9th June 2022
Something odd – and worrying – is happening.
Of course, there are always odd and worrying things happening – increasingly in the area of law and policy.
But this is a rather odd and very worrying thing.
It is the curious incident of the government’s legal advice on its forthcoming proposal for the Northern Irish Protocol.
But to understand why what is happening is just so very odd and very worrying, we need to go back in time and also to understand how legal advice works in government.
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The current government of the United Kingdom does not like the Northern Irish Protocol of the Brexit withdrawal agreement.
This is itself odd, as it is the same government, with the very same Prime Minister, that changed the previous policy on this, negotiated and signed the agreement, sought and obtained a general election mandate for the agreement, and pushed it through into domestic legislation.
The current government, and our Prime Minister Boris Johnson, could not have done more to go from scratch in putting the Northern Irish Protocol in place.
But they have come now to regret this once “oven-ready” agreement.
And they would like it to change.
The problem, of course, is that it takes all parties to an agreement to change an agreement – and the counter-party here is the European Union, and it does not want to change the agreement.
So what is the United Kingdom government to do?
*
The government tried – remarkably – to break the law,
It is astonishing to type this, and it should be astonishing for you to read this, but that is what the government sought to do, openly and expressly.
The breach was framed – you may remember – as breaking law “in a very specific and limited way”.
The Advocate General – a government law officer – resigned, as did the government’s own most senior legal official, the Treasury Solicitor.
They were right to do so – it was an extraordinary and preposterous thing for the government to do: an outrage, constitutionally and otherwise.
The government did not go ahead with this ploy.
The government learned its lesson.
The lesson was never to openly and expressly state that you were intending to break the law, either “in a very specific and limited way” or otherwise.
*
Since that botched approach the government has been very careful to say that what it is proposing does not break the law.
What the government actually wants to do, in substance, has not changed.
But now it wants to have legal cover for what it wants to do: to be able to say that a thing is lawful and not unlawful.
And under that cover, you can see through the fabric ever more desperate contortions and distortions.
Within the government there will be those insisting that there has to be “sign off” on the legalities of what is being proposed.
It is similar in this way to the attempts within government to get legal cover for the Iraq invasion, which led to the resignation of the senior government lawyer Elizabeth Wilmshurst – her resignation letter is here.
You may recall how the legal advice within government was then being chopped and changed until the advice was what the then Prime Minister Tony Blair and Foreign Secretary Jack Straw were happy with and also satisfied service chiefs and senior civil servants who wanted legal sign-off.
What happened behind the scenes came out at the Iraq Inquiry:
The Chilcot Inquiry concluded that the “circumstances in which it was ultimately decided that there was a legal basis for UK participation were far from satisfactory”.
You will see from the BBC report above, the government was shopping around for the legal advice that it wanted – because it did not like the advice of the responsible government lawyer.
In the end the then Attorney-General Lord Goldsmith managed to provide (that is, concoct) the advice the government wanted, instead of the advice of the relevant government lawyer.
And although that was a Labour government, as opposed to the current Conservative government, there was an important lesson learned and committed to institutional memory.
The lesson learned was that it is better not to shop around for new, alternative advice if you can say that you have not had adverse advice in the first place.
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Now let me introduce you to the Devil.
That is, the “Treasury Devil” – the nickname for First Treasury Counsel.
The late great legal blogger (and, ahem, former appeals judge) Sir Henry Brooke did this fine post on this role – which you should now click on and read.
In essence, the Treasury Devil is an external senior barrister who is activated when the government has a Really Serious Legal Problem.
Usually, this means going to court to represent the government in the most difficult and serious legal challenges.
Or it can mean advising in advance when a difficult and serious legal challenge is foreseeable.
The Treasury Devil is the legal cross between Winston Wolf and Mycroft Holmes.
He or she solves the government’s trickiest legal problems, or sits there and advises the government how best to deal with those problems in advance.
Some of the greatest judges were once Treasury Devils: Lord Slynn, Lord Woolf and Sir John Laws, as well as one member of the current Supreme Court, Lord Sales.
(I happen to be a former government lawyer, and I know of one instance where an impending legal problem was put before the Treasury Devil well before there was any litigation.)
Referring such a matter to the Treasury Devil is not routine – it is exceptional.
But it is a thing (despite what some other commentators asserted).
Indeed, when it is as plain as a pikestaff that something important will be challenged – perhaps all the way to the Supreme Court – then it is a very prudent thing.
That sometimes the Devil will be consulted on potential legislation has been affirmed by a well-regarded expert on legislation:
The current Treasury Devil is Sir James Eadie.
And you can see some of this Devil’s handiwork here.
*
Now, back to the Northern Irish Protocol.
Recently, a post on this blog set out an interesting shift in rhetoric from the current Foreign Secretary:
The Foreign Secretary had said:
“That is why I am announcing our intention to introduce legislation in the coming weeks to make changes to the Protocol.
“Our preference remains a negotiated solution with the EU.
“In parallel with the legislation being introduced, we remain open to further talks if we can achieve the same outcome through negotiated settlement. […]
“The Government is clear that proceeding with the Bill is consistent with our obligations in international law – and in support of our prior obligations in the Belfast Good Friday Agreement.”
In other words, the government was now to ‘comply’ with international law.
Applying the first of the lessons set out above, the government was now going to be lawful, not unlawful.
They had found a way to call what they wanted to do lawful.
The source of this advice?
This was revealed by the Times:
The Times reported:
“The attorney-general has approved the scrapping of large parts of the Northern Ireland Brexit deal amid mounting cabinet divisions over the plan, The Times has been told.
