Braverman’s ConfidantsThe Lawyers Spurring the Government to Break the Law
Byline Times reports on the legal minds helping the Vote Leave Government in its war against the judiciary
Westminster is ablaze with debate about the Government’s stated desire to undermine its own Brexit Withdrawal Agreement and break international law. Seen as a high-risk tactic to force a decisive moment in Brexit trade talks, the Government claims it requires new powers to prevent a hard border between Northern Ireland and the rest of the UK, if negotiations fail.
At the epicentre of this furore is Attorney General Suella Braverman, with commentators questioning how the chief legal advisor to the Crown and Government could sign off this act of legal vandalism.
Well, one answer could lie in the advice that Braverman received, prior to the Government’s announcement last week.
Indeed, according to the Guardian, the Attorney General received external advice from three lawyers: Guglielmo Verdirame QC, a professor of international law at King’s College London; the Australian academic Professor Richard Ekins; and newly qualified barrister Richard Howell, of Brick Court Chambers.
The selection of Howell and Ekins are particularly instructive. The former worked as a policy analyst at Vote Leave under campaign chief Dominic Cummings, and was appointed to the Government’s team to defend, in the Supreme Court, Boris Johnson’s prorogation of Parliament last year. He was selected for this position even before completing his pupilage.
Ekins, meanwhile, heads the Judicial Power Project undertaken by Policy Exchange, the Conservative-leaning think tank founded by Vote Leave lynchpin and now-Minister for the Cabinet Office Michael Gove.
As part of his work for Policy Exchange, Ekins authored a paper late last year entitled Protecting the Constitution, in which he defended the idea of ministers breaching international treaties, notably those negotiated with the EU.
“Neither the Government nor Parliament should accept that it is unconstitutional for ministers or civil servants to act in ways that would place the UK in breach of its international obligations, including treaty obligations to conform to EU law (including any post-Brexit treaty with the EU),” Ekins argues.
“It would often be wrong for the UK to act in this way but the question of when and whether this is the case requires and permits political judgement and responsibility, for which ministers need confidential advice constrained only by basic ethics and by domestic law and settled constitutional conventions as distinct from international law, and are then accountable to Parliament and the people,” he continues.
“Without a commitment to this end, the UK will inadvertently have surrendered its constitutional tradition – especially the legislative freedom which parliamentary sovereignty is intended to secure – by abdicating self-rule to international bodies.”
These sentiments were mirrored in Braverman’s statement on the proposed breach of the Withdrawal Agreement, as she asserted that “Parliament is sovereign as a matter of domestic law and can pass legislation which is in breach of the UK’s Treaty obligations…
“Whether to enact or repeal legislation, and the content of that legislation, is for Parliament and Parliament alone.”
Legal commentators have panned this strain of thought, which has been referred to as “a string of words desperately grasping for meaning,” among other things.
The Cummings Convention
Mainstream legal thought is united in opposition to the Government’s stance. For one, the UK Government is obliged, as a matter of international law, to honour its international commitments. A country cannot cite national law as a justification for breaching international law under Article 27 of the Vienna Convention on the Law of Treaties.
However, perhaps more seriously, this approach also fails to acknowledge that the Queen – in whose name this legislation is being brought – cannot be a party to illegality, even if Parliament can nominally pass any law it likes.
It appears as though the selection of Howell and Ekins as confidants was a classic example of confirmation bias. The Government knew what it was going to do; it just needed some posh legal phrasing to justify it.
Ekins was the perfect man for the job, being a fervent advocate the concentration of power in the hands of the UK executive.
Indeed, in his aforementioned Protecting the Constitution paper, Ekins lists several ways the Government should act to protect its power from judicial infringement. These include:
Ekins’ List of Demands
- Legislating to reverse the effects of the Supreme Court’s prorogation judgement.
- Reviewing the scope of judicial review and legislating to reverse it where appropriate, “reversing the effects of particular judgements by legislation where necessary.”
- Empowering ministers to reject or request reconsideration of judicial appointments, as well as legislating to increase ministerial involvement in judicial appointments.
- Renaming the Supreme Court and Upper Court of Appeal, and reducing its powers.
- Consider not complying with select judgements of the European Court of Human Rights. Decline to accept that this is unconstitutional, or a breach of international law. Amend the Human Rights Act 1998.
- Making ministers and Parliament responsible for changing EU law, not the courts, and ensuring that any laws drafted by ministers using their Henry VIII powers or any laws passed by Parliament can’t be held to be incompatible with human rights. Take away the requirement that if a law breaches human rights law then Parliament has to amend it so it is rights compatible.
This all reflects the attitude of Dominic Cummings, now the Prime Minister’s chief aide, who remarked in March 2019 that seemingly binding Brexit agreements could be ditched and traditional legal advice shunned.
“Don’t worry about the so-called ‘permanent’ commitments this historically abysmal Cabinet are trying to make on our behalf,” Cummings wrote on his blog. “They are not ‘permanent’ and a serious government – one not cowed by officials and their bullsh*t ‘legal advice’ with which they have herded ministers like sheep – will dispense with these commitments and any domestic law enforcing them.”
The Internal Market Bill and the external legal ‘advice’ underpinning it, seem designed to achieve precisely what Cummings suggested in 2019 – a government that is above the law and can do anything, no matter how brazenly illegal or unfair, without scrutiny or consequence.
Their attempt to rewrite Brexit is simply the first step.