This is not a partisan blog, and long-time readers will recall that I was a fan of the hung parliament of 2017 to 2019.
My sentiments were, however, not shared by many in politics and that parliament came to an abrupt end in December 2019.
This was when the opposition parties – stupidly in my view – agreed to an early general election, which turned out to be on the issue of “getting Brexit done”.
And so the Conservatives got a majority of eighty.
To a large extent all what has happened in British politics since 2019 is not so much the fault of Conservatives, but the fault of the opposition parties in allowing it to happen.
But.
Just over halfway through the maximum length of this parliament, we seem again to have somehow reverted to what some now call a hung parliament.
The governing party now, in reality, comprises the fifty Conservative Members of Parliament who voted for Elizabeth Truss in the first round of the recent leadership campaign, and about a hundred or so more who have or want ministerial office.
On the government backbenches you have figures such as Michael Gove and Grant Shapps, as well as Rishi Sunak and indeed Boris Johnson, and you also have the European Research Group and the Northern Research Group.
The governing party in the House of Commons is currently an unstable coalition.
This was most obvious in how the U-Turn in the abolition of the 45p rate came about.
Gove and Shapps said they would be against it, and so it was dropped.
Those Truss supporters who fantasised about what they could do with an eighty majority are going to be disappointed and frustrated with the actuality.
Not least because the majority has gone down because of by-election defeats.
Thirty-or-so Conservative backbenchers can now veto government policy – and they know that they can get their way.
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Johnson warned us against a hung parliament in 2019.
But it looks like we have got one anyway.
Let us hope it lasts, and that the government does not again get carried away with forcing things through just because it can.
Why and how this has come about will fascinate political commentators.
But from a liberal constitutionalist perspective, it is to be welcomed.
We are governed better when there is real parliamentary accountability and scrutiny – when the government cannot just assume it will get legislation through the commons.
Perhaps party discipline will reassert itself in the governing party, bringing this situation to an end.
Perhaps.
But in the meantime, let us welcome what appears to be a hung parliament again.
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Day-to-day politics have returned, and there was an interesting admission from the Prime Minister:
New – Ahead meeting Biden in NY tomorrow, @trussliz admits no UK/US trade deal is on the horizon. Clearly true, but also an attempt to break narrative that if she doesn't do a deal on the NI Protocol, she'll be punished by Biden and there won't be an FTAhttps://t.co/AcYdp590GW
Of course, one reason for this admission may be tactics.
The United States can hardly use a trade deal as leverage in respect of their concerns over the Northern Irish Protocol if we say those Californian grapes are already sour.
You can see the point of such a tactic, even if you do not see any merit in it.
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Another recent deft government manoeuvre, which was not widely noticed, was the government not carrying through the nomination of the controversial Christopher Chope to the committees investigating the conduct of departed Prime Minister Boris Johnson:
Government has not moved the motions on Sir Christopher Chope joining the privileges committee and the standards committee
A further tactical switch was the dropping of the attempt to repeal the Human Rights Act, which was going to take up a lot of parliamentary time and departmental resources and still get stuck in the House of Lords.
As this blog suggested, this dropping of the bill is likely to be replaced by smaller illiberal changes to other legislation, rather than through one big bang Act of Parliament.
And today also saw indications that the government’s commitments are weakening to “privatising” Channel 4 and the awful Online Safety Bill.
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Taking these incidents together, one could form the impression that the government is becoming more pragmatic.
If so, this would be a welcome to change to the bluster of the Johnson period, where unforced errors were freely made, and as loudly as possible.
But.
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Tactics, of course, are not the same as strategy – or overall tone.
Even when there are this micro-changes to the business of government and the process of legislation, the macro politics seem unchanged.
In particular, the “cake-ism” of the government’s Brexit policy – and of its promised tax policy.
The government is also maintaining the fiction that the Northern Irish Protocol bill is “necessary”.
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The new deputy Prime Minister Thérèse Coffey (who – disclosure – I happen to have known since university) was last week roundly and rightly mocked for her apparent new departmental guidance on the Oxford comma.
(The punctuation in the title of this post is deliberate.)
