Northern Ireland Protocol: First Treasury Counsel

James Cleverly Excerpts

Thursday 9th June 2022 Commons Chamber

[Mr Alistair Carmichael (Orkney and Shetland) (LD)]

(Urgent Question): To ask the Minister for the Cabinet office if he will make a statement on requests made to the First Treasury Counsel to assess Government proposals to override the Northern Ireland protocol.

[The Minister for Europe and North America (James Cleverly)]

As the Foreign Secretary set out to the House on 17 May, to respond to the serious situation in Northern Ireland the Government intend to bring forward legislation to fix the Northern Ireland protocol. As she also set out, the Government’s view is that such a course of action is lawful and in accordance with international law. In line with long-standing convention, we do not set out details of the internal deliberations regarding that view, but we will be setting out further details about the Government’s legal position in due course.

[Mr Carmichael]

Thank you, Mr Speaker, for allowing this urgent question. It was reported on Tuesday evening that Sir James Eadie QC, First Treasury Counsel, had not been consulted on the legality of the Government’s proposed legislation to override the Northern Ireland protocol. This was denied directly by the Prime Minister yesterday in a response to a question from the hon. Member for Foyle (Colum Eastwood). It would now appear that, at the very least, the answer given by the Prime Minister to the hon. Gentleman was incomplete.

We have learned in subsequent media reports that while Sir James was consulted on aspects of the proposals, he was in fact asked not to give an opinion on whether the plan would breach international law, and was told to assume that there was a respectable legal basis for the Government’s position. Can the Minister confirm to the House that this information in the public domain is correct? Was Sir James asked to give an opinion on the merits of the legal advice that the Government had been given or not? Can the Minister tell the House why the request to Sir James was framed in this way?

Sir James is understood to have volunteered that he found the argument of one particular lawyer advising the Government

“considerably easier to follow and more convincing”.

The lawyer in question had said that it would be “very difficult” for the UK to argue that it was not “breaching international law”.

It is a matter of fundamental import to this House that Members are being told by the Government that the content of a Bill is not in breach of international law when that assertion is based on information that is incomplete, and apparently intentionally so.

The Government have put First Treasury Counsel in an almost impossible situation. We are fortunate indeed that he has been willing to take his professional duties more seriously than those who sought his legal advice. We know the position about the publication of Government legal advice, but that relies on Governments acting in good faith and their legal advisers being free to give the best advice that their professional skills allow. That full advice must be published for the Bill.

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[James Cleverly]

The Government are confident that our actions are lawful under international law, and in line with a long-standing convention we do not set out internal legal deliberations.

[Sir Bernard Jenkin (Harwich and North Essex) (Con)]

I make it clear to my right hon. Friend that I voted for the withdrawal agreement and the protocol against my better judgment, and so it has proved. If the Government bring forward a Bill that does not hold out the serious prospect of the restoration of power sharing in Northern Ireland and the restoration of the Good Friday agreement, I will vote against it. Will he undertake to make sure that his right hon. and hon. Friends understand that those voting for such a Bill would be voting to wreck the Good Friday agreement?

[James Cleverly]

My colleagues on the Treasury Bench will have heard the point that my hon. Friend made; obviously, the question is narrowly focused on legal advice. As I said, we are confident that our position is legal but we do not discuss the details of legal advice to Government.

[Catherine West (Hornsey and Wood Green) (Lab)]

Happy birthday, Mr Speaker. Britain at its best is a country that adheres to the rule of law, sticks to its word and is trusted around the world, but under this Government the rule of law is being treated with disdain—whether it is law-breaking parties in No. 10, or the treaties they signed up to just a couple of years ago.

The Prime Minister knew that the Brexit deal he negotiated would create trade barriers in the Irish sea, which have stoked political tensions in Northern Ireland and placed strain on the Good Friday agreement. Rather than seeking workable solutions, the Government are threatening to rip up the agreement, with no concern for international law or for what is best for the people of Northern Ireland or the rest of the UK.

We are calling on both sides to find a solution. Both the UK Government and the EU must get round the table and do everything possible to solve this. Solutions exist, and must be found. Media reports suggest that the Government have not only been careless, but that the First Treasury Counsel, the Government’s independent barrister on nationally important legal issues, was not asked to give his opinion on whether imminent plans to overhaul the Northern Ireland protocol would break international law.

It would be unprecedented for the First Treasury Counsel not to be consulted on an issue of this importance. This is the issue that runs to the heart of whether this Government can be trusted to follow the rule of law. Can the Minister confirm—yes or no—did the Government ask the First Treasury Council for a specific legal opinion on whether their plans around the protocol would breach international law? Yes or no?

