Not least because he was appointed to an impossible position.
As this blog has previously averred, the entire scheme of the Ministerial Code, with an advisor on ministers’ interests, was a constitutional nonsense.
This is because such a code and such an adviser provided no actual check or balance on the power of the Prime Minister.
The code and the adviser only has the power which the Prime Minister of the day allows it to have.
And like most forms of supposed ‘self regulation’ it was in fact an absence of regulation.
It was a cloak for sheer prime ministerial power, and not any counter to it.
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.
*
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.”
*
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.
*
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.
*
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:
*
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.
*
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:
*
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.
*
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”.”
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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.
*
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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Just a short post today, as I have not yet finished the longer post I had intended to publish here.
Over at Prospect magazine I have done a post about something I knew about our recent political history, but had not really thought about until this week’s political excitement.
This is the fact very few Prime Ministers follow what one might have assumed to be the classic model of taking power at one general election and losing power at another.
Indeed, since 1974 no Prime Minister has done both.
Every single Prime Minister has either taken power without a general election – Callaghan, Major, Brown, Johnson – or left office without a general election – Wilson, Thatcher, Blair, Cameron.
May – remarkably – did both, taking and losing office without a general election, and also managing to lose a general election in the middle.
Going further back, it is still rare – and ever since the extension of the franchise, few Prime Ministers have taken power at one general election and lost power at another – the obvious examples are Gladstone, Disraeli, Attlee and Wilson (1964-70), but it is difficult to think of others.
This demonstrates, I think, that we do not have a presidential system either in substance or in form, despite what some hubristic politicians think.
I also aver – but I may be wrong – that it shows a strength of our uncodified constitution.
Because the office of Prime Minister has little formal definition, it is what its occupant makes of it and what their colleagues allow them to make of it.
And so when a Prime Minister becomes weak, they become correspondingly politically exposed.
Of course, other parliamentary democracies have Prime Ministers come and go between general elections while having a codified constitution.
But I wonder if it is more marked in the United Kingdom.
Perhaps the explanation is mundane:
What that really comes down to is every second PM from Wilson on leaving between GEs. Once you have that, each of their successors has to come to power between GEs as well.
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”.
There are other examples from this government:
…and like rewriting the Commons rule book after Owen Paterson repeatedly broke lobbying rules
…and like watering down the rules so MPs like Johnson don’t lose their jobs when they breach Ministerial Code
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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This is because constitutional law provides for the parameters of normal political action – and so when those parameters are being frequently contested or transgressed, then that indicates something is wrong with the body politic.
Since 2016, the constitutional law of the United Kingdom has been continuously, relentlessly exciting.
And today we have the extraordinary situation of the current Prime Minister facing a no confidence vote in his party leadership from his own backbenchers.
Let us unpack this remarkable situation and work out what is happening (and not happening) and what may happen next (or not happen next).
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We can start with a document disclosed over the long jubilee weekend:
Tory MPs who want Johnson out have this weekend been circulating a briefing document setting out why. It warns the party is on course to lose the next election & concludes “the only way to end this misery, earn a hearing from the British public… is to remove Boris Johnson as PM” pic.twitter.com/XxiCqqiILR
This is the most well-written and well-structured and most thought-through document from any Conservative politician in years.
Conservative politicians can do it when they need to do so.
It just goes to show what can really matter to them.
And it is interesting and significant what is contained in this document, and what is not.
You will see that the content is entirely about party advantage.
This makes sense, in a way, for a vote of confidence in a party leader is about them as a party leader.
And not about them – at least directly – as a prime minister.
Let us now go to another document, which was published earlier today.
This is the Downing Street’s attempt to counter the document above:
NEW: Being circulated by no10 ahead of tonight’s vote – leadership contest would “unleash a distracting, divisive and destructive civil war in the Conservative party… dominating the agenda and alienating voters” 🔥 pic.twitter.com/ll0ZIOZ02V
The underlining and italics suggest desperation – and we should be glad there has been no resort yet to BLOCK CAPITALS.
Putting these two documents together tells you a great deal about the state of the governing party – and of the states of mind of those involved.
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And now, a third document.
This is a letter to the Prime Minister from Jesse Norman, a former minister with a serious interest in constitutional matters:
I have supported Boris Johnson for 15 years, for the London Mayoralty and for PM. Very sadly, I have written to him to say I can no longer do so, for the reasons set out below. pic.twitter.com/0Mjs4hjeSF
I have a lot of time for Norman – he is the author of good books on Adam Smith and Edmund Burke as well as of this delightful online memoir of his late father-in-law, the great judge Tom Bingham.