But perhaps more interesting from a policy perspective was what else was in that guidance:
But tellingly message also suggests "all submissions should go to junior minister ahead of SoS" – a sign she will be so busy as deputy PM that much will be delegated
Also she "likes slides (no more than 8) to structure meetings and "a maximum of 4 officials" so everyone speaks
This is sensible stuff for any minister in charge of a medium-sized or large department.
It should be the minimum standard required – but one suspects hyper-active and unfocused minsters have been trying to do everything and ending up doing nothing.
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Tactical improvements are of little use or value if the overall strategy is misconceived.
Neither Brexit nor solving the cost-of-living crisis will be “done” by the government’s current approach.
Avoiding easy mistakes will not be enough with the hard policy problems ahead.
That is also the minimum requirement of governance.
And it is a measure of how bad politics – and policy – have been that these simple changes are conspicuous enough to be welcomed.
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This blog said that it would give the new Prime Minister a clean slate – although some under the line thought this was too generous.
And it is still very early days: the Prime Minister has been office less than two weeks, and that has included a period of national mourning.
The early signs are that there may be marginal improvements.
But the big blundering is still there.
And although we should always remember that there is no one way of governing well, we should note there are many ways of governing badly.
This should be obvious to capable politicians, Elizabeth Truss and Thérèse Coffey.
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I wrote about the Oxford comma legal case on the day Theresa May triggered Article 50 and the FT’s readers rated their relative importance. pic.twitter.com/nVttkkw5jc
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You may have Very Strong Opinions about them as a person and as a politician.
But let us put those Very Strong Opinions to one side, and let us look at the appointment from a constitutionalist perspective.
Constitutions are about, among other things, parameters of political action – constitutions provide what certain political and other actors can and cannot do, and when.
So the first point to make is that the new Prime Minister only has a short period so as to make any political impression before the next general election.
It is now September 2022 – and the next general election has to be called by December 2024, in just over two years’ time.
The last possible date for an election, once called, is January 2025.
This means that any controversial legislation – especially if it outside the scope of the Conservatives’ 2019 manifesto – is unlikely to get through the House of Lords in time.
And the new Prime Minister may even want to call a general election sooner, which they can do because the Fixed-term Parliaments Act is now repealed.
The second point to make is how weak the new Prime Minister is, despite the governing party’s majority in the House of Commons.
Only 50 of the new Prime Minister’s colleagues supported them on the first vote, out of 358.
The new Prime Minister did not even have a majority support of their parliamentary party at the final round before it went to the party membership vote.
This means that there seems to be little positive support in the Conservative parliamentary party for the new Prime Minister.
Indeed, both the departing Prime Minister and the defeated leadership contender will probably have as much substantial support in the parliamentary party as the new Prime Minister.
The new Prime Minister, in their first appointments, seems to be rewarding their supporters rather than building a party-wide coalition.
As any Prime Minister only has so much autonomous power, the lack of a natural and positive parliamentary majority will be a problem.
The governing party is currently prone to rebellion and revolt, and there is nothing about the appointment of the new Prime Minister and their first cabinet appointments that looks as if this propensity to rebellion and revolt will change.
So, not only is there a looming general election and the practical inability to force contentious measures through the upper chamber, there is the possibility that the new Prime Minister may not even be able to get legislation through the lower chamber.
Within the United Kingdom more widely, the matter of the Northern Irish Protocol is no nearer resolution, and the Scottish government is pressing for a further referendum.
Serious questions about the future of the Union are being posed at a time where the new Prime Minister is not in a strong position.
And all this – all of this – is in addition to the pressing political problems of the cost-of-living crisis and the escalating energy crisis, as well as war in Europe.
Any one of these would be a challenge to a Prime Minister in a strong position.
It is difficult to see how the new Prime Minister, who is in a weak position, is going to be able to address, let alone resolve, these issues.
As this blog has said before: do not underestimate any politician who clambers to the top of what Benjamin Disraeli called the “the greasy pole”.
And this blog will give the new Prime Minister a clean slate.
But.
Given the circumstances of the appointment, the outlook for the new Prime Minister Elizabeth Truss is not looking good.
It is difficult to be optimistic – even if one supports her politically.
Brace, brace, as they say.
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The accountancy professor and campaigner Richard J Murphy launched an attack on certain lawyers on Twitter.