[James Cleverly]

The Government are confident that our plans abide by international law. The Government will be setting out their legal position in due course, and in accordance with the long-standing convention we do not discuss legal advice given to Government.

[Sir Robert Buckland (South Swindon) (Con)]

I listened very carefully to the right hon. Member for Orkney and Shetland (Mr Carmichael). He well knows, as a former Minister, that the Law Officers’ convention is very clear about the disclosure or non-disclosure of legal advice that might be tendered to the Government. I will say this to him in all respect: it is important that lawyers advising the Government do so in privileged circumstances. The real question here is, why on earth are leaks happening time and time again about important legal advice? I want to see the legal position published when the Bill is published.

[James Cleverly]

My right hon. and learned Friend makes an incredibly strong point. I am conscious that I may get a reputation for repetitiveness at the Dispatch Box, but he is right that the Government’s position is that our actions are legal in international law. It is a long-standing convention that we do not disclose the legal advice given to the Government.

[Mr Speaker]

I call the SNP spokesperson, Brendan O’Hara.

[Brendan O’Hara (Argyll and Bute) (SNP)]

On 16 June 2020, the then Chancellor of the Duchy of Lancaster told the House that the Government were “faithfully implementing” the withdrawal agreement, including the Northern Ireland protocol. We know there are no surprises in the withdrawal agreement because we spent long enough debating it in this place, so either it was signed in bad faith, knowing the inevitable outcome, or the Government really did not understand what they were doing. Either way, it is a very bad look for this Government.

If it is true that the Government have not sought full legal advice on the legality of their protocol plan, and if they have given themselves the green light to go rogue, does the Minister agree that breaching international law in this way will only increase the UK’s reputation for being a bad-faith actor in the international community?

[James Cleverly]

I thank the hon. Gentleman for making those points. I cannot see how they relate to the urgent question, but I say again that the Government are confident that we are acting within international law. It is a long-standing convention of this House that we do not disclose the legal advice given to the Government.

[Sir Iain Duncan Smith (Chingford and Woodford Green) (Con)]

Happy birthday, Mr Speaker.

In response to the comments of my right hon. and learned Friend the Member for South Swindon (Sir Robert Buckland), the reality is that until the Bill is published—in other words, finalised—it is almost impossible for the Law Officers to give an absolute finding on whether or not it is in breach of international law. When the Bill is published, I have no doubt that the Attorney General, whose responsibility it is as an independent adviser to the Government, will say whether it complies with international law. Does the Minister agree that those who criticise the process should recognise the simple point that the Good Friday agreement is itself an international agreement and should function as a priority above all else?

[James Cleverly]

As so often, my right hon. Friend speaks with great authority and makes an important point. He is right that the Government take the Good Friday agreement and peace and security in Northern Ireland incredibly seriously.

[Hilary Benn (Leeds Central) (Lab)]

Is it the Government’s intention to invoke article 16 of the Northern Ireland protocol alongside the publication of the Bill?

[James Cleverly]

Obviously, article 16 exists for a reason. I will not pre-empt the work of my right hon. and hon. Friends, but the Northern Ireland protocol needs to be fixed and that is our intention.

[Mr Laurence Robertson (Tewkesbury) (Con)]

Does the Minister agree that the Act of Union is also an international agreement? Will he ensure that any legislation we pass strengthens rather than diminishes that Act?

[James Cleverly]

Preservation of the Union will always be a priority for a Conservative Government, and my hon. Friend is right that it is something we should all hold dear.

[Ian Paisley (North Antrim) (DUP)]

Is it not a disgrace that hon. Members cried for years that Northern Ireland should not be used as a pawn and that the Belfast agreement should be protected and applauded but, at their very first opportunity to Boris bash, they use Northern Ireland as a pawn to thinly veil their attacks on the Government? Northern Ireland needs support from every party in this House.

Is it not also the case that the UK’s proposals to remove trade friction between Great Britain and Northern Ireland, and between Northern Ireland and Great Britain, are in keeping with international trade law, and it is the EU, under the terms of the 2014 trade facilitation agreement, that is in breach of its international obligations to reduce trade friction between co-signees, which include both the EU and the UK? The fact is that the protocol is the worst example of a European Government or Governments trying to use red tape to destroy commerce in the United Kingdom.