“Suella Braverman has advised that legislation to override the Northern Ireland protocol would be legal because the EU’s implementation of it is “disproportionate and unreasonable”.
“In evidence accompanying her findings, Braverman says that the EU is undermining the Good Friday agreement by creating a trade barrier in the Irish Sea and fuelling civil unrest.
“Her submission argues that the agreement has “primordial significance” and is more important than the protocol. “There’s mountains of evidence that there’s a trade barrier down the middle of our country,” said a government source. “Suella has argued that trade is being diverted.”
“Her submission also details “societal unrest” and cites hoax bomb attacks, including one targeting Simon Coveney, the Irish foreign minister. “There are increasing signs of violence in Northern Ireland,” the source said. “That can’t be allowed to carry on.”
Suella Braverman, the Lord Goldsmith of her generation, had found a way.
Some of the vocabulary in the Times report is not strictly accurate – what is being described is reasoning and advice, not evidence or submissions – but it would appear that the newspaper had sight of the advice.
Internal, legally privileged advice had been leaked.
The desired legal advice was now in place, and the government could now do what it wanted to do anyway with the Northern Irish Protocol.
*
But.
There was one thing which could ruin this exercise in political and legal expediency.
Applying the second lesson set out above, the government needed this to be the only legal advice in town.
Whitehall was not going to be big enough for more than one advice, given the speed with which the government wanted to proceed.
A second opinion – usually helpful – would be most unhelpful to the government.
There would not be enough time to do what Goldsmith had once managed to do with the unwelcome foreign office advice.
Like the final scenes of a situation comedy, those in government would be desperate that somebody else was not asked certain questions.
*
Now we come to this week’s news.
Again internal government legal correspondence and advice has somehow found itself into the public domain.
More internal, legally privileged advice had been leaked.
.@politicshome understands, as @SamCoatesSky reports, that First Treasury Counsel James Eadie was *not* consulted by government on the legality of the Protocol legislation
Eadie would be expected to be asked for his opinion on such a high-profile & consequential bill – v unusual
— Adam Payne (@adampayne26) June 7, 2022
Payne (a fine political journalist but not a legal specialist) may not be entirely correct here – for as set out above, the Devil is not consulted routinely on legislation.
But if something big was afoot, it would not be unusual for somebody somewhere in senior government to suggest that this is a matter for First Treasury Counsel.
Especially as Eadie had acted in much of the relevant litigation to date and would be expected to act in court as and when the new proposals were challenged.
Payne’s news report at Politics Home is as follows:
“Correspondence seen by PoliticsHome has cast doubt over the government’s argument that its plan to override parts of the post-Brexit treaty without an agreement with the European Union would not breach international law.
[…]
“The government insists that this would not break international law. Suella Braverman, the attorney general, approved the plan having concluded that it was legal, The Times reported last month. When unveiling the plan to parliament, Foreign Secretary Liz Truss said “we are very clear that this is legal in international law and we will be setting out our legal position in due course”.
“But in the leaked correspondence, a senior figure advising the government on legal matters says they hold the view that it cannot be “credibly” argued on legal grounds there is currently no alternative to unilaterally disapplying the treaty, and that it is “very difficult” for the ministers to make that case.
“They add they find that position “more convincing” than the view put forward by Braverman and others that the government was on solid legal footing in pursuing unilateral steps.”
*
Sam Coates, another fine political journalist, reported at Sky:
“…Sky News is told that the First Treasury Counsel, the government’s independent barrister on nationally important legal issues, has not been consulted on the question of whether the plans to overhaul the Northern Ireland Protocol will break international law.
“He is nevertheless understood to have indicated he believes it will be very hard for the UK to argue it is not breaching international law if it goes ahead with some of the moves under consideration.”
“Last night Sky News reported that the First Treasury Counsel, the government’s independent barrister on nationally important legal issues, was not asked to give his opinion on whether imminent plans to overhaul the Northern Ireland Protocol would break international law.
“Sir James Eadie was consulted about the forthcoming legislation.
“However – in a highly unusual and possibly unprecedented move – he was asked not to give a specific legal opinion on whether the plan would breach international law.
“For the first time we can set out in detail what Sir James said.
“Eadie starts by confirming that the government has received advice from an array of other lawyers about the international legal issue raised by the planned protocol legislation.
“He goes on to say that he has been asked only to “assume” there is a respectable legal basis on which to support the arguments made by the other lawyers.
“He says he is happy to comply with this request – “I do so,” he writes – but then adds “I am not asked to opine on the merits of those views”.
“Sky News understands it is extremely rare for the First Treasury Counsel not to be consulted on an issue such as this, and be directed by government to rely on the opinion of others.
“However Eadie’s agreement to do as directed – and rely on the view of other lawyers – allows the government to say he was consulted more generally and is on board with the plan.
“Inconveniently, however, he is understood to have then volunteered a view in his submission: that he found the argument of one particular lawyer advising government “considerably easier to follow and more convincing”.
“The lawyer he cites says that it would be “very difficult” for the UK to argue it is not “breaching international law”.”
*
What appears to have happened is as follows: the government got its convenient advice from the current Attorney General; somebody insisted that this still had to be referred to First Treasury Counsel; a clever compromise was reached where it would be referred to Eadie on the basis of certain assumptions, so as not to undermine the convenient legal advice; and the Devil, while accepting those assumptions, provided an unhelpful view on the merits of those assumptions.
This is hilarious.
And it is now a mess.
One significant issue here is not that the Devil was not formally consulted – it is rare for First Treasury Counsel to be involved in pending legislation.