So much time do I have for him on constitutional issues that I found it surprising – and disappointing – that he did not join Lord Keen in resigning from the government when it was proposed that primary legislation be enacted so as to enable the government to break the law.
Norman soon lost his ministerial job anyway.
His letter sets out the policy – as opposed to the partisan – basis for removing Johnson as party leader and as Prime Minister.
The case could hardly be put better from a Conservative perspective.
But.
Two things.
First, there is little in Norman’s letter that was not true last week – or indeed last month, or even last year.
And second, today’s vote is about confidence as a party leader, rather than as Prime Minister – and one suspects that if there were to be a formal House of Commons vote of confidence as Prime Minister, Norman may not vote with the opposition.
Yet such counterpoints aside, Norman’s letter is important and it is good and welcome that it has been written at all.
It certainly shows that detailed and reasoned critique of the Prime Minister can be made from a Conservative perspective.
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And now another document – the resignation letter of the anti-corruption ‘tsar’ (and please can we abandon the ‘tsar’ title):
I’m sorry to have to resign as the PM’s Anti-Corruption Tsar but, after his reply last week about the Ministerial Code, it’s pretty clear he has broken it. That’s a resigning matter for me, and it should be for the PM too. Here’s my letter to him explaining why. pic.twitter.com/0Wi6QWsMbI
This is a critique from a third perspective – to join the partisan and policy perspectives set out above.
Here the primary complaint is that the Prime Minister was in fundamental breach in terms of his accountability as a leader.
This ties in with the issue set out in a recent post on this blog about the meaning – and meaninglessness – of ‘taking full responsibility’ as an evasive rhetorical act but nothing else.
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These letters provide some heavy firepower – from three perspectives the case against the current Prime Minister is compelling.
Yet these letters are not enough to remove him.
It may well be that today’s vote is not even enough to remove him, at least as Prime Minister.
As I have set out elsewhere today, it is conceivable – indeed, plausible – that even if Johnson loses today’s vote, he will seek to stay on as Prime Minister.
There is no formal mechanism to get rid of him, and – following the 1975 Australian political crisis – the Queen is unlikely to top her jubilee weekend with a sacking on the back of just a party vote.
It would take a vote of no confidence of the House of Commons in Johnson as a Prime Minister – and even if he lost that, he could seek a general election.
And the mere threat of calling such an election may well mean that he will not lose – perhaps even face – such a parliamentary vote.
We have the makings of a political and constitutional crisis.
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Some political opponents say that it would be better for Johnson to survive as Prime Minister, so that he can be decisively defeated at a general election.
This would be so Johnson and his brand of politics is not only defeated, but seen to be defeated.
There is merit in that idea – a general election reversing the mandate of the 2019 general election.
But such an approach is risky – especially given Johnson’s survival skills as a politician.
It would also mean that the constitution faces two more years of the strains and contortions of dealing with a Johnson premiership.
It may well be that the constitution will not be able to cope.
So the more prudent action would be for Johnson to somehow go now,.
Our uncodified constitution has many faults – and detractors – but it is adept at allowing the removal of Prime Ministers between general elections as well as at general elections.
In my lifetime, Wilson, Thatcher, Blair, Cameron and May all were replaced between general elections – and, even further back, so were Asquith, Churchill, Eden, and Macmillan.
It is quite normal – constitutionally speaking – for a Prime Minister to be replaced mid-term.
But one problem with an uncodified constitution, however, is that it can depend on voluntary compliance with conventions and precedents.
Johnson is a one-person walking negation of such a principle.
And so we are likely to have an exciting week, constitutionally speaking.
Brace, brace.
**
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The first is that the United Kingdom has little manufacturing industry and few natural resources.
Many of the manufactured goods we buy are from abroad, as is much of the energy we consume.
The second is that non-tariff barriers impede any international trade in services.
This means that if there are, for example, shared standards and harmonised recognition schemes then selling services abroad will be easier than if there are not such non-tariff barriers.
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Bearing these propositions in mind, let us now look at a tweet from Tom Tugendhat, the chair of the House of Commons select committee and seen by many as the most sensible possible alternative Prime Minister in the current governing party.
Tugendhat is criticising a proposal from another Conservative politician, Tobias Ellwood:
Tobias is wrong. The Single Market puts the EU in charge: – EU rules – open borders – no new trade deals
We need a deal British people control not foreign laws with no say.
