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.
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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?
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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.
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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.
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.
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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.
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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.
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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.”
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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”.”
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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.
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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.
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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.
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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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Dominic Raab, the Lord High Chancellor and Deputy Prime Minister, was on the media this morning after yesterday’s calamitous confidence vote.
A vote which – politically – was the worst possible political outcome for the current Prime Minister, though the possible constitutional (as distinct from political) crisis of which I warned was averted.
Raab was asked about whether the party rules could be changed so as to allow a further such vote within the next year.
His reply, with a straight face, was:
On changing 1922 rules to allow another vote of confidence on the PM within a year @DominicRaab tells @BBCBreakfast "fiddling with the rules when you don't like the result is a bad look"
This lack of political self-awareness is priceless.
For changing – or seeking to change – the rules because of unwanted outcomes is what this government does again and again.
And again.
Indeed, looking from the outside, it is the nearest this government has got to an organising principle.
If there is such a thing as ‘Johnsonism’ it is a description of this ongoing push to remove the checks and balances, and to change or neuter the rules and processes, that stop this government from doing whatever it likes.
In Raab’s own department – the Ministry of Justice – there is a constant move towards changing judicial review rules and human rights law because of a (perceived) dislike of what judges are deciding.
Indeed, this is the very point of Raab’s rather pathetic proposal for a so-called “Bill of Rights”.
The politics of the Northern Irish Protocol is, at bottom, about how the current government wishes to resile from the agreement that it had negotiated and signed.
The current prime minister Boris Johnson and his ministers do not want to be held to the rules that came from lengthy negotiation and compromises.
To echo Raab, they do not like the result.
And so they want to fiddle around with those rules – an Internal Market Bill here, a threat to trigger Article 16 there, an Attorney General’s advice in the middle.
Constant fiddling – and just because they do not like the result.
Once you realise that this is what this government does – not least because it cannot think of doing anything more substantial – you see this in almost every area of policy.
But there is one thing that the Lord High Chancellor is correct about.
It is not a good look.
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Sensible conservative-unionists – and, no, that is not necessarily a contradiction-in-terms – used to abide by the maxim that politics was ‘the art of the possible’.
And one thing that the European Union did was make certain things possible, which otherwise were not possible.
With Gibraltar and Spain, for example, the border issue became less of an issue.
And with the island of Ireland, the border issue too became less of an issue.
Because both Ireland and the United Kingdom were both members of the European Union – and thereby both members of the internal market and customs union – a hard border, with infrastructure and bureaucracy, was unnecessary.
This created the conditions that made the Good Friday Agreement possible – though, of course, there were many other factors.
But now Brexit has come along, there is a problem.
There has to be a border somewhere where one entity is inside a pan-European internal market and customs union and the other entity is not.
Had Brexit not been so extreme – with the United Kingdom staying inside the internal market and/or the customs union (which is the position with some other non-EU states) – then the Irish border issue would be less of a problem.
But the Brexit which Theresa May insisted on, with the United Kingdom outside the internal market and customs union, meant there was going to be a problem.
May eventually realised this – and so she supported the ill-fated ‘backstop’ arrangement, which meant that – if there was no post-Brexit trade agreement – the cross-border arrangements of European Union membership would continue as a default.
But May’s proposal was rejected heavily by the House of Commons (including by ‘remain’ Members of Parliament).
That left one other option – the border in the Irish Sea, which was supported by the new Prime Minister Boris Johnson, and enshrined (ahem) in the Northern Irish Protocol.
And, as this blog has set out many times, Johnson here changed the policy, negotiated the Protocol, signed the withdrawal agreement containing the Protocol, fought a general election so as to get a mandate for the Protocol, and rushed the relevant legislation through parliament.
Johnson could have not done more, as Prime Minister, to have brought the Protocol into existence and to pass it into law.
But.
The Protocol is a solution to one problem but not to another.
It is a solution to the political problem of late 2019 where Brexit needed to be ‘done’ – and the Protocol was the only possible way to do so avoiding a hard border on the island of Ireland.
