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Senior Conservative MPs and a number of legal experts have urged the government not to go ahead with plans to push for a change to the Brexit deal on Northern Ireland after a minister admitted it would violate international law.
The notable admission of Brandon Lewis, Northern Ireland’s Secretary of State, followed the resignation of the highest-ranking legal officer and has raised questions about the future of Attorney General Robert Buckland and Attorney General Suella Braverman, who have taken oaths to uphold the rule of law.
His positions came into the limelight after the departure of Sir Jonathan Jones, who is believed to have been exasperated because ministers tried to ignore his advice that any changes to the new internal market law would likely be illegal.
The Guardian understands that the government sought independent legal advice from a prominent lawyer, whose advice coincided with Jones’, but his views were overruled by ministers.
An EU diplomat suggested that the minister’s admission that the UK was prepared to violate international law could have an immediate impact on the current talks in London between UK chief negotiator David Frost and Michel Barnier of the European Union.
“If true, it would be a severe blow to the UK’s international reputation and would have huge negative consequences in the current talks with the EU,” the source said.
“It would be in Britain’s best interest to clarify its plans now, urgently, and to assure the EU that it will continue to honor its commitments under the withdrawal agreement in all circumstances. Who would want to reach trade agreements with a country that does not implement international treaties? Ultimately, it would be a counterproductive strategy. “
The Guardian has been told that Jones, the head of the UK government’s legal department, disagreed with Braverman’s initial interpretation of the legal implications of a no-deal Brexit.
This raised questions about whether the government’s plans to overturn the Brexit withdrawal agreement violated the ministerial code, which required ministers to follow the law, including international law.
A Whitehall source said Jones was also aware that breaking the law would be a violation of the civil service code, which he is expected to adhere to.
Jones’s departure came just hours before Lewis surprised the House of Commons.
He told MPs: “Yes, this violates international law in a very specific and limited way. We are taking the powers of this to apply the concept of direct effect of EU law … in certain very strictly defined circumstances. “
Former Prime Minister Theresa May questioned whether Johnson was putting the UK’s international reputation at risk. “How can the government assure future international partners that the UK can be trusted to comply with the legal obligations of the deal itself,” he said in an exchange with Lewis.
Angry Conservative MPs have urged the government to reconsider pursuing a violation of international law, including the Conservative chairmen of three select committees.
Bob Neill, chair of the justice selection committee, said: “Any breach, or possible breach, of the international legal obligations that we have assumed is unacceptable, regardless of whether it is ‘specific’ or ‘limited’. Adherence to the rule of law is not negotiable. “
Tom Tugendhat, chairman of foreign affairs, and Tobias Ellwood, who chairs the defense committee, also expressed concerns. Tugendhat said: “Our entire economy is based on people’s perception of the UK’s adherence to the rule of law. I hope it is clear what my position is on this. “
Other public critics included veteran Tory Roger Gale, who said attempts to rewrite the protocol “will be viewed worldwide as an act of bad faith.”
Former Minister George Freeman said the supreme court would be “preparing to remind ministers that intentionally breaking the law, even in a very specific and limited way, is, well, illegal.”
Lord Falconer, the shadow attorney general, said that the positions of Braverman and Buckland, as members of a government that has admitted it intended to break the law, but had taken an oath to uphold the rule of law, now should be questioned.
Dinah Rose, attorney and president of Magdalen College, Oxford, said: “If an attorney advises a client that a particular act would be illegal, but the client insists on doing so anyway, the attorney cannot continue to represent that client. The attorney is professionally embarrassed and must resign. I’m sure Robert Buckland knows. “
Government sources claimed that the measure would not violate the ministerial code because the obligation of ministers to comply with international law was removed from the guide in 2015 by David Cameron, although they admitted that there was some disagreement on the interpretation.
However, legal experts, including Lord Anderson, a former terrorism watchdog and member of the House of Lords justice committee, said the code still required ministers to respect international law following a ruling by the court of appeals in 2018, which concluded that there was a “general” duty of ministers. to comply with international law.
It is understood that Lewis was not wrong in the Commons and senior government officials had decided it was better to be honest that the plans would violate international law, rather than a stone wall.
Jones becomes the sixth senior Whitehall figure to resign in recent months, including Cabinet Secretary Mark Sedwill, Permanent Secretary of the Foreign Office Simon McDonald, and Jonathan Slater of the Department of Education. Sir Philip Rutnam, former permanent secretary of the Home Office, has initiated legal proceedings against the department for constructive dismissal.
Conservative pro-Brexit MPs stepped up their own lobbying on Tuesday, urging Johnson to go further and ditch the EU withdrawal deal entirely if no trade deal was reached, claiming they were promised to do so before pass the bill in January.
Sir Bernard Jenkin, who chairs the steering group for the Hard Brexit Conservative Parliamentarians’ European Inquiry Group, said the group of parliamentarians that destroyed May’s deal had only voted in favor of Johnson’s because they had been assured the government would leave. the agreement if a trade agreement with the European Union was not reached.
“We made it clear, however, that this agreement was barely ‘tolerable’ and we only voted in favor of the guarantees given by the government: that it was only a starting point for negotiations; which would be replaced by a full TLC [free trade agreement]; and, if necessary, it could be repudiated, ”he wrote in Diplomat magazine.
A Downing Street spokesman said they “remain committed to the implementation of the withdrawal agreement and the Northern Ireland protocol” regardless of whether an agreement was reached.
