard for N.I to whom the Government is doing it, as you outline)”.

        So, to remind of Martin Niemoeller – (roughly) “First they came for the Jews, but I did not speak up, because I was not Jewish. Then they came for the trade unionists, but I did not speak up, because I was not a trade unionist…..Now they are coming for me, and there is no-one left to speak up for me”.
        Regards and thanks,

  9. At last someone who speaks the truth, however with this governments track record of law breaking why should anyone be surprised. Cummings and co have destroyed this countries reputation and brought our parliamentary democracy into disrepute, any Conservative MP who supports the breaking of international law should resign and hold their heads down in shame.

  10. Tʏᴘᴏ:
    ❝ These two events show that the government’s proposal for law-breaking is a sudden or improvised development.❞

    Missing ‘not’…

    Sincere best wishes,
    Rob Fawcett

  11. ‘There is no rational explanation for what the government is doing.
    And if there is no rational explanation then that leaves fanaticism, cynicism, conspiracy and/or idiocy.’

    Or abject desperation. But I agree, it’s hard to see what the government wants to achieve by this. As the UK is the weaker partner in the negotiations, they may be seeking to gain leverage; but the EU will correctly see an element of moral hazard in any concessions given to this sort of brinkmanship. It must also know that the arbitration process in the WA would surely find in its favour, which would reinforce any sense on their part that there was little incentive to offer concessions.

    Equally, maybe the government simply hated the deal all along and simply wish to scrap it. But no-deal was clearly not thought to be a proposition they wanted to campaign on in the election last year; even if the next one is still distant many voters will not forgive the government for the oven ready deal combusting. This particularly follows given that no-deal is not an end-state but simply generates painful economic hardship and a stalemate that can only be resolved by one of the parties (i.e. the smaller one) giving way. Aside from anything else, has London really thought about what a Biden Presidency might have to say about this? Rather more than Pelosi did, I would suspect.

    Lastly, if the integrity of the UK was of any actual concern to them, why have they not simply repudiated the NI protocol in its entirety? In themselves, I would guess (from a layman’s perspective) the unilateral changes on state aid and exit declarations would not collapse the treaty as a whole. I’m not sure how far they have to go on gutting things like tariffs before the entire NI border starts to look WTO non-compliant though?

    1. No party to an international treaty may unilaterally amend that treaty. Therefore any unilateral changes would constitute a breach of the treaty and would, in effect, collapse the treaty.

      The European Union has the power to bring the matter to the European Court of Justice, and it is hard to see an outcome where the United Kingdom wins. This would allow them to fine the United Kingdom or impose other punitive measures.

      The United Kingdom may unilaterally withdraw any legal status the treaty has domestically by repealing the Act that implements it, because our legal system is dualist: a treaty only has domestic effect through the domestic legislation that implements it, e..g the since-repealed European Communities Act 1972 which implemented the various EU treaties admitting us to the union.

      In that sense, unilateral withdrawal is possible, but it looks bad to voters given the Government sold them on this “oven-ready” agreement last year and would, presumably, threaten the NI peace process which is why the Government probably hasn’t gone along with it.

    2. “but the EU will correctly see an element of moral hazard in any concessions given to this sort of brinkmanship.”

      Anybody who had given more thought to game theory (or negotiation) than to read the blurb on the back of a popularisation and presume that their own prodigious intellect would intuit the rest would realise immediately that an experienced and continual player of “Negotiation” will never accord even the most minimal benefit to any counter-party from flouting the rules or reneging on previous promises, still less from threatening to do so. To offer any such concession, no matter what the circumstances, could only ever be a stupid act of self-harm.

      To suggest that an international organisation party to hundreds of treaties and accords, one which exists primarily to serve such treaties, would be swayed by threats to break international law by one party … and yet such lunacy is easy to find as a subject of apparently serious discussion across our allegedly serious media!

      We must conclude that either we are in the hands of truly hopeless idiots and incompetents, or else that other games are afoot (of course, these alternatives are not mutually exclusive and can be combined).