But it is not a solution to the deeper problem of how Brexit is compatible with the on-going existence of the union that is the United Kingdom of Great Britain and Northern Ireland.
Either one has Brexit (at least without continuing membership of the internal market and the customs union) or one has that union, but one cannot easily have both.
This is not to say that a united Ireland is likely – there are many solutions to political problems that never are adopted.
It may be that the problem continues, and continues, and is never resolved.
But a united Ireland is the only ultimate solution to there not being a border somewhere in respect of the north of Ireland.
Of course, special arrangements would need to be made for the non-nationalists in Northern Ireland – and one would hope that those protections serve that community better than the (lack of) protections for the nationalists in the north of Ireland after 1922.
Having watched Brexit from the beginning, I am still bewildered why supposed unionists did not see this problem coming – and indeed strongly campaigned for Brexit.
The European Union provided a means by which Northern Ireland could have continued in the United Kingdom, regardless of demographic changes and the gradual fall in unionist support.
But some forgot that politics was the art of the possible, and they pursued the politics of the impossible instead.
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As any good regulatory lawyer will tell you, ‘compliance’ is better than contravention or challenge.
The question is what can constitute compliance.
From time to time a regulatory lawyer will get a new or inexperienced regulated client who want to challenge or contravene a regulatory rule or policy.
‘Let’s go to court’,’ the novice will say, or ‘let’s tell them that we will see them in court’.
The regulatory lawyer will shake their wise head and say: ‘well, if you do this instead, then you will be complying, and then all the bother will go away’.
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Compliance is usually a better overall legal strategy than confrontation.
And with that view in mind, let us now look at the statement by the Foreign Secretary today to the House of Commons about the Northern Irish Protocol.
Instead of the statement once (notoriously) made by a cabinet minister that the United Kingdom would only break international law “in a very specific and limited way”, the Foreign Secretary said that the government would comply with international law in its new legislation:
“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 is to ‘comply’ with international law – though no doubt in a very specific and limited way.
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So much for rhetoric – on information currently available, it seems the government is threatening what it has threatened before.
The significant difference is that the government is now to threaten this while maintaining it is complying with international law rather than candidly admitting that it is seeking to break it.
It seems that the basis for this intellectual exercise in gymnastics is that the Good Friday Agreement takes priority over the protocol.
That this is the tactic is supported by the references to the Good Friday Agreement at the beginning of the statement and from statements from government supporters:
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As one Northern Irish writer put the notion of such priority in a fantasy context, there can sometimes be “deeper magic”.
What the government appears to be developing is a contention that any unilateral amendment of the Norther Irish Protocol cannot really be a breach of international law if that amendment is by reason of the Good Friday Agreement.
Of course: this is all sophistry and illusion.
The policy substance has not changed, and the proposed breach has not changed, all that has changed is that the proposal will not now be described as breaking international law.
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Yet such a rhetorical shift is possibly significant.
For it may signify that although the United Kingdom government has no fresh ideas about how to resolve the issue with the Northern Ireland Protocol, ministers may now realise that the rhetoric of challenges and outlawry is not necessarily helpful.
And, if this is the case, this could become a useful habit – for the government may find other things that can be brought under the label of ‘compliance’ that may allow it to shift its position in substance.
Smudgery and fudgery, perhaps.
And somewhere in Whitehall, a foreign office lawyer nods their head wisely.
It is all about what ‘compliance’ means, you see.
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Here are, to begin with, a couple of truths about the Northern Irish Protocol – both of which will be familiar to those who are hostile to or critical of Brexit.
First, the protocol was negotiated, signed and implemented by the Boris Johnson government – who even had changed government policy from Theresa May’s previous backstop.
Indeed, Johnson even went to the electorate for a mandate for this ‘oven-ready’ deal.
He and his government owns the protocol.
Second, triggering Article 16 will not do what the more excited media and political supporters of the government say (and perhaps think) it will do.
As this blog has previously set out, triggering the provision only means there will be talks and possible remedial measures within a narrow compass.
All because a thing can be triggered, it doesn’t make it weapon.
But.