It is important that this attack be understood on its own terms, without misrepresentation and distortion, so I have screen-grabbed the thread below:
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I think Murphy is wrong.
I think – perhaps counter-intuitively – that it is a Good Thing that those who are powerful in society have to have lawyers in place when exercising their power.
The starting point is the simple observation that modern societies – unless there is some happy intervention – tend to be unequal.
This means that in modern societies there tends to be people with more power than others.
These people would tend to have power, regardless of whether they have lawyers or not.
So why do those powerful people need to have lawyers?
It is because of a thing called “the Rule of Law” which means that every exercise of power has to have a lawful basis.
“The Rule of Law” means the powerful cannot do as they wish: instead they have to comply with the law.
That is why powerful people often have lawyers.
Imagine a society where those with power did not need lawyers – that the powerful could exercise their power without worrying about whether they are breaking the law.
That would be an even more brutal and unequal society.
In each of the categories that Murphy posits in his thread, the real significance is that the powerful have to have lawyers – because however mighty those powerful people are, the law is mightier.
What would be more worrying is if the powerful could get their way in each of Murphy’s categories without needing lawyers.
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The points I make above are not original.
The great Marxist historian E. P. Thompson in Whigs and Hunters (perhaps the best British work of practical legal history), and other books, pointed out that the Rule of Law helped those without power in their dealings with those with power.
I happen to have spent time in City law firms, and I have seen how the need for compliance with the law means that those with power have had to do things that they otherwise would not do.
If Murphy is correct, then those with power would simply exercise that power without legal advice – and without any legal constraint.
This would not have the positive effects that Murphy possibly expects.
The applicable laws may well need improving and reform – there may need to be better balances struck between the interests of those with more power and those with less power.
That is the job for the legislature.
But that those with power need to have legal advice is a Good Thing.
For without the powerful having this need to take legal advice, what could go wrong would go wrong – as another Murphy may have once said.
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“To protect our freedoms from state encroachment and encourage greater social responsibility, we will replace the Human Rights Act with a UK Bill of Rights.”
“The next Conservative Government will scrap the Human Rights Act, and introduce a British Bill of Rights. This will break the formal link between British courts and the European Court of Human Rights, and make our own Supreme Court the ultimate arbiter of human rights matters in the UK.”
“We will not repeal or replace the Human Rights Act while the process of Brexit is underway but we will consider our human rights legal framework when the process of leaving the EU concludes.”
“We will update the Human Rights Act and administrative law to ensure that there is a proper balance between the rights of individuals, our vital national security and effective government.”
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This post looks at what the implications of that last 2019 commitment may be – though, in doing so, it is accepted that manifesto commitments are not legally binding obligations, and so there is leeway in how they are to be interpreted.
The 2010 and 2015 manifesto commitments do not need much interpretation in respect of the Human Rights Act – they are as plain as any pikestaff.
The Human Rights Act was to go – replaced, scrapped.
The 2017 commitment is also not ambiguous – the Human Rights Act was to stay, for now.
But.
The 2019 commitment was not that the Act would be replaced or scrapped, or that it was to safe for now.
The 2019 commitment was only to ‘update‘ the Act.
The 2019 commitment could have been to ‘scrap’ or ‘replace’ the Act – but the governing party decided against making that commitment.
The governing party opted for ‘update’ instead.
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The governing party thereby has an election mandate for ‘updating’ the Human Rights Act.
And so if this is what they do, then that cannot be gainsaid – at least not constitutionally,
But the government is not now proposing merely to update the Act – but to repeal it and replace it with another statute.
To do, in effect, what the 2010 and 2015 manifestos promised.
But do the governing party have a mandate for repealing the Human Rights Act outright?
In other words: is repeal within the scope of an ‘update’?
Again, it is important not to be legalistic about this – no legal claim can be brought for a government breaking its manifesto promises, and so no manifesto should read as it is a formal legal document.
But what is stated in a manifesto is not without constitutional consequences.
This is because of the so-called ‘Salisbury doctrine’ – a constitutional convention.
This doctrine provides – quite rightly – that it is not open to the House of Lords to block or delay legislation for which a government has obtained a mandate at a general election.
