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A behind-the-scenes rift has emerged between the government’s top legal advisers on the legality of the decision to introduce legislation to nullify the EU withdrawal agreement.
The legal advice contained in a three-page letter marked “official – sensitive”, seen by The Guardian, summarizes the legal opinions of the three government law officers, whose role includes ensuring that ministers act in accordance with the law. .
The letter appears to show that Richard Keen, Scotland’s counsel general, warned that ministers would be violating the ministerial code if they defied international law.
Attorney General Suella Braverman and Attorney General Michael Ellis disagreed with their fellow Conservative minister, arguing that the code applies only to UK law, according to the letter.
The advice of the three law enforcement officers was summarized in the letter, which was sent by the attorney general’s office to a senior Whitehall official on September 2.
It states that the three law enforcement officers agreed that the UK’s internal market bill, which seeks to override parts of the Northern Ireland protocol in the event there is no trade agreement with the EU, would amount to a “clear violation “of the withdrawal agreement. and international law.
His language seems stronger than that used by Northern Ireland Secretary Brandon Lewis when he told MPs this week that the government’s legislation would violate international law “in a very specific and limited way.”
The government’s decision to enact legislation that would nullify parts of its agreement with the EU has sparked a crisis in ongoing trade talks, prompting Brussels to plan legal action that could lead to financial and trade sanctions.
The EU said the UK had until the end of the month to withdraw the bill, warning that it had seriously damaged confidence.
On Thursday, two hours after The Guardian contacted the government for comment, the Cabinet Office posted online what it described as its “legal position” on Ireland’s internal market bill and protocol. from North. The document summarized some of the issues covered in the September 2 letter, but did not reveal the differences between Lord Keen and the other legal officers over the ministerial code.
Disclosure of a secret disagreement over the ministerial code, which stipulates a “primary duty of ministers to comply with the law,” could prove particularly damaging to the Boris Johnson government.
It is understood that the legal advice was shared with a select group of cabinet ministers and officials, meaning that other government ministers were unaware of the risk the legislation could pose to their compliance with the code.
The letter summarizes the legal opinions of the three officers and explains where Braverman and Ellis parted ways with Lord Keen, who is the spokesman for the Ministry of Justice in the Lords.
In a crucial passage, the letter reads: “While there is no dispute among law enforcement officials that parliamentary sovereignty encompasses the power to pass legislation that is contrary to international law, they differ on whether ministers can propose such legislation accordingly. with the ministerial code.
“Law enforcement officers agree that the code itself does not have the force of law, cannot be enforced in court, and does not represent a legal barrier to action. However, law enforcement officers differ in their interpretation of the underlying constitutional conventions. “
He continues: “Scotland’s Advocate General is of the view that the terms of the Ministerial Code expressly reflect a constitutional convention that ministers shall act in accordance with the rule of law, which in his view includes international law. In their view, this includes an obligation under international law to act in good faith with respect to the UK’s treaty obligations.
“On the contrary, the attorney general and the attorney general trust that there is a solid legal foundation, backed by the authorities, that separates the rule of law in their national and international spheres.”
Braverman and Ellis argued that the code refers only to “the law of the United Kingdom and the constitutional principles of the United Kingdom”. The letter adds: “According to this established opinion, it would be legal and constitutional for a minister to introduce legislation that violates international obligations.”
The letter was addressed to a senior official in the government’s legal department, whose boss, Sir Jonathan Jones, resigned this week amid speculation that he objected to the course of action Downing Street was taking.
It is understood that the momentum from the law enforcement council was relayed last week to the six members of the cabinet’s EU exit strategy committee, chaired by the prime minister and including Braverman and the Cabinet Office minister. , Michael Gove.
Braverman is said to have been blunt in his support of Downing Street’s proposed legislation, telling his colleagues that the ministerial code was not an obstacle because it was not legally enforceable and, in any case, could be unilaterally amended by the prime minister.
It is understood that she and Ellis have been considering these issues since the end of July. In mid-August, they solicited legal opinions on “rule of law issues” from outside attorneys named in the letter such as Guglielmo Verdirame QC, Richard Howell, and Professor Richard Ekins.
Elsewhere in the letter, law enforcement officials agree that “legislation that eliminates the possibility of challenge before national courts or that prevents the government from complying with the decisions of the EU courts, contrary to article 4 of the withdrawal agreement, would be a clear violation of the withdrawal agreement and the UK’s duty under international law to act in good faith with respect to its contractual obligations ”.
Explaining how such non-compliance could be legally justified, the letter explains: “All law enforcement officials agree that it is an established principle of international law that a state, acting through its executive government, is bound to comply in good faith. with treaty obligations. This is, and should remain, the key principle in informing the UK’s approach to international relations.
“However, in the difficult circumstances we find ourselves in, the attorney general and attorney general consider it important to remember that an established principle of international law is subordinate to the much more fundamental principle of parliamentary sovereignty.”
Despite his apparent reservations about the code relayed in confidential legal advice, Keen spoke out in his defense of the government’s position when answering questions from the Lords about the domestic market bill.
“We are showing little regard for our treaty obligations,” he said. “We are striving to take into account a contingency that may arise very soon and that will force us to ensure that we can meet our obligations to Northern Ireland.”
He added: “From time to time tensions occur between domestic legal obligations and international law. It is not unprecedented that the legislation approved by this Parliament eliminates the obligations assumed at the level of international law. National legislation prevails ”.
The Attorney General’s Office and the Ministry of Justice did not respond to requests for comment.
