14 June 2022

Institute for Government: The Northern Ireland Protocol Bill: legal (and perhaps illegal) goings on

In a guest blog for the IfG, Sir Jonathan Jones QC, the former head of the Government Legal Department, assesses how the government received legal advice on the Northern Ireland protocol – and finds its published legal position far from persuasive

In all the drama of the Northern Ireland Protocol Bill published by the government on 13 June, there has been an interesting sub-plot around the question of what legal advice was given on the bill, and by whom.

The government has access to a wide range of legal advice

The government gets its legal advice from a variety of sources. At the apex of the system is the attorney general, who is the government’s chief legal adviser, supported by the solicitor general and the advocate general for Scotland (collectively “the law officers”). Obviously the law officers personally can deal with only a small fraction of the many legal issues facing government – typically, the most complex, controversial or sensitive ones. There is this long-standing rule, contained in the ministerial code:

The fact that the law officers have advised or have not advised and the content of their advice must not be disclosed outside government without their authority.

So we don’t normally know whether the law officers have advised on a particular matter, let alone the content of their advice. In this case however it was reported ^[1] that the attorney general, Suella Braverman, had advised that the proposed Northern Ireland Protocol Bill was compatible with international law. It is also the case that the same Attorney General took a public role in defending the government’s previous bid to override the protocol, in the 2020 Internal Market Bill. There can be no doubt that she will have advised on the current bill.

But the Attorney General has access to advice from a variety of other sources. These include lawyers in the Government Legal Department, headed by the Treasury Solicitor, and other government legal teams including the Foreign, Commonwealth & Development Office and the Attorney General’s Office itself. In addition, Parliamentary Counsel are the experts who draft and advise on government bills. It is also quite usual for the Attorney to consult external counsel, whether First Treasury Counsel (FTC) ^[2], or a member of one of the government’s panels of counsel, or (less often) a specialist barrister who is not on any of the panels. Sir James Eadie QC has been FTC since 2009 and is one of the most experienced and respected members of the Bar. It was reported ^[3] that James Eadie had been asked to advise on the NI Protocol Bill – but not (as discussed below) on its compatibility with international law, on which separate advice had already been obtained from other external lawyers.

Again this is not, in itself, so very unusual. Different lawyers might be asked to advise on different aspects of a complex legal issue, depending on their particular areas of specialism. The government does not usually name individual lawyers from whom advice has been sought (though there is no rule against doing so, as there is under the ministerial code in relation to the law officers).

In this case though, things got messy.

The government appears to have consulted an unknown number of unnamed legal advisers

It has always been clear that there were – to put it no higher – serious doubts about whether the government’s plans to override the protocol were compatible with the UK’s international law obligations under the EU Withdrawal Agreement. Indeed, last time round the Northern Ireland secretary, Brandon Lewis, acknowledged that the relevant provisions of the Internal Market Bill did breach international law in “limited and specific ways”.

This time the government has issued a statement ^[4] asserting that its proposals are consistent with international law. It has not published the underlying legal advice. However, from the earlier leak it appears that the government had consulted an unknown number of unnamed legal advisers on the international law position. James Eadie was then asked to advise not on the international law aspects, but to assume there were respectable arguments that the proposals were compatible with international law. My guess is that Eadie was asked to advise on whether the proposals in the bill met the government’s policy aims as a matter of UK domestic law, and (perhaps) whether they would survive challenge in the UK courts. However, according to the leak, while nominally accepting that assumption, Eadie inconveniently went on to say he found the argument of one of the other lawyers "considerably easier to follow and more convincing" – to the effect that it would be "very difficult" for the UK to argue it is not "breaching international law".

The government’s legal position statement sets out no evidence

What about the substance of the government’s published legal position? It accepts, as it must, that the new bill involves the “non-performance of [the UK’s] international obligations”: indeed the bill overrides (or allows ministers to override) almost every aspect of the protocol. The government justifies this on the basis of the international law doctrine of “necessity” – that “the legislation is currently the only way to provide the means to alleviate the socio-political conditions” in “the challenging, complex and unique circumstances of Northern Ireland”.

Most legal commentators are distinctly unpersuaded by this explanation. From the sound of it, James Eadie and at least one of the government’s other lawyers also had their doubts. I have politely described the argument as “weak”, perhaps more bluntly as “hopeless”.

The concept of “necessity” in international law is an extremely high test – the government accepts it “can only be exceptionally invoked”. It applies only where a state must act to safeguard its essential interests against “grave and imminent peril”.

For a start, it must be inherently implausible that an agreement willingly entered into only in 2020, at what the prime minister described as a “fantastic moment”, is already proving such a catastrophic disaster as to represent “grave peril” to the country. The government statement sets out no evidence for such an extreme conclusion. Secondly, there is no explanation for why legislation on the scale of the Bill is “necessary” to deal with the situation – why lesser measures have not been attempted first, including Article 16 of the protocol which allows either the EU or UK to take certain “safeguard measures” if the application of the protocol leads to “serious economic, societal or environmental difficulties that are liable to persist, or to diversion of trade”. How can it possibly be true, for example, that the jurisdiction of the European Court of Justice over aspects of the protocol represents a “grave and imminent peril” to the UK? Finally, the bill – assuming it is eventually passed – is likely to take many months to get through Parliament. If the UK really did face imminent peril, you might think the government would need to deal with it more quickly than that....

 more at Institute for Government

© Institute for Government