There are other truths which those hostile to or critical of Brexit may not so easily want to admit.
For a third truth is that there is an issue not of black-letter law, but of – for want of a better word – application of the protocol.
This point is deftly summarised in a recent thread from Hilary Benn, who is hardly a fire-breathing Brexiter:
6. The key point about the Protocol is that it talks about “goods at risk” of entering the EU from Northern Ireland. This term was never defined and the task was left to the Joint Committee. I will return to this point later.
Of course, the European Union – including Ireland – are right to be concerned about maintaining the integrity of the single market.
Yet, it is less clear that that goods going to Northern Ireland from across the Irish Sea put the single market at risk – or at least at sufficient risk so as to justify the current regime of checks.
And ‘proportionality’ and ‘subsidiarity’ are, after all, concepts drawn from European Union law and policy.
In other words – without breaking (or amending) the Northern Irish protocol, a great deal of the commercial – and political friction – could be allayed – by a less strict (or more realistic) approach to concepts such as ‘at risk’.
Just because there are rules, they do not need a maximalist interpretation.
And fourth, and as this blog has averred before, Northern Irish politics do require there to be consent from both the unionist and nationalist communities.
Overall majorities are not enough.
Of course, the Democratic Unionist Party has only itself to blame for supporting Brexit – and the Johnson government – what else did they think would happen?
(And why the Democratic Unionist Party supported Brexit is a genuine mystery of the Brexit story.)
But the the practical political problem is that the protocol appears not to be supported by any elected unionist politicians.
You may think they should support the protocol – and you may be dismissive of them for not doing so – but the need for consent from both communities cannot be waved away.
So: there is a problem – of the Prime Minister’s own making and for which triggering Article 16 will not – by itself – solve.
But it is also a problem that needs to be considered flexibly and sensitively.
As this blog has said many times, not all problems have solutions.
Yet there is sometimes no alternative to seeing if there is a way forward – and such attempts should be given a chance.
It is just unlikely that a solution will come from the current government with its current bombastic silliness and confrontational gesturing.
The attitude of this government is a problem that can be solved – and as soon as possible.
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Theresa May is a far better as a former Prime Minister than she ever was as a Prime Minister.
Other living former Prime Ministers have all stepped away from the House of Commons – and have also avoided appointment to the Lords.
Hers alone is the voice of a former Prime Minister in parliament at a time of this generally dire premiership.
Her premiership was not a good one – and from her early blundering over Brexit ‘red lines’ flowed almost all of the Brexit problems the United Kingdom has since had to deal with.
(And, of course, she was a worse Home Secretary, where she instigated the vile ‘hostile environment’.)
But.
May got one thing right.
And that was – given the respective positions of the United Kingdom and the European Union – there had to be either a ‘backstop’ or a trade border down the Irish Sea.
She chose the ‘backstop’ – which, in general effect, meant that if the United Kingdom and Ireland/European Union did not agree a trade agreement, certain measures would have to be implemented in Northern Ireland in respect of cross-border trade.
That proposal failed to pass the House of Commons – indeed, those versions of the withdrawal Bill suffered one of the heaviest government defeats in parliamentary history.
The new Prime Minister Boris Johnson – in a cynical manoeuvre that must have seen very clever at the time – dropped the ‘backstop’.
As this blog has previously set out, this was very much his measure – he changed the United Kingdom policy, he negotiated and agreed a revised treaty, he got it through parliament, and he obtained a majority for it in a general election.
Johnson used every power of the Prime Minister to get this new Northern Irish Protocol through Parliament, and at speed.
Parliament was denied any real opportunity to scrutinise the measure.
And Brexit supporters clapped and cheered this splendid wheeze so as to ‘Get Brexit Done.’
They are not clapping and cheering now.
For the cost of the Brexit which got ‘done’ was the Northern Irish Protocol.
At the time, this seemed a price Brexit supporters were willing to pay.
But now they do not want to pay it.
They want it both ways – they want the United Kingdom outside of the European Union but they now want to reject the only means by which that was possible in late 2019/early 2020.