The question thereby becomes whether this proposed ‘Bill of Rights’ is protected by the Salisbury doctrine or not.
If it is protected by the Salisbury doctrine, then the House of Lords cannot and should not block or delay the bill – though, of course, it may seek to make amendments.
If the bill is not protected by the Salisbury doctrine, however, then there could be such delays – including forcing the government to resort to the Parliament Acts to force the law onto the statute book after a year without the support of the House of Lords.
As the new bill substantially reduces rights and freedoms of individuals, there may be those in the House of Lords that will want to amend the bill beyond what the current government would want to accept – and to insist on those amendments.
Their view may be that “updates” – whatever that means – may be fine, but not outright repeal – because the government cannot point to any mandate for repeal.
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If a bill is protected by the Salisbury doctrine, then the House of Lords will (usually) back down before the government has to invoke the Parliament Acts.
Of course, the only reason any of the above may be an issue is, no doubt, that the governing party did not want to say expressly in its manifesto that it would repeal the Human Rights Act outright, as that might have scared the voters, if not the horses.
A promise to ‘update’ was a lot less alarming to middle-ground voters.
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One suspects the House of Lords will be wary about opposing the government in respect of such a populist piece of legislation.
And the government – and its media and political supporters – will clap and cheer at the prospect of a ‘peers vs people’ narrative.
But because of the mild wording of the 2019 manifesto commitment, the government cannot be certain of the House of Lords will back down on outright repeal.
And, what is more, this government in particular is not in any strong position to insist that other elements of our constitutional order comply with mere conventions.
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And Schedule 1 to the new legislation also sets out the articles of the European Convention of Human Rights:
The proposed Bill of Rights does not create any new ‘British’ rights instead of the European Convention.
The fundamental purpose of the 1998 Act and the new bill are the same: to provide a basis in domestic law for giving effect to the convention rights in the European Convention.
And the key operative provision is the same.
Here is section 6 of the 1998 Act:
And here is clause 12 of the proposed bill:
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So.
Both the 1998 Act and the new legislation place the rights under the European Convention of Human Rights into English law by means of a schedule.
And the 1998 Act and the new legislation provide – in identical language – that public bodies must comply with those rights.
Even the defintion of “Convention rights” are the same.
The 1998 Act:
The new Bill:
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You may wonder what is the point of an entirely new enactment that does, at the fundamental level, exactly the same as the legislation it is supposed to replace?
And the answer to that is there is no real point.
The new legislation does make a difference in respect of how the convention rights can be enforced in certain situations.
The overall effect – odd for legislation which will be called ‘The Bill of Rights”, if you think about it – is to make it harder practically for convention rights to be enforced.
But that is done by the means of various processes and other tinkering – but nothing which warrants such a legislative overhaul.
Those new provisions can be looked in detail at as the bill proceeds.
But in respect of the fundamentals this new bill gives effect to the same Convention rights with the same key obligation and with the same defintion of convention rights.
The rest is detail and symbolism.
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Let us start at the beginning, for it is a very good place to start.
And at the beginning of the Northern Irish Protocol Bill, just after the title, purposes, and preamble, is clause 1.
(A ‘clause’ is what becomes a ‘section’ by legal magic when a Bill becomes an Act.)
Clause 1 provides:
There will be time to look at the other provisions of this Bill, but let us take a moment to look at clause 1.
The content of the clause is not part of the title, purposes or preamble to the Bill.
No, we can check, and it has a clause number.
Clause 1 is intended to be part of statute, to have the force of primary legislation.
But.
It does not seem to be law.
I do not know what it is.
It is called ‘Introduction’ – as if it was part of some Penguin Classic.
But the the title, purposes and preamble are usually all the ‘introduction’ a statute needs.
For example. the purposes tell us that the Bill is to make “provision about the effect in domestic law of the Protocol on Ireland/ Northern Ireland in the EU withdrawal agreement, about other domestic law in subject areas dealt with by the Protocol and for connected purposes.”
That will tell a court what the Act will be for, if a court needs an introductory aid to construction or interpretation of any of the provisions.
The provisions of this clause 1 do not create obligations, or confer any discretions or rights.
What are they doing?
