Why a little light lawbreaking matters

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The attorney general lived up to her ‘Cruella-Suella’ nickname when she attacked Shadow Justice Minister Ellie Reeve on 24 September last. Ms Reeve had asked a perfectly reasonable question, in a polite and proper way:

“…there is a universal view among those who look to the attorney general to defend the rule of law that she has betrayed them, so could she tell the House what she has done to defend the rule of law in the face of the government’s breach?”

In response, Suella Braverman accused Ms Reeve of being ‘emotional’, made unevidenced claims that the UK Internal Market (UKIM) Bill ‘safeguards’ the UK Union and peace in Northern Ireland, and cast aspersions on Ms Reeve’s patriotism. Ms Braverman’s vulgar tirade was the epitome of Samuel Johnson’s famous saying, beloved of Margaret Thatcher, “Patriotism is the last refuge of the scoundrel.”

Ms Reeve’s question related to a statement made by Northern Ireland Secretary Brandon Lewis a few days earlier, when he explained that the UKIM Bill the government was about to introduce would break international law in “a very specific and limited way.” Indeed, the Bill has since been introduced, and it not only permits the government to breach international law, but also domestic law. Article 45 is preceded by the note: “certain provisions to have effect notwithstanding inconsistency with international or other domestic law.”

Pro-government commentators are playing the latter down. They are treating this bill as just another instalment of the ‘culture war’, whipping up British exceptionalism by honing in on the supremacy of our parliament, and hoping the public will think, ’Oh well, if it’s only foreign laws they’re breaking…’ Multi-millionaire co-founder of also-ran EU referendum campaign Leave.eu, Arron Banks, famously claimed, “Facts don’t work… you have got to connect with people emotionally.” Members of the rival but official VoteLeave campaign, now in government, have carried that mentality into Number Ten. Dissembling over the UKIM Bill is just the latest example of it in action.

The Rule of Law is a legal principle that underpins our constitution, and is one of the UK’s core values. It means that all people, institutions and our government are subject to the law and equal before it – ‘the law’ being measures that are publicly declared and independently adjudicated. The principle is important because it protects us from tyranny: while public authority is necessary to guard against excessive private power, something is needed to keep the authorities honest, and that ‘something’ is the Rule of Law.

Attorney General Sir Edward Coke developed the doctrine in the seventeenth century as a counter-weight to the excesses of the Royal Prerogative, but it was rooted in much earlier precedents, including the Magna Carta. It is invaluable to us because, as well as being the bedrock of our constitution, it provides the certainty and confidence to conduct trade and commerce, whether that be abroad, or domestically within the four home nations. The UK’s reputation as a leading global provider of legal services, worth £60bn a year to our economy, is reliant on it. Without it, trust disintegrates quickly. That is why Sir Robert Neil, in the question he posed to Brandon Lewis that elicited such an extraordinary response, stated, “Adherence to the Rule of Law is not negotiable .”

In her one-page explanation as to why she supported the UKIM Bill, despite its obvious contravention of the Rule of Law, Ms Braverman invoked parliamentary sovereignty. This is the doctrine whereby no parliament can bind another, and the legislature (parliament) has supremacy over the other two branches of public authority: the executive (government) and the judiciary (the courts). This seems odd, as the UKIM Bill gives ministers the power to do this, that and the other without ever having to consult parliament. A transfer of such substantial power from the legislature to the executive weakens parliament, and in consequence, democracy. Setting that aside, the principle is not a licence to act illegally. While parliamentary sovereignty defines ‘what’ is law, the Rule of Law defines ‘how’ it is applied, that is, without fear or favour.

Besides, when the government uses our sovereignty to enter into an international agreement, the Vienna Convention on the Law of Treaties (1969), to which the UK is a signatory, applies. Article 27 states, “A party may not invoke the provisions of its internal law as justification for its failure to perform a treaty.” In other words, the Rule of Law means our government must comply with its obligations in international law as in domestic law. Imagine the mayhem if the opposite were true? Ireland could unilaterally pass a law laying claim to Northern Ireland, France to the Channel Islands, Spain to Gibraltar, and Argentina to the Falklands. Where would it end? In war, probably. Which just goes to show: the Rule of Law protects the UK too.