Cakes, eating, and so on.
And so it was not surprising that May took an opportunity to respond to an intervention from a Northern Irish unionist MP who opposed her ‘backstop’ in the following terms:
“Sadly the DUP and others chose to reject that.”
Former PM Theresa May tells DUP leader Jeffrey Donaldson her #Brexit deal protected the Good Friday Agreement and would have prevented a border in the Irish Sea or on island of Ireland.pic.twitter.com/glHgHgtI7K
“I put a deal before the House that met the requirements of the Good Friday agreement and enabled us not to have a border down the Irish sea or between Northern Ireland and the Republic of Ireland. Sadly, the Democratic Unionist party and others across the House chose to reject that, but it was an opportunity to have what the right hon. Gentleman wanted.”
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Had May had her way, however, there would have been alternative problems.
This is because of her early ‘red lines’ blundering, the only two withdrawal agreements available by late 2019, were the ‘backstop’ and Johnson’s calamitous clever wheeze of a border in the Irish Sea.
And this is because of the fundamental problem – that has never been addressed – of how one maintains an open border on the island of Ireland with no customs or trade infrastructure, if Northern Ireland leaves the European Union customs union and single market.
Some problems do not have solutions.
And, as this blog has also previously averred, it is not enough for those critical of Brexit (and this government’s Brexit policy) to point and jeer at the government and remind ministers that they negotiated and signed the Northern Irish protocol.
It may be satisfying, but it is not sufficient.
And any significant move in Northern Ireland does not need a mere majority, but actual consent from the nationalist and unionist communities.
This was pointed out yesterday by a unionist politician who had been opposed to Brexit:
@pmdfoster -normally supportive of your views, however, majoritarianism was replaced by Belfast Agreement. Politics in NI is based on x-community consensus. There are no, repeat no, Unionist MLA’s who support protocol. No consent so no bafflement @trussliz#UlsterUnionisthttps://t.co/m45nQvzpvH
— Dr Steve Aiken OBE (@SteveAikenUUP) May 11, 2022
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When May took office she insisted Brexit would mean Brexit.
She insisted that the United Kingdom would leave the European Union customs union and single market.
Yet a Brexit with the United Kingdom remaining within the single market was possible – and this is the basis on which other non-European nations trade with the European Union (as part of EFTA).
So she may have been right in her answer to the unionist politician yesterday.
But on a more fundamental level, she and other Brexit-supporting ministers got it very wrong.
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I was born and brought up in the Birmingham of the 1970s, and like many others I had family and family friends who could well have been killed in the Birmingham pub bombings.
There is a powerful public interest in that crime being properly investigated and those guilty being convicted.
Six innocent men were convicted for the bombings, and their prosecution and punishments was an appalling miscarriage of justice, perhaps one of the worst miscarriages of justice in English legal history.
There was a powerful public interest in that miscarriage of justice being exposed and corrected.
And the journalist (and later politician) Chris Mullin was the one who did most to expose and correct that miscarriage of justice.
What happens when two powerful public interests such as the above collide?
That was the issue before the recorder of London at the Old Bailey.
On one hand, those police officers investigating the bombings want access to materials held by Mullin.
You can see why the police would want this – especially if it would contain direct evidence that would aid a successful prosecution.
But that does not necessarily mean the police should get it.
The reason is that the material which Mullin holds was given to him on the basis of confidentiality, so that he could expose the miscarriage of justice.
Without that assurance to his source, Mullin would not have been given that information, and without that information the miscarriage of justice would not have been exposed.
And so the public interest in exposing that miscarriage of justice would have been defeated.
And in a compelling conclusion the judge holds that in this case there should not be an order for disclosure of the material.
It is unfortunate that this means that any prosecution of those guilty of the bombings will not be assisted by this material – but such a prosecution should not be at the cost of undermining the public interest in exposing a miscarriage of justice.
Not only is the judgment compelling, it also is another recent example of a judge taking Article 10 of the ECHR and the right to free expression seriously.
It is a good judgment in a difficult case, and it is recommended reading for anyone interested in practical law and policy.
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