It would not normally be a snub.
The significant point is that for Eadie’s name and position to be even mentioned in this leaked correspondence can only mean there is almighty row going on in government over the legality of these proposals.
Somebody senior internally is insisting that First Treasury Counsel be consulted, and that the Attorney General’s convenient advice cannot be accepted on the nod.
And not only has somebody senior insisted on this – they are so senior (or important) that they have partially got their way, and what looks like compromise instructions were then given for the First Treasury Counsel for advice.
We now have the extraordinary situation that there is convenient legal advice and also very serious grounds for doubting that advice (though not formally competing advice, because of the assumptions).
This is the worst of both worlds – for at least in the Goldsmith/Wood situation above, there could be and was a decision to prioritise one advice over another.
Here there is only one advice, and it is dubious – with no less than the Treasury Devil saying so.
*
And now, there has even been an urgent question in Parliament.
Also confirmed:
Urgent question from @amcarmichaelMP: "To ask the Minister for the Cabinet Office if he will make a statement on requests made to the First Treasury Counsel to assess government proposals to override the Northern Ireland Protocol."
— UK House of Commons (@HouseofCommons) June 9, 2022
The government is hiding behind a convention of legal privilege that it has already undermined by giving incomplete and inaccurate information to MPs in order to assert that its position is legal. The legal advice must be published, in full. https://t.co/E3Cs8lrbKI
— Alistair Carmichael MP (@amcarmichaelMP) June 9, 2022
The government minister said – with a straight face – that despite the several leaks in this matter, the government does not by convention usually disclose legal advice.
*
What we have are leaks of the Attorney General’s advice and leaks of the seeming compromise advice from the Treasury Devil, which casts serious and significant doubt on the Attorney General’s advice.
The supposed legal cover has, well, had its cover blown.
The government has now placed itself in a difficult position – by its own shenanigans.
It must have seemed such a good idea to get legal cover in this way – but it has now created a situation where somebody is in a position to leak legally privileged advice indicating there is an utter mess internally.
This is where a misconceived, seemingly clever way of getting legal cover gets you.
*
The true political problem here isn’t that First Treasury Counsel was not consulted in respect of the new proposals for the Northern Irish Protocol.
The problem is that the government tried to go out of its way not to consult First Treasury Counsel when somebody with sufficient clout insisted on it, and then the government only did so with “assumptions” so as to limit the scope of the advice.
And now it seems the government wants to suppress and disregard the First Treasury Counsel’s serious doubts as to legality.
This is an extraordinary situation.
When news broke about the Eadie advice, I tweeted that this was an extraordinary and potentially highly significant and worrying development.
Some wrongly took the development to which I referred to be that Eadie had not been consulted.
No.
The extraordinary and potentially highly significant and worrying development is that Eadie was involved at all, was being mentioned in internal emails as an alternative source of advice, and that we knew any of this about it.
That there are serious rows inside government, botched attempts to get legal cover, and frequent leaking of privileged advice is very worrying indeed.
Something odd is happening.
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One of your more insightful recent columns. What an “extraordinary situation”, as you say.
But.
Beyond the immediate question of what is going to happen with the NI Protocol, there are two very important concerns: 1) the reputational damage to the UK in terms of ANY international agreements (current and future), and 2) the assumption of legal supremacy by the Government, not to mention the complete absence of accountability.
Very worrying indeed.
I think the first point you raise – the potential damage to the UK’s credibility any time we try to negotiate pretty much anything with any national or international entity going forward – bears closer examination.
Firstly, because, Boris please take note, the EU are not going anywhere. There are all sorts of areas and ways that the EU could have been persuaded to show flexibility toward the UK if we had shown a willingness to negotiate and act in good faith. But if the UK continue to behave like a petulant teenager, arguing with a teacher as to why they should be excused from both doing their homework and having to sit in detention, then it should expect that teacher to learn from each experience and implement safeguards to prevent said petulant child from misbehaving any more.
Put another way, the reports we read of fresh fish being taken off trains on the continent and left to rot because they lacked paperwork will get worse instead of better. Then, when the UK’s fisherman are driven to bankruptcy and fail, Spanish trawlers will be happy to take up the slack. And on and on.
Secondly, however, because, hello, the UK is now wanting, trying and needing to sign trade agreements with other nations around the world. Treating this first deal with the EU with content is hardly going to reassure potential future training partners that we are trustworthy – and if we do manage to find someone willing to enter in to an agreement, then the guarantees we’ll need to provide [translation: the ongoing disadvantages to UK plc through the deal] will be eye-watering.
What concerns me the most is that our government continue to act as though they think they can “get away with it”.
Yet I suppose they’re right, in a sense. They have pretty much carte blanche to do as they wish… because we’ll be the ones that pay in the long term.
This is extremely important. Something I have been saying for a long time but nowhere near as eloquently. There is not a trade deal talked about, so far that looks good for us. Australia America with potential poorer food standards, and Canada, who understandaby and correctly are refusing our cheese. This is due to government completely misunderstanding how things work. Only arrogance that we would hold upper hand in trade deals against the unaccepted reality that we not on solid ground.
Fascinating.
This is so good I have finally relented and donated something!
Me too.
Thank you, David.
My only response is:
“Speechless” :(
Thank you. Not only informative, but also highly readable and enjoyable, including ther blog by Henry Brooke.
Hoist by their own petard, again.
I really enjoyed reading this piece. Thank you. Anything this “so-called” government tries to do, appears to fall apart in it’s hands. It’s quite remarkable.