Let’s plan for the future and stop looking back. This decision is made. https://t.co/4mil6BXWNx
Tugendhat’s tweet is worth thinking about, for it is significant.
One obvious point is that his tweet confuses the Single Market with the Common Commercial Policy, that is the European Union’s common trade policy.
They are distinct things – and it is possible to be part of the Single Market and still have an independent trade policy (and thereby ‘new trade deals’) – as the example of Norway demonstrates.
Another point about Tugendhat’s tweet is that it frames shared standards and harmonised recognition scheme as “EU laws” in respect of which the “British people” will have “no say”.
From a commercial – as opposed to a political – perspective those seeking to trade with our European Union neighbours still have to comply with Single Market rules over which they have “no say”.
It is just that such exporters now have added layers of bureaucracy – non-tariff barriers – to deal with so as to show that they comply with Single Market rules.
This is because the purpose of the Single Market was to remove such impediments and so, by now being outside of the Single Market, such impediments are restored.
The Single Market. of course, was driven through (in its current form) in the late 1980s by then Prime Minister Margaret Thatcher and the Conservative European Commissioner Lord Cockfield.
The Single Market may be the greatest achievement of Thatcher and her governments, at least in respect of what then became the European Union.
At a stroke, any trader in a member state could trade in another member state because of shared standards and harmonised recognition schemes.
Again, from a commercial perspective, the important thing about shared standards and harmonised recognition schemes is not their political origin, but that they exist.
And other European countries that are not members of the European Union are part of the Single Market.
There is no absolute reason why a post-Brexit United Kingdom could not also be part of the Single Market.
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But.
There is the question of influence and control.
Yet what is often missing in discussions about the future relationship of the United Kingdom with the European Union, is that shared standards and harmonised recognition schemes are necessarily outside the unilateral, absolute control of one ‘side’.
It would be completely open to the European Union and a post-Brexit United Kingdom to agree processes and policies by which both parties can agree to put in place shared standards and harmonised recognition schemes.
And to accept common positions on, say, competition law, state aid and public procurement, and consumer protection.
But without such engagement, our services-dominated economy will be increasingly estranged from European markets from Iceland to Cyprus, and from Finland to Malta.
In other words, we need to have a serious post-Brexit conversation about how the United Kingdom can be part of the Single Market so as to remove the non-tariff barriers to our service-dominated economy.
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To his credit, Tobias Ellwood wants that serious conversation.
Any wise supporter of the government should welcome such a contribution, as this conversation needs to take place.
Even if a government-supporter disagrees with what Ellwood actually says, a prudent government-supporter should respond positively to this attempt to move the conversation forward.
But, no.
The reaction from government-supporters shows we are still trapped in the toxic politics of Brexit.
As this Guardian article describes:
“A Tory MP and arch critic of Boris Johnson has sparked a backlash from Brexiters after suggesting Britain rejoin the EU’s single market to help ease the cost of living crisis.
“Tobias Ellwood’s comments were seized upon by allies of the prime minister as evidence that deposing Johnson would threaten the country’s more distant relationship with Brussels.”
It would appear that Brexit true-believers regard such thinking as somewhere between blasphemy and heresy, if not outright heathenism.
But, as the former army officer Ellwood expressly states:
“If an army general, mid-battle, is mature enough to finesse his strategy to secure mission success, then government should do the same. Let’s have the courage to dare to make operational amendments as we seek to leverage greater success.”
This is the sort of sane pragmatism that would make Ellwood the sort of captain you would want in the trenches in charge of those you care about.
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Now we come back to Tugendhat’s tweet and why it is significant.
Tugendhat could have not tweeted on this topic at all, or he could have tweeted that he welcomed this contribution to this important debate, or even that Ellwood made a good point that should be considered even if to be rejected.
But, no.
Tugendhat tweeted this instead:
Tobias is wrong. The Single Market puts the EU in charge: – EU rules – open borders – no new trade deals
We need a deal British people control not foreign laws with no say.
Let’s plan for the future and stop looking back. This decision is made. https://t.co/4mil6BXWNx
There is nothing in Tugendhat’s tweet that shows he had actually read Ellwood’s article before tweeting about it.
And, as noted above, the third bullet point of Tugendhat’s tweet – ‘no new trade deals’ – is irrelevant, as being part of the Single Market does not prevent an independent trade policy.