The other excuse Ms Braverman gave was the ‘dualist’ nature of our law. By this, she meant that matters set out in international law can only be enforced in national courts if they have been brought into domestic law —only she got it wrong. She said such matters were only ‘binding’ if enshrined in national law, confusing ‘binding’ with ‘enforceable’. As the above-cited Vienna Convention makes clear in Article 26, “Every treaty in force is binding upon the parties to it and must be performed by them in good faith.”

Ms Braverman’s citation of the Miller case as an authority justifying her action was similarly ham-fisted. The fact that she cited it at all awakened the trolls and resulted in Gina Miller, one of the complainants in the case (the other being Leave-voter Deir dos Santos, often overlooked by Brexit fans) receiving death threats again, but let’s assume that was not intentional on Ms Braverman’s part. She claimed that R (Miller) v Secretary of State for Exiting the European Union [2017] UKSC 5 established the principle that whether to enact or repeal legislation is for parliament to decide, and parliament alone. As Scottish National MP Joanna Cherry QC pointed out to her, Braverman was guilty of selective citation. It turns out that at paragraph 55 of the judgement, the Supreme Court reaffirmed the principles set out in Articles 26 and 27 of the Vienna Convention.

This embarrassing sloppiness would be inexcusable in a first-year law student. It is what happens when someone is promoted on the basis of ideology, rather than ability, expertise and qualifications. Ms Braverman is out of her depth. She was only made Queen’s Counsel (QC), known as a ‘silk’, because of her political role. This is not unprecedented. After all, Jeremy Wright was only a couple of years older than Ms Braverman is now when he was appointed as attorney general by Prime Minister David Cameron. He was similarly obscure and inexperienced, and he, too, was made QC. However, upon investigation, Ms Braverman’s CV was found to be greatly exaggerated. This matters, because the attorney general is officially the leader of the Bar in England and Wales. In her case, it’s like putting an inexperienced dental nurse in charge of the entire dentistry profession.

Ms Braverman compounded her own lack of experience through her choice of counsel to consult with. Instead of asking First Treasury Counsel James Eadie QC, or lawyers on the government’s approved list of counsel, she consulted three ‘experts’ unlikely to give her a sufficient breadth of opinion. One was Guglielmo Verdirame QC, the lover of one of Michael Gove’s former special advisors; Oxford law professor Richard Ekins, who also works at the Policy Exchange, a think tank co-founded by Michael Gove; and another was newbie barrister Richard Howell, who worked with Michael Gove at VoteLeave. Gosh. It’s almost as if this was another example of rampant cronyism at the heart of government! Certainly, it is impossible to argue Ms Braverman is acting with the independence of thought required of her rôle.

The Times has reported that the progress of the bill through parliament has been slowed, and if it passes, it is not expected to do so until just before recess in December. The contentious provisions don’t protect trade between Northern Ireland and Great Britain, and are not needed, as there is already provision for the UK to act unilaterally and override the provisions of the Withdrawal Agreement in extremis in Article 16 of the Irish Protocol. Which begs the question: is this merely a negotiation ploy? If so, it has spectacularly backfired and tarnished still further Britain’s Brexit-battered reputation internationally. For who will trust us now?

While it is not unknown for a government to breach the law, to premeditate such breaches, provide for them in law, and preclude any recourse to the courts to challenge them, is unprecedented. Meanwhile, Ms Braverman is being investigated by the Bar Council and could potentially be struck off. What a plot-twist that would be — even more shocking than when former attorney general, Geoffrey Cox QC, was found in contempt of parliament.

If Suella Braverman is lucky, she’ll be remembered as the second female and second person of colour to hold the office of attorney general —the first in both instances having been Baroness Scotland of Asthal, who served under Prime Minister Gordon Brown. Unlike Baroness Scotland, Ms Braverman has brought the office into disrepute. If she carries on in the manner in which she has conducted herself over the UKIM Bill, and especially if she is disbarred while serving as attorney general, she will go down in infamy. She should resign now.