The Law is thrilling in many ways and this piece is just extraordinary. The twists and turns as this government careers madly (blindly) down the rabbit hole.
What I find worrying is that Government in this country has become so riddled with divisions that confidential business has become impossible. People, either staff or ministers themselves, who must be bound by SC and DV compliance requirements to secrecy leak such sensitive matters so regularly!
People have been jailed for Insider Trading / sharing privileged information for less in private enterprises.
When this country is meant to be standing up to secretive and sinister Dictators in Russia and China who have complete control over their bureaucracy and government machinery, this utter lack of any ability of the British Government to carry out its business in reasonable confidence is the most worrying development of them all.
What else is being leaked to China or Russia?
A different question though is, when is it a leak and when is it whistleblowing? If there were a crackdown on leaks it could prevent exposure of some very worrying behaviour such as the above. I think it’s better that this is in the public now instead of during an inquiry ten years after the fact.
Actually (I’m going off in a different direction now) I think that our pattern of leaks demonstrates what makes our system better than that of China and Russia. We can interrogate our government’s actions, expose their secrets, meanwhile nobody’s going to cart Adam Payne or Sam Coates off to a gulag never to be seen again.
I think the government can still operate with confidence when what they’re doing isn’t problematic. The only leaks that are published are the ones that evidence wrongdoing or contain exceedingly objectionable material. It’s just that normal governments don’t suffer this many leaks because normal governments don’t have so much that is leak-worthy.
Hear, Hear…
Absolutely
Here, here. To think that pro-democracy activists in HK and elswhere once looked up to us for reference, makes me weep (with rage).
I think they should just give up on all this. No wise legislator in the UK (and there are some) would support this bill, and no counterparty likely to be involved (including the Govt of RofI and the CEU) would take anyone waving it around seriously. They will sit on their hands until someone more sensible turns up.
As for the AG. Well she maintains a leading position in the ranks of the incompetent in the current cabinet.
Your excellent analysis should be placed in each Government red box tomorrow morning, however I fear that given the incumbent First Lord of the Treasury’s (alleged) dislike of any briefing exceeding a single side of A4, it would neither be consumed nor comprehended.
Thank you.
That was worth the wait.
May I suggest an edit?
But if something big as afoot,
But if something as big as a Bigfoot’s foot is afoot,
Thank you for this footnote, corrected
Loved the reference in Sir Henry Brooke’s blog (last para) to Simon Brown. If it’s the same fella, I watched him in 1979 lose a case in the High Court (Mr Justice Glidewell – a disputed Welsh Office decision on a gypsy site) to an unqualified neighbour of mine, about whom the Judge said some very complimentary things. I’ll never forget that day..!
Correction – 1981, when he was the Devil…
Great stuff. I know you don’t believe in the magic of written constitutions and you have convinced to a significant extent. Yet, I cannot help thinking that hardly any country we agree to call democratic has such a weak system of checks and balances. Let’s say there is a positive correlation, though causation has not been established, between having a written constitution and relatively solid checks and balances.
Yes, the same thought was going through my mind. Is the question then whether checks and balances are “better” (definition required) applied by lawyers or the public + press, with the assumption that we have a free press?
The checks and balanced in the United States, for example, have utterly broken down. Congress is either controlled by the President or obstructionist on virtually everything. Every single judicial appointment is a hot contest. Everything right down to mask wearing in public is partly political. It’s virtually impossible in the current climate to amend the Constitution, and that will only get worse. This is not what we want.
It is what this government want though!
I think there is a very real risk that a written Constitution is not worth the [electronic] paper it is written on, if those it is supposed to ‘guide’ chose not to take that advice or enforce its articles.
Our council has a written constitution, but that has not lead on to a situation where three CEO’s have felt the need to sanction anyone for multiple breaches that have resulted in serious breaches of a taxpayer’s Human Rights.
My understanding is that a constitutional breach is not justiciable in the UK. PLEEEEEASE tell me that I am wrong!
If I recall correctly, this situation caused Braverman’s bizarre rant to Thornberry about her being embarrassed by our flag when asked about the leak.
All of these shenanigans to stop NI from being in the enviable position of being both in the EU and in the UK.
What is enviable about having many of our laws dictated, literally, by a parliament where we have representation nor scrutiny?
Laws we can neither amend nor repeal and are subject to European Union VAT and state aid rules.
You had representation and scrutiny when you were in the EU.
In a fit of xenophobic pique, you decided to exit the EU, and toss aside all that representation and scrutiny, and indeed the unique position the EU had already granted the UK of being able to opt out of legislation it did not like.
As it turns out, the other 27 members of the EU don’t need the UK as badly as the UK needs them, and indeed, the lost internal trade represented by the UK’s withdrawal has already been replaced.
At least, you can go back to using “pounds and stones” for weights and “shillings and guineas” for currency, so I guess it’s “huzzah for England!” or whatever.
To be (beyond) scrupulously fair, the CJEU has tended lately to interpret the charters and directives in very creative ways, and their decisions are final and with immediate effect. Britain has somewhat regrettably shown that it can ignore ECHR rulings it doesn’t like, but not so with CJEU. One effect of Brexit is the loss of primacy of EU law.
Please (said tearfully.). Not all of us wanted to leave the EU; those of us with more than one functioning brain cell were furiously against Brexit. Political voyeurs such as myself have deeply distrusted Johnson for years. I wish to leave the UK because of Brexit – ironically, because of Brexit, I am unable to do so.
Walker
One of the more obvious ‘ironies’, if you can call it that is, in their main campaign literature etc. not once did Vote Leave even mention the Irish border issue.
