The Times recently (11 May 2022) reported that the Attorney General, Suella Braverman, had received, and given, legal advice to the effect that proposed government action in relation to the Northern Ireland Protocol was compatible with international law.  As I write, we have still not seen details of either the proposals or the legal arguments on which the government intends to rely.  What is going on?

First, it is unusual and unsatisfactory that the existence of this legal advice has been leaked.  For one thing, unless the leak was authorised by the Attorney General herself, it looks like a breach of the Ministerial Code, paragraph 2.13 of which says:

The fact that the Law Officers [that is, the Attorney General, Solicitor General and Advocate General for Scotland] have advised or have not advised and the content of their advice must not be disclosed outside Government without their authority.

Note that the Code precludes even disclosing the fact that the Law Officers have (or have not) advised.  It is however pretty fanciful to imagine that any action will be taken about that apparent breach, given the Prime Minister’s previous revealed attitude to the Code.

Secondly, the Attorney General has said that the government does not propose to publish the legal advice itself.  That is consistent with the Ministerial Code and with usual practice, although the Attorney was wrong to tell Sky News (18 May 2022) that Law Officers’ advice has never previously been published.  Indeed three advices from Geoffrey Cox, when Attorney General, on the Northern Ireland Protocol itself were published – in December 2018 (advice dated 13 November 2018), January 2019 and March 2019.  So was Lord Goldsmith’s advice on the legality of the Iraq war (on 28 April 2005). 

Instead, Suella Braverman said in her Sky News interview that the government intends to set out “a bit more detail about the legal basis so that people have a bit more understanding about why we think the action is lawful.”  For the government to set out an explanation of the legal basis for its actions or proposals, without publishing the underlying legal advice itself, would be a fairly orthodox course.  It was what the Labour government did in a Written Answer (albeit given by the Attorney General himself) in relation to the Iraq war – before Lord Goldsmith’s full advice was published following a partial leak.  Any such published statement would obviously need to be consistent with the underlying legal advice.  But it would avoid the government having to disclose (for example) any legal advice it had received on possible contrary arguments or on legal tactics – although it might of course be pressed on those matters either inside or outside Parliament in any event.

What about the substance of the advice?  Well we don’t know yet.  It is even unclear whether the proposed measures involve action pursuant to Article 16 of the Protocol (which enables either the UK or the EU to take certain “safeguard measures”), or changes to the Protocol itself, or something else.  The government has repeated the assertion that its action will be compatible with international law (see for example the Foreign Secretary here).  From that point of view, action under Article 16, though subject to the legal tests set out in that Article, is at least a course contemplated by the Protocol and therefore likely to be less problematic than unilateral changes to, or disapplication of, provisions of the Protocol.

We have of course been here before.  In 2020 the government introduced clauses in the Internal Market Bill which would unilaterally have disapplied aspects of the Protocol – leading to my resignation as Treasury Solicitor and that of Lord Keen as Advocate General for Scotland.  The government’s position at that time was not that the measures were compatible with international law: indeed the Northern Ireland Secretary accepted in Parliament that they breached international law in “limited and specific ways”.  Rather, the government asserted that it was “entirely constitutional and proper for Parliament to enact legislation, even if it breaches international treaty obligations”.

Many (including me) found this “explanation” completely unpersuasive.  It is of course possible for Parliament to pass such legislation, and the UK courts could be expected to give effect to it.  But this simply does not deal with the position under international law (where indeed the government had accepted there was a breach), the implications for other international law obligations of the UK, or the impact on the UK’s relations with the EU or its international reputation generally.

Nonetheless, if it is still the government’s position that it is “entirely constitutional and proper” for Parliament to legislate in breach of its treaty obligations, why does it now feel the need to find a legal basis for saying that its action doesn’t give rise to a breach of international law?  Perhaps we should welcome the apparent change of heart.

But that only works if the “legal basis” is at least tolerably plausible.  It is sometimes said that in order for government action to be “proper”, it must have at least a “respectable” (or “stateable”) legal basis for it.  Lord Keen in recent evidence to the House of Lords Constitution Committee observed that this was a “fairly low standard”.  But the government doesn’t need to show that any particular course of action is definitely lawful or that there are no conceivable legal risks or counter-arguments.  That would be too high a standard – often impossibly high: most government actions of any novelty or controversy carry some legal risk.  What matters is that there are respectable legal arguments in support of the proposed course, of a kind that could be properly deployed if the matter ever came before a court.  The government is entitled to take a legal risk, even a big one, and there are plenty of examples where it has done so and gone on to win in court.  But as Lord Keen said, if there are no respectable arguments, “the advice of the Law Officers must be that the government should not proceed”.

We will have to wait and see what arguments the government seeks to rely on in this case.  From what was leaked, it seems it may be argued that some aspects of the Protocol need be changed because they are inconsistent with the Good Friday Agreement (GFA), and that the latter has “primordial significance” (a novel legal expression, to me at least), apparently signifying that the GFA somehow trumps the Protocol.  Or that unilateral measures are necessary because of the way the EU is implementing (or over-implementing) the Protocol, or because of some other unforeseen change of circumstances since the Withdrawal Agreement was signed.

Any such arguments will need (among other things) to address the fact that the government signed up to the Protocol in the full knowledge of its relationship with the GFA, agreed in Article 1 that its terms were necessary “to protect the [GFA] in all its dimensions”; and took the position in the recent Allister proceedings in Northern Ireland that there was no inconsistency between the two instruments – indeed its own evidence, which the High Court and Court of Appeal accepted, was that the Protocol had been carefully crafted so as to provide “solutions which are compatible with the GFA”.

In any event, in taking any unilateral action the government will face formidable arguments that it is acting in breach of the obligations of good faith in the Withdrawal Agreement, including the duty in Article 169 to try and resolve “any dispute regarding the interpretation and application of the provisions of [the Withdrawal Agreement, including the Northern Ireland Protocol] by entering into consultations in the Joint Committee in good faith, with the aim of reaching a mutually agreed solution.”

Finally, in my view it would not help the government to argue that merely bringing forward or tabling unilateral changes to the Protocol, perhaps as a threat or supposed negotiating ploy, would not amount to a breach, but that a breach would arise only if the measures were actually brought into force or triggered.  Lord Keen, at least initially, thought there was a respectable argument that tabling the relevant provisions of the Internal Market Bill in 2020 had the potential to breach international law, but did not actually do so “because the provisions allowed for the making of regulations that could be employed by a Minister to carry out such a task” (see his evidence to the Lords Constitution Committee cited above).  However, I thought then (and still do) that the provisions showed a clear intention, or at least a willingness, to breach international law: why would the government table such measures unless it was prepared to use them (even though in the event it later changed its mind and withdrew them)?  That was bad enough then and would be just as bad now.

Sir Jonathan Jones QC (Hon), Senior Consultant, Linklaters LLP

(Suggested citation: J. Jones, ‘The Northern Ireland Protocol, International Law and the Attorney General’, U.K. Const. L. Blog (30th May 2022) (available at https://ukconstitutionallaw.org/))