      The diagnosis which most easily matches the symptoms is that the games are “Blame” (with its sidekick “Point-the-finger”) and “Two-minutes-hate-style populist demagoguery”. Effectively no material negotiation is or has been taking place, as any such would risk losing “Blame” points, not least because all progress is impossible (albeit for marginally different reasons under Johnson and May) without acknowledging the provenance of at least a few pebbles from the mountain of pure lies and deceit upon which the whole project has been founded.

      Everything else is secondary at best, subjugated to the need to obfuscate reality and to maintain a perpetual atmosphere of conflict, grievance, insecurity and angry resentment.

      To my eye there has been little else in play since the end of 2017, at the latest, apart from the sideshow of Johnson’s own presidential campaign. That they have chosen this juncture to blow up the discussions means either that they believe the end-game has arrived, or else that something still more sinister is under way from which they are desperate to distract attention.

      1. ‘Everything else is secondary at best, subjugated to the need to obfuscate reality and to maintain a perpetual atmosphere of conflict, grievance, insecurity and angry resentment.’

        You may be right that attempting to interpret any of these events as the product of a rational strategy is probably futile. If there is an actual end-game to any of this, I really can’t see what it could be. So, just generating an ongoing culture war as the country crashes and burns might as well pass for an outcome.

  12. For the galaxy brain, this is a win-win. Bill fails = either Commons or Lords to blame: Bill passes = EU to blame for resulting chaos. All short term thinking, but that is all that matters to this Govt. whilst the kleptocracy continues at pace.

    1. Cummings’ primary skillset appears to be
      * Doling out public money to his mates
      * Messaging

      He can *try* to shift the blame all he likes, but there’s no guarantee it will work. The population at large are rightly blaming HMG for the shambles that is our COVID-19 response, despite attempts to blame, at various intervals, China, SAGE, the CMO, young people, tourists, etc, etc.

      If it all goes wahoonie-shaped over Brexit, it’ll be the Vote Leave cabal in the firing line, as even the Brexstremists realise they were duped, and no amount of client journalism in in the Sun/Mail/Express/Telegraph will deflect it.

  13. The desperate claim, among several, that this move is intended to protect the GFA (from whom?) lends the lie to the rest of it. A no-deal, non-compliant UK forces the erection of a hard border under WTO rules, the worst outcome possible. In the meantime, cross border smugglers make hay in every direction.

    On the other hand if this is a negotiation tactic similar to Israel’s recent undertaking to delay sequestering Palestinian land, it’s not terribly clever either: “we might not be lawbreakers today, but tomorrow, who knows?”

  14. As I think you have rightly said Mr Green none of this appears to make any sense.


    It did appear at the time of Mr Johnson’s last minute deal last October with Mr Varadkar, that in his (Johnson’s) desperation to get a deal he was comprehensively “done over” by Varadkar and the EU. As I suspect has happened before in Mr Johnson’s life he had lied himself into a corner, so when they gave him a lifeline he took it – and if it shafted the Protestant community in NI, well that was a small price to pay.

    So part of this nonsense is about trying to extricate himself from the mess he got himself and us into last year.

    But the deeper “game” here I suspect is that underneath it all Johnson wants a “no-deal”. He was perfectly happy to prorogue parliament into no deal last year and is manouvering to do it again, but if at all possible he wants to pin the blame on the EU.

    I would be pretty sure he didn’t expect the uproar within his own party that he has caused, but then his team are just too clever to have to explain what they are doing.

    Dear heavens Johnson is a complete shyster. God knows how much further damage he will do to us.

    1. That certainly seems to be the long and the short of it – although it is surprising (to me, at least) how little recognised this is within the UK.

      One of my favourite stories is a lady recounting how, after the ‘Titanic’ hit the iceberg, a stoker emerged from below bloody, injured and in state of near-collapse. He screamed that the ship was going to ‘sink like stone’ and then fainted. The onlookers tut-tutted and murmured to each other ‘didn’t he know this ship is unsinkable’. As you know, few women and children could be persuaded to enter the first few lifeboats that were subseequently launched.

