10th June 2022
Yesterday’s post was very popular.
It was not published until the evening, and it already has had over 20,000 hits.
And it has been promoted by a former Irish ambassador to the United Kingdom and the European Union, one of Ireland’s leading journalists, and a Conservative former Lord Chancellor – as well as by the reporters and member of parliament whose work I used for the post.
Thank you to all of you who read and shared the post, and a special thank you to those of you whose support means I can free up time to put together posts like that (which in that instance took three days).
Here is a follow-up to the post which has come out from the subsequent discussion.
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It would appear that one function of the Eadie ‘advice‘ is so ministers can try to convince unsure backbenchers.
This possibility has been put forward by the Conservative former Lord Chancellor I mentioned, David Gauke:
Very good piece from @davidallengreen on the Govt's curious approach to the advice of Sir James Eadie QC on the Northern Ireland Protocol legislation. One point to add is that the Govt has been telling MPs that Eadie had signed off the Bill (see https://t.co/EdAJXANdQN). https://t.co/Z9O7Kx7YAM
— David Gauke (@DavidGauke) June 10, 2022
Gauke here links to his recent New Statesman piece – which you should read – where the relevant sentence is:
“The sidelining of Eadie is highly irregular, especially as some MPs had previously been reassured that Eadie had opined on the legislation (he has, but not on the international law aspects).”
This is significant in two ways.
First, the government is now reduced to lying to its own backbenchers.
And second, if this is correct then it also means that government backbenchers simply do not trust the Attorney General to be getting the law right, and want the comfort of a further opinion.
If so, this shows the further fall in the credibility of the Attorney General.
You will recall that during the Brexit debates, the then Attorney General Geoffrey Cox – a successful barrister – took a leading role in seeking to convince backbenchers about the legality of the then proposed deal:
That legal advice was later published.
We now know that this advice was not enough to convince enough backbenchers to support then Prime Minister Theresa May’s deal.
But the point is that members of parliament did not then question the credibility of the Attorney General in being the source of legal advice, just that they did not like the import of what he and May were saying.
The current Attorney General has had less of an opportunity to develop a career in private practice and so is a far more junior lawyer than Cox.
And although she is understood to have commissioned advice from public international lawyers (lawyers who specialise in treaties and other international agreements), the fact that she is advising that the proposals are legal carries little or no weight with government members of parliament.
So, if Gauke is correct, there has been a decline – perhaps a collapse – in how seriously the office of Attorney General is regarded politically.
And so members of parliament are having to be assured that the Treasury Devil is also on side:
Don't think they'd have shown the Eadie advice to backbenchers (which would've raised lots of questions). More "don't worry, Eadie's looked at it" (which is the truth but not the whole truth).
— David Gauke (@DavidGauke) June 10, 2022
This may explain the possible compromise I mentioned yesterday, where Eadie was asked to give an advice based on assumptions that the advice commissioned by the Attorney General was correct.
The backbenchers would then presumably not be told about the assumptions.
The Devil’s name would be being taken in vain.
And so the leak of the actual advice, which showed Eadie’s doubts about the validity of the Attorney-General’s advice, undermined this underhanded ploy.
The cover was blown from the legal cover.
It would therefore appear that the government was seeking to mislead its very own backbenchers over the legality of the proposals for the Northern Irish Protocol.
That is an extraordinary situation for the government to be getting into, and it does not bode well for the legal robustness of what is being proposed.
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Comments Policy
This blog enjoys a high standard of comments, many of which are better and more interesting than the posts.
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Maybe, just maybe, the next leader of the Conservative party will take a leaf out of this leaders book and remove the whip all those on the far right who do not approve of One Nation Conservatism.
Johnson’s appointment of those like Braverman, clearly unfit for the AG position due to lack of experience and servility rather than independence of mind is at root of the current mess. Yet one more reason to get rid of him.
This post is essential reading for all backbench Tory MPs.
I have directed my MP to your comment along with a link to this and the previous related post and the comment,
“Apparently you are having to vote on stuff without access to the full
banana.”