So why tweet?
As there is not evidence of Tugendhat having actually read Ellwood’s article, and as there is evidence that Tugendhat does not understand that being part of the Single Market does not stop new trade deals, there must be another reason.
And that reason, of course, is politics – and that is why the tweet is significant.
It signifies that politically we cannot yet move on from Brexit.
We cannot discuss our post-Brexit relationship with the Single Market as that would somehow negate Brexit itself.
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I responded to the tweet as follows:
To which Tugendhat, in turn, responded:
The single market without having a say doesn’t work. EU leaders have a responsibility to benefit their own industry and write the rules to achieve that.
With having a say is called rejoining the EU. That’s another revolution.
The fact that the United Kingdom should become part of the Single Market does not, of course, mean that we will ever do so – even if the economic and commercial advantages are stark.
And accommodation with the European Union over the Single Market certainly does not require re-joining the union.
But it does require leadership, realism and strategic negotiation, so as to build up joint structures and processes where the United Kingdom and European Union can develop their post-Brexit relationship.
In essence, the sort of leadership the United Kingdom will need from whoever succeeds the current Prime Minister.
But the problem is that we still have to pretend otherwise.
Just like we have to pretend it is a good idea to have a futile ‘war on drugs’, we have to pretend it is somehow not in our national interest to be part of a Single Market with almost every European country between Iceland and Cyprus, and between Finland and Malta.
The critical political question is how we manage to be part of the Single Market from the outside of the European Union.
(And I do not support the United Kingdom rejoining the European Union, and there is no reason to believe the European Union would have the United Kingdom back as a member state.)
It can be done, but it will be difficult – with (genuinely) tough decisions and a need for (genuine) leadership.
But the politics of Brexit and of our current Prime Minister means that even in 2022 we cannot yet have this adult discussion.
And that is the tragedy of our post-Brexit politics.
Indeed, the tragedy is that we do not yet have post-Brexit politics – we are still stuck in the politics of Brexit.
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When I was young I had a book about Kings And Queens which influenced me more than I realised at the time.
I still have the book, and it is in front of me as I type this post.
I can see it was published in 1980 by “The Leisure Circle”, which I think was a mail order book club to which my Nan and Grandad belonged.
The author was David Piper, who Wikipedia tells me was a museum curator and former director of the National Gallery.
And this makes sense, for although the history in the book was thin, the portraits and other art are wonderful.
Two images of the Queen stand out.
The first is this by Sir James Gunn from 1950, before she was Queen:
The second is once very popular portrait from 1955 by Pietro Annigoni, three years into her reign:
I keep this book to hand over forty years later as it reminds me that there is something about monarchy – and especially its visual rhetoric and cultural significance – that can and will never be captured by constitutional lawyers and political theorists.
This aid-to-memory, however, is not just because of the magnificent artwork collected in the book, but because of a particular picture which Piper placed in his introduction that has had more influence on my understanding of monarchy than any treatise or case report.
The picture is this from 1840, and it is by the novelist William Makepeace Thackeray:
“Strip away the paraphernalia of dominance – not just the garments but also the symbolism and the rhetoric and the concepts – and you just ultimately have people.
“A great deal of what we posit as politics and law – almost all of it – exists only in the mind.”
And this is true.
But.
You are a poor commentator on law and policy if you regard the paraphernalia as having no value.
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Of course, many sensible people would prefer a republic to a monarchy, and would prefer an elected head of state to a hereditary one.
These sensible people will often justify their preferences by reference to first principles of democracy and legitimacy.
And I too am a republican, though not a militant one.
But there are aspects of law and policy, and of constitutions and political identity, that do not lend themselves to rational understanding.
The celebrations for the platinum jubilee over the current long bank holiday weekend will either irk or dismay many who have strong interests in law and policy and constitutional reform.
Yet those celebrating our part of our polity too – and any attempt to reconfigure the polity without regard to the sentiments of royalists will be a botched exercise in constitutional reform.
As the greatest of all English writers on the constitution, Walter Bagehot, averred, some parts of the constitution are efficient, and others are not.
Bagehot quaintly called the non-efficient elements “dignified” – and, yes, views will differ as to whether that is still the right word, given the antics and worse from members of the wider royal family.
But the job for those who want a republic is to come up with something new that has similar cultural purchase on the governed as the monarchy appears to have on many of the governed now.
Otherwise any new republic may not last long enough to celebrate its own platinum jubilee.
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