      Mr Green is doing a great job of abrading that denial!

  15. Fintan O Toole’s piece on this week’s political developments ends with the conclusion: “Brexit is a promise that was made to be broken because the best of all worlds the voters were offered in 2016 was always a mirage. But that breach has grown and widened over time. It is now an open chasm in British democracy.” (10 September 2020, Irish Times/The Guardian).

    Mr O Toole’s diagnosis of the situation is correct. The “open chasm in British democracy” stems from the misleading Vote Leave campaign in 2016. Link below to the fifth article in a series published in the New Law Journal between 2017 and 2020. The NLJ articles track the Brexit process and explain how the Vote Leave slogan “We send the EU £350m a week, Let’s fund the NHS instead.” amounts to a treason felony. During 2016 to 2019 MPS, unable to deliver the false promise of Brexit without committing economic or political suicide were “overawed” for the purposes of section 3 of the Treason Felony Act 1848:

    On a policy level, language, and thus the ability to provide a rational explanation, have been abandoned by the present administration. A further confrontation with the EU must be engineered to deflect responsibility and shift blame. Johnson, Gove and Cummings seek the “Heroic Failure” that Mr O Toole has described in his book. Whatever the outcome of this potential constitutional crisis, things have already become ugly.

  16. Thanks for write up. Interested to know at what point in time would the UK be in breach of the withdrawal agreement.

    – The moment the Internal Market (IMB) is published
    – The moment the IMB is enacted.
    -The moment the regulation, that potentially breaches the WD, enabled by art 43 of Internal Market Act is enacted.
    -The moment that such a regulation is executed.

    I am trying to distinguish between the bill itself and the actions it enables and at what point actions become unlawful.

    1. The legal breach would happen the moment S43 of the Internal Market Act is enacted by way of regulations (Statutory Instruments (SIs)) made by the relevant Secretary of State.

      However, it appears the EU could refer the matter to the European Court of Justice as a prima facie breach of the Treaty as soon as the Bill itself is enacted (ignoring the fact that all other provisions would presumably not have effect at that time, since no SIs would be made). This is because it demonstrates the UK’s intent to breach the Treaty simply by being enacted, even though the relevant sections aren’t in force yet.

      An inchoate criminal offence is still (usually) a criminal offence. It would seem that, as a matter of international custom and practice, an inchoate breach is still a breach.

      1. Thanks for the response. Clearly any of this shows bad faith. Your reference to criminal law is interesting. Naively I guess a treaty is like a contract. So publishing the bill suggests inchoate breach of contract. Any suggestion as to a book/Web page that a lay (but logical) person could read to understand this and words/phrases like unlawful (vs illegal), inchoate, bad faith etc ? Any response much appreciated. Thanks

        1. Publishing the bill is evidence of the UK’s bad faith in this matter, but I don’t know that it would count as a breach of the Treaty since it’s not actually law at that point, merely the expression of the potential intent to make it law.

          I suppose you could call it a “breach of contract”, yes, but it would be entirely distinct from the usual law of contract we’re familiar with: businesses suing each other, and so on. This is purely a matter of international law, where typically nobody can force another party to adhere to a given Treaty or enforce a legal punishment, offended parties rely on soft power (diplomacy) and things like economic sanctions.

          In this case, the European Court of Justice can impose various legal punishments because that was expressly written into the Treaty, but the UK could quite freely ignore any punishment (subject to the political and economic ramifications of nobody wanting to trade with us, etc!) and that would be that.

          When the Bill actually becomes law is when, arguably, a breach happens. At least the European Commission would have sufficient grounds to argue that at the European Court of Justice.

          The best resource I can think of would be a legal dictionary, such as the Oxford Dictionary of Law which can be accessed at

          Unlawful – something may be a breach of the law without being a criminal offence. It is unlawful for the Prime Minister to prorogue Parliament in certain circumstances, but that doesn’t make it illegal (a criminal offence).