[James Cleverly]

Her Majesty’s Government are committed to ensuring that north-south trade and east-west trade are free flowing and beneficial to all communities in the UK and Ireland. The hon. Gentleman speaks with great authority on the importance of protecting the Good Friday agreement.

[Sir Christopher Chope (Christchurch) (Con)]

There is a lot of talk about integrity, but what could be more important than the integrity of the United Kingdom? Why has this Bill not yet been published? When will it be published? Can he prevent the Government from bickering in public on this issue and just get on with it?

[James Cleverly]

Happy birthday, Mr Speaker!

The integrity of the UK will always be an incredibly high priority for Conservative Governments, and my hon. Friend is absolutely right to say that we should work to protect it. I have been looking forward to using this phrase: the Bill will be published in due course.

[Maria Eagle (Garston and Halewood) (Lab)]

Newspaper reports suggest that the First Treasury Counsel was asked to give only very selective advice. I am not asking the Minister to say what was in that advice, for the reasons set out by the former Lord Chancellor, the right hon. and learned Member for South Swindon (Sir Robert Buckland). However, given the concerns that have surfaced, can the Minister assure the House that the First Treasury Counsel was not constrained in any way from giving whatever advice he thought appropriate about the lawfulness of the plans that the Government have?

[James Cleverly]

The Government are confident that our actions are in accordance and consistent with international law. In accordance with a long-standing convention in this House, we do not discuss the content or nature of legal advice to Government.

[James Daly (Bury North) (Con)]

Following on from the question from my right hon. Friend the Member for Chingford and Woodford Green (Sir Iain Duncan Smith), will the Minister confirm that any actions the Government take will maintain the supremacy of the Good Friday agreement? The maintenance of that international treaty is the central issue here; without that, we do not have peace, prosperity and a functioning withdrawal agreement. Will he express some disappointment about the fact, or agree with me, that people in this Chamber use the phrase “breach of international law” when they have no idea whether there has been a breach of international law? That is a decision that will come out when the Bill is published.

[James Cleverly]

My hon. Friend makes an incredibly important point. The Good Friday agreement is the foundation stone of peace and prosperity in Northern Ireland. We applaud the courageous peacemakers who were instrumental in bringing it into existence. We are coming towards its 25th anniversary, and this Government will absolutely ensure that it is protected.

[Kevin Brennan (Cardiff West) (Lab)]

Penblwydd hapus—happy birthday, Mr Speaker.

Did the Minister see the report in the Financial Times this week on the impact of the protocol? It showed that Northern Ireland, which remains in the EU single market because of the protocol agreement, is the only part of the UK other than London to have bounced back economically above pre-pandemic levels. The report says that Wales has “regained the ground” lost during the past two years, but all other regions are still producing “much less” than they did “before the health emergency”. So why are the Government trashing our international reputation for keeping our word? People on their side of the House used to say, “My word is my bond.” Why are we trashing our international reputation in order to unpick an agreement that is bringing clear and easily identifiable economic benefits to Northern Ireland?

[James Cleverly]

The hon. Gentleman will have noticed that the Northern Ireland Executive has not been reformed, and it is an important part of the institutions created under the Good Friday agreement. As I said in response to my hon. Friend the Member for Bury North (James Daly), this Government take the Good Friday agreement incredibly seriously. I can assure the hon. Gentleman, as I have assured right hon. and hon. Members from around the House, that the Government are confident that our actions are in accordance with international law. As I say, it is a long-standing convention of this House that we do not disclose the legal advice given to Government.

[Aaron Bell (Newcastle-under-Lyme) (Con)]

Clearly, a negotiated solution to the problems of the protocol is preferable, in the interests of everyone on the island of Ireland. Does my right hon. Friend agree that one lesson from the last Parliament is that attempts by this House to circumscribe our negotiating position end up weakening it and we are not able to deliver for our citizens?

[James Cleverly]

My hon. Friend makes a very good point. We enjoy a good working relationship with capitals around Europe and indeed with the institutions of the EU, and we do of course want a negotiated settlement. But we do have to fix the Northern Ireland protocol, and the legislation that we will bring forward is intended to do that.

[Mr Barry Sheerman (Huddersfield) (Lab/Co-op)]

The right hon. Gentleman knows that this is an issue of vital, fundamental constitutional gravity. I believe that he is responsible, accountable and honourable, but there is something pretty dishonourable going on over this. The fact is that we have a Prime Minister who is a serial offender in getting his own way despite what the rules or international laws tell him to do. The Minister knows that is the truth, I know that is the truth, and the whole House knows that is the truth. When will he stand up and be counted?