On the assumption this wasn’t an accident, they clearly didn’t have a magic solution, so the only logical alternative is, they simply chose to ignore it because they recognised the damage the issue could do to their claim of ‘taking back control’ and alleged ‘restoration of sovereignty’.
Omission is as much of a lie as one that’s overtly stated.
I don’t remember anyone mentioning it. Do you? It completely slipped the minds of the entire British populace, most of whom are ignorant of the details to be fair. This is but one example of how Northern Ireland has been utterly neglected and betrayed by Westminster. I can’t understand how there are any unionists left.
Matt
Apologies for the delay in this response.
I remember Theresa May warning it would be “inconceivable” for there not to be changes to border arrangements in the event of a ‘leave’ vote.
And there was a Blair/Major double-act in Londonderry warning of the potential threat to the sanctity of the Union of the border issue, instantly dismissed as “scaremongering” by Theresa Villiers.
I remember this ITV report https://www.youtube.com/watch?v=ePUY9nA4Ows, but that’s about it.
Apparently the non-existent threat of millions of Turks flooding into the UK deserved more of Vote Leave’s attention, than Ireland.
Philip Booker
In Johnson’s indecent haste to “Get Brexit Done” I’m not convinced that the NI border ever crossed the vast empty space where his mind should reside. He has the attention span of a snoozing gnat, and the actual complexities of government are way beyond him. If it isn’t a noisy soundbite of self-promotion, or a raw steak to throw to the ERG and the DUP, he isn’t interested.
Bitter, moi?
Might I give a slightly conrtrairian view to a well articulation blog post?
It’s still unclear to me what the government is proposing to do in respect of the NIP – a number of options exist including ripping it up, invoking Article 16 in some form, invoking some arcane article of the Vienna Convention on Treaties or something else.
Whilst appreciating the level of effort & thought that went into this thread, I do wonder if, by waiting just a few days, we’d all be on more ‘solid’ ground consequent upon the government publishing its as approach?
Just sayin’
My assumption was that, in truth, and despite his assertions to the contrary, Sir James was far from happy at being instructed to assume things that weren’t true.
“Suella Braverman, the Lord Goldsmith of her generation, had found a way.”
I understand the comparison but I fear that this is to traduce Lord `Goldsmith. He was, after all, a very fine lawyer, if put in a rather uncomfortable position at the time.
And he should have resigned on the spot.
Indeed he should have.
Excellent blog. Your analysis of the way the legal advice is being handled sounds very likely.
However, I’m still baffled-why does the Government need this legislation at all?
I thought that the power to sign treaties was a Crown prerogative.
If the Crown wants to set a treaty aside that’s that so far as domestic law is concerned?
A wiser Government would negotiate of course. I’d have thought that negotiations on the NIP would be so complex that they could go on for years or at least until boredom kicks in!
The Northern Ireland peace process is a classic example….
This treaty hasn’t just been signed; it has been enacted into domestic law by Parliament (as the terms of the treaty require). So, to violate it effectively, the UK needs Parliament to enact new laws, amending or overriding the laws it has already enacted.
And what about the 26 other Parliaments who have enshrined the Protocol in their law?
Liz Truss said “we are very clear that this is legal in international law and we will be setting out our legal position in due course”
Back in the mists of time, before the era of Miller, Cherry and Foxing Day, Jolyon was a tax barrister.
And, as a tax barrister, he wrote a rather good piece on how certain financial companies would seek the written advice of a QC on a particular tax scheme, so they could market it as legally approved, lawful, entirely above board and proper, Old Chap.
The QCs would provide the required, hopelessly optimistic advice, the company would flog the wheeze to financial advisors, who would bang in their clients’ tax returns using the scheme to HMRC and most of them would succeed. The ones which didn’t were those selected by the taxman for detailed assessment – and those clients would consequently be buggered.
I detect echoes of something similar going on here.
This is exactly right. A “legal opinion” is just a lawyer’s professional view of the law. It may be right, it may be wrong. It may be an abstract intellectual exercise in explicating what the law is (or isn’t) and where the grey areas lie (there are almost always grey areas), and what the various pros and cons might be for different theoretical views, before coming to a conclusion, like an A level maths question about smooth beads moving in a vacuum.
But to have practical utility, to apply the law to a real world situation, a legal opinion needs to be grounded on and engage with a factual matrix – reciting what the known or assumed facts are, and explaining what the possible legal implications of those fact are, and what the various legal or other options may be – for example, do nothing, take (or omit) some action, negotiate, sue, whatever.
It is never enough to know that some eminent lawyer has given a legal opinion. To place any reliance on the opinion, the client or a third party needs to understand the basis on which that opinion was given – the instructions that were given, including the facts that are known or assumed, and what verification there may be for them – and then look at the quality of the legal reasoning, step by step. Have the factual assumptions in effect assumed the answer? If not, at some point there may be a question of legal judgment, before the important point where the lawyer’s professional legal view is given.
Furthermore, different parties may have different views of the facts, and different lawyers may disagree on the legal implications. As a discipline, it is closer to history than computer science.
Just one final thought (for me) on the Treasury Devil – I’m pretty sure James Eadie was in that role on the Gina Millar case.
Given the lack of success that the government had in this case, was it, is it possible that alternative legal advice was sought in view of the Millar hearing?.
Maybe the government felt he is/was losing his mojo?
I highly doubt that the government can have genuine concerns that James Eadie is losing it, and I’d refer you back to the list of cases he’s had a hand in.