          Illegal – the thing being done is a criminal offence. Some lawyers use “illegal” interchangeably with “unlawful”, but I don’t like that approach myself.

          Inchoate – an “unformed” offence. In other words, an attempt. Attempted murder is an inchoate offence. The person didn’t succeed in murdering the victim, but they attempted to do so.

          Bad faith – I suppose the best equivalent term here would be something like “acting duplicitiously”, doing something that you know you’re never going to stick to and in some way damage or injure the other party/ies you’re dealing with.

    2. Ianal, but I suspect the provisions are deliberately calibrated and as non-specific as possible (in stark contrast the Brandon Lewis’ assertion at the Dispatch Box) as carefully as the drafters are capable to push any material breach as far down the chain as possible.

      “Look, they won’t concede to our demands *and we haven’t even done anything wrong”!”

      The trapeze artist performing without a safety-net doesn’t actually break her back until she hits the floor, and in today’s ultra-tribalised polity there are plenty who will argue that none of rigging the trapeze without a net, climbing the ladder, performing the act itself, nor even the missed catch are to be regarded unequivocally as the proximate cause.
      Nonetheless, if your business is insuring circuses (or safety-certification) then it would be patently foolish to grant any policy once you have merely seen the poster advertising the act with no safety-net.

      However, looked at from beyond the parochial perspective of playing to the domestic crowds, of the crowing headlines in the ‘Daily Telegraph’, does it really matter at all?

      Would you be at all keen to become further entangled with the affairs of a potential business who gleefully announces that he habitually rips off his business associates in any way possible, but usually gets away with it because he has a smart lawyer who is expert at exploiting abstruse technicalities to get him off the hook? Or would you by trying to extricate yourself from any involvement as urgently as possible?

      The passage or otherwise of this bill and the minutiae of its implications may well provide un-asked-for fun in the sun for constitutional lawyers, but I’m more worried about the consequences of the mere facts of what it has announced as the intentions of Government policy, and the solid confirmation of such provided by the official apparatus deployed in its defence.
      It strikes me as a historically significant act of gross irresponsibility, and I really don’t see any way to undo the resulting damage.

  17. It’s absurd, of course, to describe this Government as fascist. Nevertheless, its contempt for law, for Parliament (unlawfully prorogued + unprecedentedly wide ranging criminal law promulgated by Regs with no Pltry scrutiny), for the rule of law (Supreme Court = Enemies of the people’ and now this Bill), for the civil service, its ultra nationalist rhetoric, war-based nationalsit nostalgia, encouragement of xenophobia, protectionism, and delight in transgressing accepted norms together justify calling it proto-fascist. We are being warned.

    1. But, apart from that, how are you enjoying the play?

      Seriously, though, we’ve been being warned for a good few years! How long does the protean stage run, with the full gamut of symptoms you describe and more —the urge to state support for favoured industrial champions (particularly of industries whose products can help control populations) is very typical— before you begin to suspect that it has metastasised into something worse?
      Especially in the case of such an infantile disorder which is rather famous for populations waking up one morning to find that it is too late to do anything about it!

  18. Really interesting reading, thank you.

    I do have some observations/questions and here’s an opportunity to ask them (with no expectations). To assure you, I have read what you’ve written, but not-a-lawyer-etc … so apologies if some/all are straight up daft.

    1. It seems very important to the Government that Parliament pass this bill in the full knowledge of breach of international law. There have been all kinds of variable around this, but that one is constant.

    2. It seems to me that the clause changes the nature of what a Minister of the Crown actually is. The reference to UK domestic law, as well as international law, seems not to be about the country/the Government’s legal position, but that of the individuals who are Ministers of the Crown and their legal protection. Johnson would have breached the Benn Act had it not placed him in personal legal jeopardy: is this not the ‘natural’ evolution of being previously thwarted?

    3. As a country, if we breach international law, it the country that faces consequences (such as sanctions from other nations). That is still true should Ministers do so with the powers in this bill: the country faces the consequences, but Ministers (through their actions) cannot be held to account through UK law should it pass.