Are they capable of legal effect, in and of themselves?
Are they intended to have legal effect, in and of themselves?
Are they intended to be aids to construction or interpretation of any of other provisions, in the case of ambiguity or doubt?
If so, how?
What are they supposed to be?
They read more like a policy statement or explanatory note for the Bill – but these are separate documents that the government has also published.
If the rest of the Bill needs a provision like this so as to “make” things “clear” then the drafting of the other provisions needs to be done again.
Perhaps clause 1 is just to get “Union with Ireland Act 1800 and the Act of Union (Ireland) 1800” somehow onto the face of the Bill – indeed on to page one – so as to placate unionists?
And, applying the rule against surplusage – that courts give effect, if possible, to every clause and word of a statute so that no clause is rendered superfluous, void, or insignificant (definition taken from here) – what actual difference does clause 1 make to the rest of the Bill?
If clause 1 were – say – to be deleted, what difference would it make to the legal effect of the Bill once enacted?
The fear must be that the creeping use of legislation as a form of political propaganda – press releases by other means – has now infected the very statutory provisions themselves.
It is difficult to imagine what the parliamentary drafter intends by clause 1 as to its legal effect.
Perhaps this has happened with other Bills – and, if so, please leave comments and links below with examples.
Perhaps it a commonplace, and I have missed it in other legislation.
But it does not seem right.
And it perhaps suggests that the government does not sincerely intend to place this Bill on the statute book, and that the Bill as a whole – and not just clause 1 – is merely for political consumption.
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This Bill is so the government can breach (or “not perform”) its obligations under the Northern Irish Protocol.
The government has also published not the legal advice in support of the Bill, but their legal position.
But it is not even a legal position.
It is a lack of a legal position.
As a legal justification placed into the public domain this is even weaker than taking a lockdown journey to Barnard Castle to test one’s eyesight.
The government is legally even weaker than many legal commentators thought.
We were expecting some clever whizz-bang argument, desperate but perhaps just about plausible.
But we have got this instead.
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Let us look why this is so weak to the point of non-existent.
The government’s “position” is as follows.
Step one – the government sets out what it sees as “necessity”.
“The doctrine of necessity provides a clear basis in international law to justify the non-performance of international obligations under certain exceptional and limited conditions. It has been accepted by the International Court of Justice and is reflected in the International Law Commission’s 2001 Articles on State Responsibility, which successive UK governments have regarded as generally reflective of customary international law. By way of summary, the term ‘necessity’ is used in international law to lawfully justify situations where the only way a State can safeguard an essential interest is the non-performance of another international obligation.”
Step two – the government sets out that “necessity” means it has “no other way” than to put forward this legislation:
“… the strain that the arrangements under the Protocol are placing on institutions in Northern Ireland, and more generally on socio-political conditions, has reached the point where the Government has no other way of safeguarding the essential interests at stake than through the adoption of the legislative solution that is being proposed. There is, therefore, clear evidence of a state of necessity to which the Government must respond to.”
Step three – the government ties the two steps together to assert that “in light of the state of necessity” the “non-performance” (ie breaching) of its obligations under the Northern Irish Protocol would be justified under international law:
“The Government recognises that necessity can only exceptionally be invoked to lawfully justify non-performance of international obligations. This is a genuinely exceptional situation, and it is only in the challenging, complex and unique circumstances of Northern Ireland, that the Government has, reluctantly, decided to introduce legislative measures which, on entry into force, envisage the nonperformance of certain obligations. It is the Government’s position that in light of the state of necessity, any such non-performance of its obligations contained in the Withdrawal Agreement and/or the Protocol as a result of the planned legislative measures would be justified as a matter of international law. This justification lasts as long as the underlying reasons for the state of necessity are present. The current assessment is that this situation and its causes will persist into the medium to long term.”
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Ah, the bare legal doctrine of necessity.
The general issue with “necessity” at law is that any of us can at any time assert that it is “necessary” to breach an obligation.
This means that, in legal practice, “necessity” is made very difficult, if not impossible, to rely on as a defence for breaking any obligation.
In the domestic law of England and Wales, for example, every law student is introduced to the singular facts of the 1884 case of R v Dudley and Stephens to show how limited the defence of necessity is to a criminal charge.