The problem, surely, is not with his mojo, but the cabinet’s. If in this case mojo is a euphemism for ‘basic grasp of the law’.
It seems rather more likely that they were simply worried about what advice he would give. Rightly so, for their purposes, if his advice indeed included some inconvenient lines about the “assumptions” he was asked to adopt. Barristers usually re-read their advices before sending them, and such unfortunate comments rarely stay in by accident.
Blame wouldn’t attach to counsel representing the government in a case like that, so much as in whatever counsel had advised the government, before it took the challenged action, that the action was lawful (assuming the government got advice that it was lawful).
Is there any reason to think that Eadie was consulted before the government acted at all, and that he advised that the action would be lawful?
One of the biggest problems thrown up by Brexit is that at the root of the NI ‘trilemma’ is a legal problem not a political problem – it is not possible to leave the Single Market and Customs Union without a customs/regulatory border somewhere between GB and the EU, but each candidate for border location is (quite understandably) unsatisfactory to a large and vocal constituency. Usually it is possible to finesse political problems, a compromise here, a bit more money there and so on. The NI trilemma has never been capable of being finessed – it is like the Princess and the Pea – however much bluster/mattresses you deploy, eventually it will be felt hard by someone. May tried initially to wish it away, and when she could not she resolved earnestly to find a ‘compromise’, but since it was unacceptable to the ERG and DUP (for different reasons) she had to go. Johnson no doubt thought he had finessed it when he got his deal through, but it seems that in order to do so he made mutually inconsistent promises to different constituencies which they are now calling in. The unforgiving nature of those constituencies suggests to me that the NI trilemma will see him off too, possibly sooner rather than later. My prediction is that the NI trilemma will continue chewing PM’s up until we get the first one who has the courage to state plainly to the public it’s nature and that we are stuck with it. As I look about at the various options I am not holding my breath. That is a shame, because my view is that not being able to move on from this ‘Pea’ has been at the heart of much that has been rotten about UK public life these last few years.
“One of the biggest problems thrown up by Brexit is that at the root of the NI ‘trilemma’ is a legal problem not a political problem…”
The one thing we’ve learned both inside and outside of the EU is that despite the EU (a rules based organisation when it suits it) politics always trumps the law everytime – it can’t be any other way in a non nation state but legal’ supra-national’ entity.
For many years the EU and, UK to a lesser extent, have used the concept of ‘constructive ambiguity’ to manage anomalous legal issues.
The WA/NIP is, I fear, one of those exceptions to the rule that shatters the ambiguity that even the EU and UK can’t agree on
Sometimes ambiguities /anomalies have to be dealt with one way or another – fudging it, isn’t going to work.
“My prediction is that the NI trilemma will continue chewing PM’s up until we get the first one who has the courage to state plainly to the public it’s nature and that we are stuck with it.”
The public’s lack of understanding of the Northern Irish Trilemma has bedevilled the Brexit process for six years.
There should have been a clause written into the Bill that gave rise to the 2016 referendum:
“Before being entitled to vote in this referendum, each voter must read the Good Friday Agreement.
READ IT AND UNDERSTAND IT!!”
Just mentioning the GFA at all in rhetoric and debates would have been a fine start. Somehow, bafflingly, it never once came up.
One of the best blog posts I’ve ever read.
My views on this govt are unprintable.
Does the recent decision in Abu Aram v. Minister of Defence by the Israeli Supreme Court offer a way out for the government? They ruled that national law superseded international treaties, so presumably the NIP can be overridden by national law?
Within the UK legal order, the NIP can be overridden by UK law. All this means, though, is that UK law can allow the UK to violate a treaty. It won’t change the fact that what is done is a violation of the treaty; it won’t change the fact that it’s a breach of the UK’s international legal obligations; and it can’t shield the UK from any of the legal, reputational and other consequences of violating international law. All of which are reasons why, even though Parliament has the power to cause or permit the UK to violate international law, it is slow to exercise that power.
No mention of the Solicitor General in any of this. As a layperson I’m never clear what the division of labour is between the Attorney and the Solicitor. Can anyone explain?
“Oh! What a tangled web we weave, when first we practice to deceive.”
Many thanks for setting out this narrative of these exercises in governmental incompetence and bureaucratic infighting. That all of this has been disclosed outside Whitehall is as mind-boggling as the leak of a draft opinion by the US Supreme Court in the pending abortion case.
“But they have come now to regret this once “oven-ready” agreement.
And they would like it to change.”
Come to regret? Not at all. They never intended to honour it.
https://www.bbc.com/news/uk-northern-ireland-58910220
I expect the USA to become involved in this matter if this UK govt continues on this path. The Irish lobby in DC is extremely powerful and the current president is Irish, to boot (not that a Republican administration would behave differently with respect to this issue).
My guess is that Johnson and his government will put firmly back in its box!
This will result in the ultimate brexit irony – a foreign power preventing a UK government from implementing measures relating to nternal matters within its own borders.
It seems not to have occurred to the government that simply telling the Devil not to provide an opinion on whether the legislation is legal would not be enough to prevent him from making his views clear. After all, professionalism surely dictates that “assume these apples are oranges and give us a view on how much juice they contain” is a question which should not be addressed without at least drawing the client’s attention to the risk that the apples may in fact turn out not to be oranges.
Many professionals face similar dilemmas quite regularly and, to change musical genres for a moment, the neat solution he has come up with will leave us with a degree of sympathy for the Devil.
Thanks for this detailed and fascinating account of the legal issues behind the government’s behaviour on the Protocol. These are words I’m not used to using in this combination. Please keep up the good work.
What next?