    4. Dominic Grieve said today ‘there is no precedent’ for the powers in this bill. Is the point that this bill when passed creates the legal precedent? Like Ministers supplying their own demand? As the Grinch with his dog Max when he intended to steal Christmas: ‘if I can’t find a reindeer, I’ll make one instead’?

    5. Should this clause pass into law, is it likely to become standard? The Henry VIII powers on first outing met the Grieve amendment, but we’ve certainly seen them get an airing on subsequent bills where they’ve remained untouched.

    6. With respect the NI protocol, are Ministers enabled to breach eg. the GFA, the ECHR that it is predicated on (international treaties), the devolution settlement for NI, HRA, misconduct in public office (domestic law), as well as the EWA/treaty with 27 sovereign nations that Johnson signed post-election in which the protocol sits?

    7. If this bill passes exempting Ministers from international/domestic law on ‘this one occasion’ does it render the part about obeying the law in the Ministerial Code redundant because Ministers don’t always have to? Might we get a rewrite of said code?

    8. The AG stated that the Cabinet Secretary ‘ruled’ that the Ministerial Code would not be breached. The Ministerial Code says that the Cabinet Secretary has no role and it is for the PM to decide. Why bring him into this as a defence? Can he be described as the second Gatekeeper, as per your Part II? I suppose he could resign, but it’s seemingly ‘not his job’.

    ‘Asked if she believed ministers were breaking the ministerial code with the legislation, Braverman on Saturday dodged the question by stating that the code was not legally enforceable. Pressed, she suggested the cabinet secretary had ruled that the code would not be breached’ –

    ‘ 1.4 It is not the role of the Cabinet Secretary or other officials
    to enforce the Code. If there is an allegation about a breach of
    the Code, and the Prime Minister, having consulted the Cabinet
    Secretary, feels that it warrants further investigation, he may
    ask the Cabinet Office to investigate the facts of the case
    and/or refer the matter to the independent adviser on Ministers’
    interests’ –

    9. The AG’s ‘statement’ is just weird. The errors and discrepencies suggest it wasn’t proof read. In fact, it gives the impression of having been originally an argument (same logic) for ditching the May deal NI protocol – in the event it passed and a new PM (Johnson) wished to ditch it – then had the text rather carelessly updated. It even refers to 2018 and certainly Mr Gove was saying a future Government could ‘change the deal’ as he was making the case in 2018 that May’s deal should be supported.

    I do find the nature of this bill concerning and there are few enough constraints on the executive at present: Parliament seems to tend towards voting itself redundant. How exactly are any of us represented in what is a representative Parliamentary democracy if a majority of MPs are willing to vote their opportunties to represent their constituents away? Regardless, very much enjoy reading your work, if not so much the implications of what you write.

    *** On another topic, I’m a bit of a folktale enthusiast myself and (you may be aware of this, but) there is fantastic database of folktales (catagorised and from around the world) on the Pittsburgh University website you might like:

    The Emperor’s New Clothes has fantastic versions in India and Turkey amongst others:

    As a category, it is related to the Doctor-Know-It-All type, one of which follows with no further comment!

    ‘A very unskillful cobbler, finding himself unable to make a living at his trade, gave up mending boots and took to doctoring instead. He gave out that he had the secret of a universal antidote against all poisons, and acquired no small reputation, thanks to his talent for puffing himself.

    One day, however, he fell very ill; and the king of the country bethought him that he would test the value of his remedy. Calling, therefore, for a cup, he poured out a dose of the antidote, and, under pretense of mixing poison with it, added a little water, and commanded him to drink it.

    Terrified by the fear of being poisoned, the cobbler confessed that he knew nothing about medicine, and that his antidote was worthless.

    Then the king summoned his subjects and address them as follows: “What folly could be greater than yours? Here is this cobbler to whom no one will send his boots to be mended, and yet you have not hesitated to entrust him with your lives!’

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