And now, in 2022, “necessity” is being invoked in respect of a different type of shipwreck: the government’s post-Brexit policy.
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In international law, the principle of “necessity” is similarly limited in its scope.
Here is Lord Anderson QC, whose tweets should be read carefully:
The State must also establish, as the government accepts, that it has not substantially contributed to the situation of necessity. pic.twitter.com/mAelH3nv7M
These citations give an indication of the rare and extreme conditions that must apply before the defence of necessity can be accepted. pic.twitter.com/15sLUm3Luj
– the State’s act is to safeguard an essential interest against a peril;
– the peril shall be grave and imminent;
– the course of action followed shall be the only way available; and
– no other essential interest shall be seriously impaired as a result of the breach.
The digest also states that the excuse is unavailable where the State has (substantially) contributed to the situation of necessity.
These are high hurdles to meet.
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But there is more.
The parties to the Northern Irish Protocol – the United Kingdom and the European Union – have already expressly agreed a scheme for dealing with any problems under the protocol.
This mechanism is set out in Article 16:
And this annex to Article 16:
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The United Kingdom and the European Union contemplated the possibility of problems and agreed a way of dealing with them, which would enable parts of the protocol if – ahem – necessary to be temporarily disapplied.
It makes no sense – whatsoever – for the government to race to seeking to rely on the principle of “necessity” under international law for breaching the protocol without triggering the Article 16 process first.
As one tweeter said:
I am confused. The Protocol represents such a threat to the stability of the UK that it is legal to breach the international treaty which created it, yet the threat is not serious enough to trigger the clause within the treaty specifically to deal with such a threat, Article 16?
— Dr. Bendor Grosvenor 🇺🇦 (@arthistorynews) June 13, 2022
There is no answer to this point – and there can be no answer to this point:
There are no possible circumstances where the United Kingdom can resort to the the principle of “necessity” under international law without going through the Article 16 process first.
And the government – despite many threats – has not triggered the Article 16 process.
The “position” published today even admits the government believes that the Article 16 were met:
“In July 2021, however, the Government assessed in the Command Paper that, as a result of both diversion of trade and serious societal and economic difficulties occasioned by the Protocol, the conditions for the exercise of the rights provided for under Article 16 of the Protocol were already met.”
But the government then did nothing under Article 16 on that basis.
For the government to not trigger Article 16 instead of resorting to the the principle of “necessity” under international law is beyond rational comprehension.
Wookies coming from Endor makes more sense.
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And there is even more.
So “necessary” is this proposal that the legislation will take at least months, if not a year to pass into statute.
Such a leisurely timeline does not indicate urgency – and it does not show that the problem is “grave and imminent”.
It could be a long time before these unilateral changes to the protocol come into effect:
• Gov plans to do 2nd reading before six-week summer recess • Lords to sledgehammer it • Ministers won’t use powers until new systems (green/red lanes, dual-reg system) are ready to go
Putting what is said today together with this blog’s recent posts (here and here) on the strange way that the government is claiming to have legal cover for this proposal, it seems that the First Treasury Counsel was asked to accept as an assumption that it was “necessary” for the United Kingdom to break its international obligations.
The so-called Treasury Devil then questioned that assumption, and he was correct to do so.
This “legal position” does not provide any legal cover.
It makes no sense, even on its own terms.
It is a contrivance.
As my University of Birmingham colleague Dr Adrian Hunt avers:
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The reality is that the problems which the government mention were entirely foreseeable when they negotiated and signed the protocol, and were indeed foreseen.
The government then just wanted to “get Brexit done” – everything else was detail.
And the problems which have arisen are the main reason the protocol included Article 16.
So not only were the problems foreseen, a solution was also envisaged.
It is difficult to conceive of a weaker basis for the government of the United Kingdom to assert “necessity” as a breach of international obligations.
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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
“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:
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).
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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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.
*
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.
*
Now let me introduce you to the Devil.
That is, the “Treasury Devil” – the nickname for First Treasury Counsel.
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 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
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.
“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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This blog enjoys a high standard of comments, many of which are better and more interesting than the posts.
Comments are welcome, but they are pre-moderated and comments will not be published if irksome.
