Thursday, 17 September 2020

Scotland's Advocate General resigns ~ Internal Market Bill furore

Lord Keen of Elie QC was Advocate General for Scotland from 29 May 2025 to 16 September 2020. His resignation letter states that over the past week he had found it increasingly difficult to reconcile what he considered to be his obligations as a Law Officer with the policy intentions in the UK Internal Market Bill. 

He stated - "I have endeavoured to identify a respectable argument for the provisions at clauses 42 to 45 of the Bill but it is clear that this will not meet your policy intentions." He concluded by saying - "Your government faces challenges on a number of fronts and I fear that the UKIM Bill in its present form will not make these any easier."

During the House of Commons debate of 8 September, Sir Robert Neill QC MP

asked Mr Brandon Lewis (Secretary of State for Northern Ireland) - "The Secretary of State has said that he and the Government are committed to the rule of law. Does he recognise that adherence to the rule of law is not negotiable? Against that background, will he assure us that nothing that is proposed in this legislation does, or potentially might, breach international legal obligations or international legal arrangements that we have entered into? Will he specifically answer the other point: was any ministerial direction given?"

The Secretary of State for Northern Ireland (Mr Brandon Lewis MP) replied - "I would say to my hon. Friend that yes, this does break international law in a very specific and limited way."

One might have thought that was a clear answer to a clear question. International law would be breached.

Naturally, that raised a number of questions including whether the Ministerial Code required Ministers to adhere to international law and also the position of the Law Officers of the Crown. As the Law Society Gazette pointed out (11 September) - "Despite concerns over the UK’s adherence to the rule of law, justice minister Lord Keen of Elie and Attorney General Suella Braverman defended their continued roles in government."

The Secretary of State for Justice and Lord Chancellor (Mr Robert Buckland QC MP) - BBC News 13 September - defended the plans to potentially override the Withdrawal Agreement as an emergency Brexit "inusrance policy."  He told the BBC he hoped powers being sought by ministers in the Internal Market Bill would never be needed, as a solution could be found with the EU  He said he would resign if the UK ended up breaking international law "in a way I find unacceptable" but he made clear he did "not believe we will get to that stage."  The Lord Chancellor takes an oath to "respect the rule of law."

Lord Keen offered a legal argument that the Bill does not breach the withdrawal agreement. He can be seen offering this opinion in his evidence to the EU Security and Justice Committee on 15 September 2020.

In a House of Lords chamber debate (15 september) on the Role of the Law Officers this somewhat brutal exchange took place - 

Lord Falconer of Thoroton

"The key characteristic for law officers is not brains—they can get all the advice they want from the English Bar or the lawyers—but backbone. The Secretary of State for Northern Ireland confirmed that a breach of international law would be caused by the passage of the United Kingdom Internal Market Act under Article 4 of the withdrawal agreement.

The Advocate-General produced a load of rubbish to the EU withdrawal committee this morning when he said that Article 16 justified saying that it was not a breach. The party that changes its story on the law—as this Government do—shows it lacks backbone. How does the Advocate-General feel able, consistent with personal honour and professional duty, to remain as Advocate-General?"

Lord Keen of Elie

"My Lords, let us be clear that I have satisfied myself as to the correct legal position in this context. As I indicated to the EU Justice Sub-Committee this morning, it is my view that the Secretary of State for Northern Ireland essentially answered the wrong question."

There is something of a mystery as to what question the 'correct' question was that the Secretary of State (Mr Lewis) ought to have answered. However, on 16 September, Mr Lewis stated that he had spoken to Lord Keen who now agreed that looking at the specific question asked by Sir Robert Neill he had given the correct answer and an answer that was in line with legal advice given to government by the Attorney General - New European 16 September.

* Amending the Bill *

It now appears that, under political pressure, the government is going to present amendments to the Bill.  One amendment - along the lines put forward by Sir Robert Neill - will be to require a House of Commons vote before certain provisions can be brought into force - BBC News 16 September 2020.

Frankly, this is pure window dressing and does not allay the key concern that the Bill continues to have provisions enabling Ministers to break the withdrawal agreement.

* EU Reaction *

Ursula von der Leyen (President of the European Commission) addressed the European Parliament -  State of the Union Address 2020.  Ms von der Leyen said - "We need new beginnings with old friends - on both sides of the Atlantic and on both sides of the Channel. The scenes in this very room when we held hands and said goodbye with Auld Lang Syne spoke a thousand words. They showed an affection for the British people that will never fade. But with every day that passes the chances of a timely agrement do start to fade. Negotiations are always difficult. We are used to that. An the Commission has the best and most experienced negotiator, Michel Barnier, to navigate us through.But taks have not progrssed as we would have wished. And that leaves us very little time."

The address continued to note that the withdrawal agreementtook three years to negotiate and it guaranteed citizens' rights, financial interests, the integrity of the single market - and crucially the Good Friday Agreement. The agreement could not be unilaterally changed, disregarded or disapplied.

* Liaison Committee *

On 16 September, the Prime Minister appeared before the Liaison Committee - see Parliament TV. Mr Johnson was asked whether he considered that the EU was not acting in good faith and he replied that he did not believe they were - BBC News 16 September.

17 September 2020 

 * Updates *

a) 17 September - The Guardian - Johnson strikes deal with Tory rebels over Brexit Bill

b) 17 September - UK Government - Policy Paper - Government statement on notwithstanding clauses - HMG will ask Parliament to support the use of the provisions in Clauses 42, 43 and 45 of the UKIM Bill, and any similar subsequent provisions, only in the case of, in our view, the EU being engaged in a material breach of its duties of good faith or other obligations, and thereby undermining the fundamental purpose of the Northern Ireland Protocol. Examples of such behaviour are then set out. This policy paper may serve a purposes in securing the votes of some MPs but it has no legal effect.

The Policy Paper also states - "HMG confirms that in parallel with the use of these provisions it would always activate appropriate formal dispute settlement mechanisms with the aim of finding a solution through this route."

Further measures will be set out in the Finance Bill, relating to tariffs on GB-NI movements, including the same Parliamentary process that the Government has committed to for the UKIM Bill.

c) Definitely worth reading - Chris Grey Brexit Blog 18 September

d) UK and EU - Will the Lords block the Internal Market Bill? 

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