Eloquence would be wasted.
Does anyone from the legal profession who is involved in the government take a moment to consider how repeated disregard for the law and the constitution reflects on their professional ethics?
As I understand it (IANAL), their professional ethics require them to give honest and competent advice to their client. If that client, whether from stupidity or dishonesty, chooses to ignore or misrepresent that advice, has no bearing on their obligations.
I had a question about the general principle the Attorney General seems to cite – that if one party takes a ‘disproportionate and unreasonable’ implementation or interpretation of the treaty, this is grounds to unilaterally amend or ignore the treaty. Regardless of whether the EU has done that – I can’t see how it has – does this have any precedent? What recourse is there if one party genuinely does interpret a treaty in a way that is manifestly against its ‘spirit’, such as putting in border controls so strict that make trade effectively impossible, or is there no such thing.
Then the other party can simply act on its own more reasonable interpretation of the treaty, confident that it would be likely to win any ensuing dispute if the first party’s interpretation is really as wrong as it claims. It is only a material breach of the treaty that entitles the other party to terminate it or take some less drastic retaliatory action, but HMG has not asserted that the EU is in breach of the Protocol, as far as I am aware. More or less the same silly game was played with the Internal Markets Bill before it was sensibly abandoned.
The agreement does contain a provision that talks about what happens if there is disagreement about implementation (article 16).
If have understood correctly (I am not a lawyer!) the government should simply follow the steps in the agreement they negotiated if they believe the EU is not behaving fairly – but they have decided not to do so.
No doubt someone will be along to correct me shortly!
They must really love you, David (both Davids, actually, in this case).
Thank you.
If I understand correctly ( hopefully I don’t and get corrected for free by a top drawer lawyer – I love this blog :), there are two things in this, and one of them is much more pressing than the other.
1. There is evidence of a government conspiracy to mislead parliament
2. The cabinet is conspiring to cause an international dispute with our allies that it knows will place it in the dock in Europe with a case it can’t win
If the first is true ( is there another way to explain the facts? ) it seems to require a mass resignation and its hard to understand how that doesn’t precipitate a general election.
That’s seriously pressing because calling it out could obviate the need to consider the unthinkable. It looks like Boris Johnsons government is trying to ‘troll’ Europe (when they happen to have a war on their doorstep) by breaking a law it knows Europe has every legal right to enforce in the Irish Sea. Party political gain is the only plausible motive for engineering more political mayhem over a partition experiment we enforced that already carries an unpayable outstanding debt in Irish blood.
That looks a bit like treason.
I’m no lawyer and wouldn’t dream of actually accusing anyone of crimes against the Crown. I’m just saying what it looks like to a layperson who thinks they must surely be mistaken.
“..I’m no lawyer and wouldn’t dream of actually accusing anyone of crimes against the Crown. I’m just saying what it looks like to a layperson who thinks they must surely be mistaken…”
One of the challenges that blog writers/readers & good old newspaper hacks face is the glaring reality that we were not privy to any/many of the conversations being dissected here, instead we’re relying on second hand information albeit by some uigjl6
REPLY
whoops finger trouble on mobile. 🫣
we’re relying on second hand information albeit by highly capable ( with an axe to grind) people.
The danger then is that what is reported to have happened could actually be a cockup , conspiracy or duplicitous.
It’s not apparent to me that anyone ( apart from the key actors) can confirm or deny what was said ( or advised) at the relevant meetings.
Looking forward to Monday, when its been reported ( even triangulated) that the bill will be published.
Indeed. Blessed be the publishers of professionally informed commentary.
My point is – how do we ( all of us, outside of the meetings) know that what (we) is published is informed albeit it looks and sounds professional?.
Just apply the ‘he would say that’ test ( per David Gawke) given his belief system. It’s a bit like heresay & scuttlebutt in court – show me the evidence shouts the judge.
A statistician or physicist would tell us that in reality quantities of zero or one are seldom attained, as opposed to serving as limiting values to be indefinitely approached. So it seems with this government: whenever one thinks rock bottom of competence or integrity has at least been reached the next day’s news (or as likely, blog) will refute this.
