‘Notwithstanding the breach of international law’: government lawyers told internal market bill within civil service rules

Message from Jonathan Jones – who has resigned over the plans – relays Simon Case’s view to officials
Photo: Paul Heartfield

By Richard Johnstone

11 Sep 2020

The outgoing head of the Government Legal Department has told officials that cabinet secretary Simon Case has ruled that working on the government’s internal markets bill complies with the civil service code, despite its intention to break international law.

In a message to officials yesterday, seen by ITV political editor Robert Peston, Sir Jonathan Jones said many of the GLD’s officials were “rightly interested in the legal and constitutional issues with the UK internal markets bill”.

The legislation, which Northern Ireland secretary Brandon Lewis has said will break international law "in a very specific and limited way", would give ministers the power to ignore parts of the Northern Ireland protocol of the withdrawal agreement, including the ability to change or remove export declarations for goods moving from Britain to Northern Ireland.

Jones himself has resigned over the plans and is currently serving out a notice period.

In his message to officials, he wrote: “The government has today published a statement on the legal position of certain provision of the bill which are contrary to our legal obligations under the withdrawal agreement with the EU.”

The UK government’s official legal statement, published yesterday, said: "It is an established principle of international law that a state is obliged to discharge its treaty obligations in good faith. This is, and will remain, the key principle in informing the UK's approach to international relations.

"However, in the difficult and highly exceptional circumstances in which we find ourselves, it is important to remember the fundamental principle of parliamentary sovereignty.

"Parliament is sovereign as a matter of domestic law and can pass legislation which is in breach of the UK's treaty obligations. Parliament would not be acting unconstitutionally in enacting such legislation."

It added: "The legislation which implements the withdrawal agreement, including the Northern Ireland Protocol, is expressly subject to the principle of parliamentary sovereignty.

"Parliament's ability to pass provisions that would take precedence over the withdrawal agreement was expressly confirmed in section 38 of the European Union (Withdrawal Agreement) Act 2020, with specific reference to the EU law concept of 'direct effect'."

The legislation would disapply the EU law concept of ‘direct effect’, the statement said, “regardless of whether any regulations made under clause 42 or 43 of the bill are in fact incompatible with the withdrawal agreement”.

Jones told officials that cabinet secretary Simon Case had concluded work on such legislation was within the civil service code, which states that officials must “comply with the law and uphold the administration of justice”.

Jones said: “In addition, staff will wish to note that the cabinet secretary has determined that, notwithstanding the breach of international law, in executing this course of action agreed collectively by ministers and to be put to parliament, ministers and civil servants are operating in accordance with their obligations under the ministerial code and civil service code. This applies to civil servants in GLD.”

He added: “If you have any questions, you should raise them in the first instance with your line manager”.

The message comes after news of Jones's resignation, reportedly because he was unhappy with the plans for the legislation to seek to disavow elements of the EU exit deal. At the time, a GLD spokesperson said: “I can confirm Sir Jonathan has resigned but cannot comment further.”

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