Thus far, we have a government expressing contempt, and acting contemptuously and contemptibly towards each of the three constituencies at the root of the Northern Ireland trilemma.
This government has acted with clear contempt for the rule of law, already, in this matter and some others.
The government’s contempt for international law, adherence to treaties, and our international obligations could not be clearer.
They are openly contemptuous of those who are injured, or even ruined, by the consequences of their actions: and Britain’s fishermen may well turn out to be among the mildest of Brexit’s hard cases. They’re just unlucky in being the earliest.
And now we see a contemptuous approach to legal advice: it is, to some, a disposable commodity like a newspaper editorial – someone will say what they want them to say, and it does not matter whether it is true or not, let alone logical, workable and morally defensible, as long as it is the politically-expedient ‘cover’ they wanted – and we can add the specific contempt of wilful ignorance of the law, where it seems that ‘shopping for advice’ leads to seeking the ‘best’ advice from mediocrities selected for their biddability and loyalty above all considerations of ability, and a clumsy attempt at circumscribing the advice of the government’s most respected and effective barrister.
Contempt for the useful principle of confidentiality in legal advice is leaking out to: they are going to regret that, someday – but we do see a glimmer of hope in that someone, somewhere, is using the dangerous practice of leaking confidential legal advice, in order to impede the latest dangerous folly.
But everyone here already knew all this, and the most useful question is still: “What next?”
What new contempt and contemptibility?
Do you think that an adverse judgement will stop them?
If I recall correctly, there is at least one instance of this government – or, perhaps, Mrs May’s – proceeding in open and deliberate contempt of court.
What are the limits, if any, to the power of wilful ignorance and arrogance, harnessed to industrialised mendacity?
I’m not sure about “… seeking the ‘best’ advice from mediocrities selected for their biddability and loyalty above all considerations of ability, …”. If you mean “selected by the Civil Service”, that seems doubtful. At recruitment level it still has standards. The Cabinet Office does a lot of filching from other Whitehall departments. I would assume that ability is the first eye-catching consideration. However, on the principle of “By their fruits shall ye know them”, we are entitled to speculate about how a sojourn in the innermost circle effects changes in the “filchee’s” personality.
I am happy to assure you that I mean “Selected by the Cabinet”, for all that it risks disclosing my intended targets for for a deeply unflattering comment and a rudely-barbed criticism.
To the best of my knowledge as an outsider, the Civil Service does indeed maintain standards, against an increasing adversity; there are very few fools among them and the higher, the fewer.
Politics differs somewhat, here, but the most senior Civil Servants are well aware that they are directed by and accountable to our elected leaders.
And rightly so: we’re a democracy.
But they are also subject to the rule of law, and will be held to account by the courts if they break it; it is their duty to act within the law, as much if not more so than any other citizen, and they are acutely aware of their duty to shield their junior staff from unlawful orders originating from On High.
So, to paraphrase the late Dick Crossman, the fine distinctions between ‘Ministry’ and ‘Ministerial’ extend to the differing reasons why Civil Servants and Ministers seek legal advice: both in the quality of the decisions guided by it, and the quality of advice they solicit and receive.
I suspect that the Permanent Secretaries read this column, too: and if any of them don’t, it is likely that they have no need to by virtue of being better-advised and better-informed than any of us and all of us put together, on constitutional law and its uncomfortable relationship with Twenty-First Century politics.
I think that we will all have cause to regret that they are so discreet about it, in the near future, because I have a strong suspicion that matters are far worse than the counsel of my uninformed cynicism – as if the bare facts of the law, laid out with such startling clarity by our host on the Law and Policy Blog, weren’t worrying enough.
I cannot but help think that although Blair’s Government tried the same wheeze or the Iraq War in the end it was that which destroyed Blair’s reputation. The good things he did, like being one of the architects of the GFA are overlooked by many people.
I haven’t forgotten how pissed off he looked when Mo Mowlam got that standing ovation at the Party Conference.
This blog is always an education, and succeeds in making law (particularly constitutional law) exciting and interesting (no matter how earnestly the author may wish it wasn’t). But this particular post is the one that tipped me into becoming a subscriber (as I had felt I ought to do, but had never quite got around to it). Now I can feel I am contributing my mite to the good work upkeep.
It sounds like the Treasury Devil was consulted in a very specific and limited way.
Ho ho
Hi David
….
A typo [Para. 9]?
But they have come [now?] to regret this once “oven-ready” agreement.
….
Thanks for your fascinating [though deeply depressing] insights into the current Standards in Public Office… The problem seems to be that, over the past 10-years, this type of behaviour has become endemic in our democracy.
While a fish may well “rot from the head down”, it is depressing that in our part of the world, the rot appears to have reached all the way to the (Parish Council) tail.
Our very own local Council seem to be following the Government’s lead.
Having complained to the CEO about five years of incompetence, maladministration and probably corruption in relation to an ultra vires decision, taken contrary to 20-years of Parliamentary intent and only achieved by Officers lying to two Committees. The CEO proceeded to breach the Council’s own constitution by allowing the decision maker to deal with our complaint about her own decision. Surprisingly, they saw nothing wrong with their decision…
Having complained to the Council’s very own Devil (Monitoring Officer) about this lack of probity, she “investigated” our complaint, which included an independent barrister’s opinion [no doubt] to ‘justify’ their decision to ‘Carry on Regardless’.
It’s (un)fortunate that they shared this advice with us, in the interests of ‘transparency’. It is equally (un)fortunate that this independent advice clearly indicates a very ‘focused’ Instruction was used and that, despite this, having not got the answer they hoped for, they proceeded to ignore three key pieces of the advice they did get and proceeded anyway!