I feel sad for Tory friends, left marooned with what they thought were the party’s k principles.
It’s all further evidence, if that were needed, that the current Attorney-General puts politics before the law. Could the Bar Council sanction her for this?
David, you refer to Geoffrey Cox ‘s letter of advice on the protocol and say that “it was not enough to convince enough backbenchers to support, then Prime Minister, Theresa May’s deal,” which implies that it supported the Prime Minister. But surely that was not the case. A crucial issue for the ERG was whether the UK could be permanently locked into the protocol. Cox drew attention to the obligation on the parties, in Article 2.1 of the draft agreement, to negotiate a further agreement which would supersede the protocol but he was very clear that if such an agreement was not reached then the protocol would subsist and the UK would remain locked into the Customs Union. This was very unwelcome advice for Theresa May and was a major factor in the rejection of her deal.
One can readily see why Mr Johnson would not have wanted to keep as A-G a barrister who would be prepared to speak truth to power in this way.
I fear the failure of this Government to get the balance between the proper use of its lawyers and political expediency is endemic.
There is a judicial review currently before the High Court of Northern Ireland over Edwin Poot’s order (this February) to stop all SPS checks between GB-NI.
Last month his Counsel raised an ambitious argument that there is a lacuna in the Protocol which means, on its true construction, it required SPS checks to be undertaken on the border between NI and Ireland (not between GB and NI). Its ambitious because under EU law statutory construction is very rarely about ‘loop-holes’ and all about purpose and intent.
The UK Government was invited to come to Court today to intervene and put its arguments to address this argument. Instead we are told its lawyers said that the Government was not in a position to dispute Mr Poot’s submissions. That is not, as some quarters have reported it, a capitulation to some devastating Protocol smashing argument. Nor even is it the acceptance that this is a thorny issue that will take some real head scratching to get on top of: because it isn’t and anyway if it was it has to be referred to the CJEU to decide. It is lawyer-speak for “we can’t get our client [the UK Government] to give us instructions to explain why the argument is wrong…today”.
Why not today? Because, it is convenient for the UK Government on the Friday before their new NIP busting bill, to be giving oxygen to the idea that there is a fundamental flaw in the drafting of the NIP: even though there isn’t. Conversely, it would be inconvenient, in terms of its relationship with the Unionist and Loyalist community, to be arguing for the NIP today.
It should go without saying that the conduct of litigation by government should not be primarily driven by how it plays in Westminster or the Short Strand but by how they can best assist the Court in interpreting the treaties the Government entered into.
We should not be surprised. This administration has no principles. Honesty and integrity are strangers to them. But there must come a point when the institutions become so eroded that the rubicon is crossed. Sadly, the electorate probably don’t notice this slow drip drip drip erosion – and won’t until it is too late. “You don’t miss what you’ve got till it’s gone”. One can only hope that a GE with a Lab/LibDem coalition these institutions can be reinstated and wholesale root and branch constitutional reform can be undertaken. we are slipping into a Ruritanian laughing stock in which democracy is a chimera.
There is a mechanism within the Treaty to resolve disputes relating to its terms.
The circumstances in which one party to the treaty legislates to: (1) circumvent or unilaterally alter one part of the treaty and (2) ignore the dispute resolution mechanism to which it agreed when signing the treaty, suggests either those recommending the treaty’s terms and/or the individual who signed it on the UK’s behalf did not understand its terms.
I think this suggests that those in the EU who were party to drafting the terms of the treaty had the foresight to see that Johnson might not be negotiating in good faith.
I wonder whether I might use the government’s tactics in another field.
For example, I might be in need of expert advice from an eminent veterinarian – on the state of health of my parrot, for the purpose of obtaining insurance on his life.
I could obtain the advice and then misrepresent it to my insurers. For example, wherever it says dead, I could add the word not.
That way, I would be able to obtain the necessary approval.
I think you’d have to shop around for worse vets until you find one who misses the nails in the perch. Then you get a better one to make comments about the parrot without referring to its mortal status.
