When in a hole...

The government's attempts to cover its tracks have backfired badly

The British government is desperate to distance itself from the suggestion that it is proposing to breach international law. Yesterday, one of its law officers suggested that when the Northern Ireland Secretary Brandon Lewis had said this was indeed the case he was mistaken.

There are two problems with this argument. The first is that Lewis had been reading from a government-approved brief. The second is that he was not mistaken. 

Today, this attempt by Downing Street to dig itself out of its hole struck a geyser which blew up in its face.

This imbroglio is about the internal market bill, a piece of legislation which will enable ministers to override elements of the Brexit withdrawal agreement that Boris Johnson signed with the EU last year and which the prime minister has now decided he doesn’t like.

On September 8, Tory MP Sir Robert Neill asked Brandon Lewis:

…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? 

To which Lewis answered: 

I would say to my Hon. Friend that yes, this does break international law in a very specific and limited way. We are taking the power to disapply the EU law concept of direct effect, required by article 4, in certain very tightly defined circumstances. There are clear precedents of this for the UK and, indeed, other countries needing to consider their international obligations as circumstances change.

Cue general amazement, consternation and a gathering revolt in Tory ranks, even among Brexiteers, at the government’s open admission that it was legislating permission to break an international treaty it had signed.

Yesterday Lord Keen of Elie, the advocate-general for Scotland and one of the law officers who were consulted on the government’s plans in advance, told the House of Lords that the bill was lawful. He then proceeded to hang Brandon Lewis out to dry. Said Keen:

It is my view that the Secretary of State for Northern Ireland essentially answered the wrong question. The internal market bill falls within the boundaries of international law, within the boundaries of our treaty obligations and within the boundaries of the rule of law. The present bill does not in itself constitute a breach of international law or of the rule of law.

Keen’s comments were eye-catching, to say the least. For a start, he was merely stating the obvious: that the bill itself doesn’t breach international law. Well of course it doesn’t, because the UK parliament is entitled to pass any legislation it wants. The actual issue is whether the bill’s provisions will enable the government to break international law.  That was the question Neill asked and to which Lewis answered “yes”. 

So exactly what was “the wrong question” that, in Keen’s view, Lewis had answered? 

Keen’s remarks seemed to embody a disingenuous confusion of the indisputable lawfulness of the bill itself with the all-too disputable lawfulness of the government action it would enable.  

Today, this dubious tactic blew up in the government’s face. 

According to Guido Fawkes, Brandon Lewis claimed to the Northern Ireland select committee that Keen had now reviewed his claim that Lewis “answered the wrong question” in admitting the internal market bill breaks international law, and that he now accepts this was not the case:

I’ve spoken to Lord Keen and looking at the specific question [Bob Neill] asked me last week, he agrees the answer I gave was the correct answer… now he’s aware of the actual specific question I was asked by my honourable friend last week he is in agreement with me that I was correct…

Gordon Rayner, political editor of the Daily Telegraph, has tweeted that Brandon Lewis said the words he had used — “breaks international law in a very specific and limited way” — had been written by the office of the Attorney-General, Suella Braverman, and that the phrase had been agreed by government law officers.

The Telegraph, however, reports that at today’s select committee session Lewis dodged the question of who had actually written the words of his reply to Neill:

Asked who wrote his statement, Brandon Lewis says he read "something very specific, because I wanted to make sure I gave the House a straight answer". Asked if it was a lawyer or Number 10, the Northern Ireland Secretary declines to comment, and repeats his point about it being "a straight answer" and that it was "absolutely in line with the legal advice we were given". 

It was always patently obvious that Lewis wouldn’t just have conjured up from nowhere the words he would use on such an incendiary subject. And so, in similar vein, under whose imprimatur did Lord Keen vouchsafe that Lewis had “answered the wrong question”? Was this a frolic of his own? Is that really likely?

As I wrote here and here, this whole mess is entirely of Boris Johnson’s making. Desperate to “get Brexit done” last year, he signed that withdrawal agreement — which in several deeply alarming ways threatens to trap the UK in permanent thrall to the EU even now that Brexit has got done. 

The Prime Minister is now trying to undo the worst bits of that agreement about Northern Ireland — which means breaking the terms of the agreement and thus, perhaps, international law (unless it can be proved that the EU is in fundamental breach of the agreement through its own behaviour).

The government, having first unaccountably declared that this was in fact precisely what it was doing, then tried to pretend that it wasn’t and hung out to dry the minister who said it was; and now that tactic has backfired, the law officer who deployed it also faces being hung out to dry.

UPDATE: Lord Keen has now resigned. His resignation letter can be read here.

Meanwhile, the Telegraph reports:

Hopes are growing that an 11th-hour agreement could be reached during this week’s Brexit talks…It comes amid claims that the UK had made a “tentative, modest” concession on fisheries, with Reuters reporting that London was “moving cautiously towards some opening on fisheries in the technical talks”. 

The UK is making concessions? Does this provide confidence that any trade deal with the EU will be in the UK’s interests?

And meanwhile, whatever happens to the internal market bill the threat posed by the terms of the withdrawal agreement to the UK’s post-Brexit independence of action — the threat for which Boris Johnson is personally responsible — remains overall undiminished.

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