A behind–the–scenes rift has emerged between the government’s top legal advisers over the legality of the decision to bring legislation that overrides the EU withdrawal agreement.
Legal advice contained in a three–page letter marked “official – sensitive”, seen by the Guardian, summarises the legal opinions of the government’s three law officers, whose role includes ensuring ministers act in accordance with the law.
The letter appears to show that Richard Keen, the advocate general for Scotland, advised that ministers would be breaching the ministerial code if they defied international law.
The attorney general, Suella Braverman, and solicitor general, Michael Ellis, disagreed with their fellow Conservative minister, arguing the code applies only to UK law, according to the letter.
The advice of all three law officers was summarised in the letter, which was sent by the attorney general’s office to a senior Whitehall official on 2 September.
It states that all three law officers agreed that the UK internal market bill, which seeks to override portions of the Northern Ireland protocol in the event of there being no trade deal with the EU, would amount to a “clear breach” of the withdrawal agreement and international law.
Their language appears stronger than that used by the Northern Ireland secretary, Brandon Lewis, when he told MPs this week that the government’s legislation would break international law “in a very specific and limited way”.
The government’s decision to bring legislation that would override parts of its agreement with the EU has thrown the ongoing trade talks into crisis, 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 draft legislation, warning that it had seriously damaged trust.
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 the internal market bill and Northern Ireland protocol. The document summarised some of the issues covered in the 2 September letter, but did not disclose the differences between Lord Keen and the other law officers over the ministerial code.
The revelation of a backroom disagreement over the ministerial code – which stipulates an “overarching duty on ministers to comply with the law” – could prove particularly damaging to Boris Johnson’s government.
The legal advice is understood to have been shared with a select group of officials and cabinet ministers, meaning other government ministers were potentially unaware of the risk the legislation could pose to their compliance with the code.
The letter summarises the legal opinions of all three officers, and explains where Braverman and Ellis parted company with Lord Keen, who is the Ministry of Justice’s spokesperson in the Lords.
In a crucial passage, the letter states: “Whilst there is no dispute between law officers that parliamentary sovereignty embraces the power to pass legislation that is contrary to international law, they do differ on whether ministers can propose such legislation in compliance with the ministerial code.
“The law officers do agree that the code itself does not carry the force of law, is not enforceable in the courts, and does not pose a legal bar to action. However, the law officers differ as to the interpretation of the underlying constitutional conventions.”
It continues: “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.”
Braverman and Ellis argued that the code refers only to “UK law and UK constitutional principles”. The letter adds: “On this established view it would be both lawful and constitutional for a minister to introduce legislation that was in breach of international obligations”.
The letter was addressed to a senior official in the Government legal department, the head of which, Sir Jonathan Jones, resigned this week amid speculation he objected to the course of action being pursued by Downing Street.
The thrust of the advice from the law officers is understood to have been relayed last week to the six members of the cabinet 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 trenchant in her support of Downing Street’s proposed legislation, telling colleagues the ministerial code was no obstacle because it was not legally enforceable and, in any event, could be unilaterally amended by the prime minister.
She and Ellis are understood to have been considering these issues since late July. In mid-August they sought legal opinions over “the rule of law issues” from external counsel named in the letter as Guglielmo Verdirame QC, Richard Howell and Prof Richard Ekins.
Elsewhere in the letter, the law officers agree that “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”.
Explaining how such a breach could be legally justified, the letter explains: “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.”
Despite his apparent reservations about the code relayed in confidential legal advice, Keen was vocal in his defence of the government’s position when responding to questions in the Lords about the internal market bill.
“We are not showing scant regard for our treaty obligations,” he said. “We are endeavouring to allow for a contingency that may arise very soon which will require us to ensure that we can discharge our obligations to Northern Ireland.”
He added: “From time to time tensions do occur between domestic legal obligations and international law. It’s not unprecedented for legislation passed by this parliament to cut across obligations undertaken at the level of international law. Domestic legislation does prevail.”
The three senior law officers did not provide a comment individually but their spokespeople said their response was included in the Cabinet Office statement posted online.
• This article was amended on 11 September 2020 to clarify the law officers’ response to the Guardian.