Is it corrupt for the Monitoring Officer to attempt to hide behind LPP to [desperately] try to prevent disclosure of her Instruction to Counsel, that was [mis]used to trample on the Human Rights of a tax payer?
Is it corrupt for the CEO to refuse to investigate this behaviour?
It will be interesting to hear the ICO’s view.
It will be equally interesting to hear what the LGO think, however, having had cause to threaten them with Judicial Review, for their failure to investigate these matters for the past three years, we are not holding our breath…
Thank you. Fortunately that typo had already been caught.
Truly exceptional post that has enhanced my understanding of all this shenanigans considerably. Bonus points for Sparks!
Thank you for a wonderful exposition. What is most frustrating from my perspective as someone living in Belfast is that the government claims to be acting in defence of the Good Friday Agreement. It would be hard to imagine a more disingenuous argument. Those most radically opposed to the Protocol in NI overlap with the constituency that was against the Good Friday Agreement in the first place and, for that matter, it includes those still opposed to the Agreement. A majority of the electorate in Northern Ireland didn’t want Brexit and voted against it in the 2016 referendum. Also there was strong support for the idea of the backstop before it was replaced by the Protocol. Now it seems the government wishes to justify tearing up the Protocol, contrary to the clearly expressed wishes of the electorate in Northern Ireland, as shown by the outcome of the elections here last month.
“What is most frustrating from my perspective as someone living in Belfast is that the government claims to be acting in defence of the Good Friday Agreement. It would be hard to imagine a more disingenuous argument.”
Well, quite.
I came across this post in another blog in relation to the UK’s earlier attempt to override the WA in the Internal Market Bill of 2020.
https://voelkerrechtsblog.org/thou-shalt-not-break-international-law-in-a-very-specific-and-limited-way/
It’s a long read, but the gist is that other countries, including the US and Germany have quite often broken international treaties – the rub being they don’t normally broadcast it ahead of overiding the treaties in domestic law.
I’m still intrigued as to what (if any) white rabbit the attorney general is going to pull out of her top hat in justifying the legality of what the government propose to do.
“Somebody senior internally is insisting that First Treasury Counsel be consulted, and that the Attorney General’s convenient advice cannot be accepted on the nod.”
In my egregious ignorance of these matters I am finding it difficult to envisage who such a senior personage might be. My impression was that, despite the departure of Dominic Cummings from the premises, his attitude to government still pervaded the atmosphere at No. 10, viz., “Convention be buggered: any technically feasible fudge is acceptable to drive through the Wishes Of The Leader”, the prime example being the proroguing of Parliament.
So how has someone cursed with a residual respect for the legal and administrative conventions been permitted (a) to rise to and (b) to remain in a position of influence, from which [s]he is capable of forcing ministers to act against their own desires?
Given that elected Tory members, whether on the front or back benches, were all apparently selected on the strength of their personal loyalty to Johnson rather than for any other strength, that just leaves the Cabinet Office’s civil servants. In light of the Moral Spongiform Encephalopathy recently evinced in the senior ranks of that body, the fulfilling of the aforementioned desires should have been a doddle.
Indeed, if we indulge for a moment in “kremlinology” – trying to see where the power lies, i can see Boris giving directions to “get on with it and get this fixed”. I cannot see this crime minister reading much detail. I imagine there are undercurrents from zealous groups and one hopes, some weighty persons of reference giving on this subject different views. So far the CM has chucked any heretic offering discordant views out. He is reckless. How far will he go?
Vlad will be watching.
Suella Braverman is a committed brexiteer and it is probably this rather than and legal distinction that secured the Attorney-General role for her.
I recall surprise that Boris Johnson sacked Geoffrey Cox as A-G in 2020, replacing him with Braverman. Cox is also a brexit supporter whose rhetorical talents and stentorian tones made him a popular figure in the party. He has since lost that some of that sheen as a result of the revelations around his huge income and work in the British Virgin Islands. But this also provides the clue to his demise. Cox is financially independent with a successful career outside parliament. He was not dependent on the PM’s patronage. This was reflected in his approach to the A-G role. When Theresa May’s backstop deal was in contention Cox was asked for his opinion. He gave an opinion which was exactly what May didn’t want and in large measure sunk the deal. Boris Johnson far prefers someone who will give (or in this case procure) the opinion that he wants, irrespective of its legal merit.
To a non legal reader like me, this is fascinating, thank you.
Utterly brilliant, absorbing and informative, while at the same time, no surprise whatsoever.
This is what happens when you appoint someone to the ‘independent’ role of the Attorney General, who’s task it appears is, not to offer the government ‘legal advice’, but to find ways to justify in law that which the government suspects or knows to be unlawful?
Will there be legal grounds to challenge the Government’s anticipated breach of the NIP through the English courts even though it will be ok from a domestic UK legal perspective? If so, what might they be?
What was the point of negotiating in Article 18 NIP (democratic consent in NI) if the UK Government is now going to jump the gun and preempt the decision of the NI Assembly in 2 years?
“Will there be legal grounds to challenge the Government’s anticipated breach of the NIP through the English courts even though it will be ok from a domestic UK legal perspective?”
If Parliament enacts primary legislation, then no. Parliament may make any law it wishes. The courts are bound by it.
The number one reason for staying in the EU was to avoid the loss of prestige and influence that would ensue.
That loss is unfolding in so many ways, daily.
Incompetent government notwithstanding, this is one more example. The UK under Johnson is wading upstream against the current.