There is a point when it really is simpler and cheaper to accept one is better off with a new parrot.
As a final step, you give Michael Palin a peerage, in exchange for him repeatedly claiming that the parrot is not, in fact, dead, merely pining for the fjords.
When this all blows up, as it should, will we find ourselves referring to it as “Devilgate”?
I can see no drive for that.
I see nothing wrong in any Attorney General seeking expert legal opinion from sources outside government
BUT
the concluded opinion has to be clearly that of the AG.
(I wish Lord Goldsmith had consulted international law experts over the legality of the Iraq military engagement. There were plenty of them at the Bar and in UK universities to ask.)
Do you think Eadie suspected his advice might be used inappropriately by Bravermann, and so put in a “spoiler” comment that meant you could see he had reservations about how his advice was commissioned just by looking at the advice alone, even without knowing full context,
I ask, as I’ve done the same in the past when I’ve had a client who I suspected might try and use advice inappropriately without proper explanation.
The difference here, of course, is that the client is the county’s own Attorney General!?!
Sir David Eadie QC is too long in the tooth to make comments like the one leaked without knowing precisely the effect they would have. Did he deliberately ‘poison pill ” his Opinion (if the quote is accurate)?
*James
Sir David Eady was the libel judge
Oops. Yes, James.
Or should the government remember that you need to have a long spoon if you’re going to sup with the Devil?
I enjoyed the taking the Devil’s name in vain reference a little bit too much.
These two posts are among the finest you have ever written, Mr. Green.
On the basis that it appears as if this government simply rejects any laws, rules, agreements, or conventions it finds irksome or difficult,
even when it was their goodselves who negotiated & signed them off,
will Mrs Sturgeon be getting similar legal advice,
that if Westminster refuses to grant leave for IndyRef2,
she should invoke the ‘Bozo the LIAR’ protocols
& simply ignore the law,
because it’s inconvenient.?
Reasons for amending legislation:-
1. The original bill had not anticipated a new set of circumstances which emerge, requiring the original wording to be patched to cover the new circumstances. (Bad example – the introduction of e-bikes and e-scooters created a class of motorised vehicle not previously anticipated by existing road/transport legislation).
2. A new and peripherally related piece of legislation is being introduced that would otherwise create a conflict with the instant material. A decision is made to revise the standing law in order to enable the new legislation to be implemented more completely.
3. The Minister responsible for the new legislation is treating it as a vanity project and wants their name/fingerprints over the statute books in perpetuity, because, yes, they really are that conceited.
4. For one or more reasons that the government of the day is unwilling to disclose.
When William Pitt the Younger introduced Income Tax in December 1798, the “marketing” (propaganda) in support of the tax argued that it was only really going to be paid by the very, very wealthy. A little over 200 years later and those on the lowest income scales pay the highest proportion of tax in the country – with millionaires paying an average of 10% income tax thanks to loopholes.
Or how about the Terrorism Act of 2000, which introduced the concept of “special zones”, to allow the police to designate areas in which the police could stop and search – and detain – people without suspicion. It was argued at the bill’s reading that it would only be used as a *necessary and proportionate* response to extraordinary threats presented by active terrorist cells. Within days of the act being passed, however, the entirety of Greater London was designated a special zone – and it remained that way on a rolling basis – with the public being none the wiser. (See Shami Chakrabarti’s excellent book, “On Liberty” for more details).
In short, unless the government can show a plain and simple defect in the current Human Rights framework, then we should all be both suspicious and concerned.
It’s worth noting that where the UK has run in to difficulties in this area of the law it has been in cases where the government (police, security services, authorities) have over-stepped their authority and treated private citizens in extreme and unreasonable ways – and as a result come up against the ECHR. *Any* move to dilute the effectiveness of those protections should be vigorously resisted.
And as we learned thanks to William Pitt the Younger, something “innocuous” when it is introduced today can be successively tweaked, parliament by parliament, until it is completely different from the version that gets all the scrutiny. Assuming the original isn’t an out-and-out travesty, of course.