The three–page letter sent from the attorney general’s office on 2 September marks the culmination of the government’s search for legal answers to the problems it confronts in implementing Brexit. The memo refers to the Northern Ireland protocol, which is part of the withdrawal agreement between the UK and the European Union, and the internal market bill, the bombshell legislation that ministers have been considering using to override parts of that protocol.
Somewhat euphemistically, given the gravity of what the government appears to be considering, the letter refers to a request for advice on “rule of law issues”. It summarises the views of the three law officers – the attorney general, solicitor general and advocate general for Scotland – who are required to ensure that ministers act within the law. The note is addressed to a senior Whitehall official at the Europe Legal Group, which appears to have been coordinating necessary legislative measures for the Cabinet Office and Downing Street. The letter reveals that an opinion had been submitted on 10 August by Guglielmo Verdirame QC, a professor of international law at King’s College London; Prof Richard Ekins, of Oxford University; and a more junior barrister, Richard Howell, of Brick Court Chambers. The letter responds to questions submitted earlier about the status in international law of various “proposed legislative provisions” that would govern goods entering Northern Ireland, whether export declarations are required for goods moving from Northern Ireland to Great Britain, and what constitutes state aid. The letter states the “law officers” are unanimous that UK “legislation to remove the possibility of challenge before the domestic courts, or prevent the government from complying with the rulings of EU courts, contrary to article 4 of the withdrawal agreement, would be a clear breach of the withdrawal agreement and of the UK’s international law duty to act in good faith with respect to its treaty obligations”. They also agree that there is a “risky but respectable argument” that legislation could be written to be compatible with article 4 of the withdrawal agreement so that domestic law “takes precedence over article 5 of the protocol and s.7A of the European Union (Withdrawal) Act 2018 in particular in circumstances of “serious economic, societal or environmental difficulties that are liable to persist, or to a diversion of trade”. On constitutional questions, the law officers concur that “parliament is sovereign as a matter of domestic law and can pass any legislation it sees fit, including legislation which results in the UK contravening its international obligations under treaties or customary, international law. “Ministerial support for such legislation would not be contrary to domestic law, but the legislation, if enacted, would self-evidently be contrary to the UK’s obligations under international law. In our view, ministers would not be acting contrary to the constitutional principle of the rule of law in proposing or supporting such legislation. Neither would parliament be acting unconstitutionally in enacting it.” Where Richard Keen, the advocate general for Scotland, parts company with the attorney general, Suella Braverman QC, and the solicitor general, Michael Ellis, is over the responsibilities imposed by the ministerial code. In existence since 1997, but refreshed and amended periodically by new governments, the code sets out the standard of conduct expected of ministers. In 2010 the code stated there was an “overarching duty on ministers to comply with the law, including international law and treaty obligations, and to uphold the administration of justice and to protect the integrity of public life”. It was rewritten under David Cameron’s Conservative administration to state only that there was an “overarching duty on ministers to comply with the law and to protect the integrity of public life”. A challenge was brought alleging that it had not been debated in parliament and was illegal. In 2018, the government defeated that judicial review in the court of appeal. In that judgment, the court nonetheless found that despite the change in the wording, the “overarching” duty to comply with the law included international law and treaty obligations. Different readings of the code surface in the letter from the attorney general’s office. “The law fficers do agree that the [ministerial] code itself does not carry the force of law, is not enforceable in the courts, and does not pose a legal bar to action,” it says. “However, the law officers differ as to the interpretation of the underlying constitutional conventions. “It is the opinion of the advocate general for Scotland 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 his opinion, that includes the obligation under international law to act in good faith with respect to the UK’s treaty obligations. “In contrast, the attorney general and solicitor general are confident that there is a strong legal basis, supported by authorities, which separate the rule of law into its domestic and international spheres. In their view, the reference to ‘law’ in the ministerial code can only be a reference to UK law and UK constitutional principles.” As such, Braverman and Ellis viewed ministerial obligation under the code “as only relating to compliance with the rule of law as a matter of UK law”. There is “strong precedent”, they claim, for the UK government passing legislation “in breach of treaty obligations”. They cite the government’s response to the European court of human rights ruling on prisoner voting. (That long-running disagreement was conducted through the Strasbourg court’s normal dispute procedure and eventually resolved.) They give other examples of “legislative treaty override”, such as the Finance Act 2013, which “contained provisions which expressly disapplied international tax treaties”. (George Osborne has challenged that view, saying all parties agreed to the changes). Canada’s 2018 law legalising cannabis “in direct breach of various international narcotics treaties” was given as another example. The letter concludes that “parliamentary sovereignty” trumps all other legal matters. “All law officers agree that it is an established principle of international law that a state, acting through its executive government, is obliged to discharge its treaty obligations in good faith. This is, and ought to remain, the key principle in informing the UK’s approach to international relations. “However, in the difficult circumstances in which we find ourselves, the attorney general and solicitor general consider it is important to remember that an established principle of international law is subordinate to the much more fundamental principle of parliamentary sovereignty.”