[James Cleverly]

The hon. Gentleman knows that I always listen carefully when he speaks, whether it is in this Chamber or elsewhere. The simple truth is that this Government are confident that our actions are in accordance with international law. We will be bringing forward legislation based on that in due course.

[Greg Smith (Buckingham) (Con)]

My right hon. Friend is absolutely right not to break the conventions of this House on discussing legal advice. However, does he agree that those who still seek to use legal acrobatics to take the side of the EU rather than that of our country are forgetting section 38 of the European Union (Withdrawal Agreement) Act 2020, which makes this House—this Parliament—sovereign to do whatever it takes to protect the Good Friday agreement and to protect the integrity of our whole United Kingdom?

[James Cleverly]

My hon. Friend makes an incredibly important point. The priority of this Government is to ensure the ongoing success of the Good Friday agreement and the ongoing integrity of this Union—this United Kingdom—and our actions will always be guided by those two principles.

[Dame Meg Hillier (Hackney South and Shoreditch) (Lab/Co-op)]

When the Government put forward the withdrawal agreement, including the protocol, they went in with their eyes open, knowing that Northern Ireland was effectively a pawn. This Bill risks further antagonising the EU—the very body with which we need to negotiate to help resolve this. Will the Minister tell the House, hand on heart, whether he is genuinely a negotiator, or whether he really believes in this tactic of throwing up sand and being bombastic in international negotiations? When I had the privilege of performing such a role for three years in the Home Office, this was not the way that we operated, and I do not believe that this is the way that he wants to operate, so will he be straight with the House?

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[James Cleverly]

Article 13(8) exists for a reason. Article 16 exists for a reason. This is why we have been negotiating with the European Union to ensure that the Northern Ireland protocol, which we regard as an incredibly important document that we want to succeed, is effective. Those articles exist for a reason, but, as I said in response to the question from the right hon. Member for Orkney and Shetland (Mr Carmichael), the Northern Ireland Executive is not currently up and running and the provisions of the Good Friday agreement are not being discharged fully in Northern Ireland. We want to see those institutions up and running and we want to see the protocol working. Our actions are in accordance with international law.

[Mr Tobias Ellwood (Bournemouth East) (Con)]

I congratulate both Ministers, my right hon. Friend the Member for Braintree (James Cleverly) and my right hon. Friend the Member for Bournemouth West (Conor Burns), on their efforts in trying to facilitate the restoration of Executive government in Northern Ireland and untangle the difficulties and disagreements over the Northern Ireland protocol. I know that my parliamentary neighbour, my right hon. Friend the Member for Bournemouth West, has been in the United States recently in an attempt to keep the US on board. Are there any changes to the Northern Ireland protocol that come with America’s blessing, as it is, after all, a guarantor to the Good Friday agreement?

[James Cleverly]

We are taking action in a way that keeps our good friends internationally informed of both what we are doing and why we are doing it. I have had conversations recently with Foreign Ministers and ambassadors in European capital cities, and yesterday I discussed these very issues with the newly appointed ambassador from the US to the Court of St James’s. We take our responsibilities as codified in the Good Friday agreement incredibly seriously, and our international friends and partners know that we do.

[Chris Bryant (Rhondda) (Lab)]

The thing is, this was all so predictable, was it not? In fact, it was predicted by many people in the House with different views about Brexit. I am sure the Minister will be absolutely furious when he discovers who actually signed the Northern Ireland protocol. Can he tell us whether the Bill will be published before the summer recess? Once it is published, if there is a legal contest, which tribunal or court will be adjudicating on whether it is within international law?

[James Cleverly]

It will be a British Bill, brought forward by Her Majesty’s Government. The Government’s position is that our course of action is lawful under international law.

[Sir Robert Neill (Bromley and Chislehurst) (Con)]

I apologise for being a little late at the beginning of the statement, Mr Speaker.

Does my right hon. Friend accept that it is by no means unknown for independent advice to be taken from a range of senior counsel, particularly where novel or highly specialised areas of law are concerned, and that that is done without any prejudice to the position or independence of the senior Treasury counsel and does not of itself constrain them? Does he also accept that it is important to remember that partial leaks of illegal advice are all the more unhelpful in circumstances such as this, not only because of the breach of the convention, but because an assessment on the necessity test, which may be relevant in international law, can be made only on the totality of the legal advice and the totality of the evidence, which must be then weighed against that advice, and we are not in a position yet to do that?

[James Cleverly]

My hon. Friend makes a strong and important point. He knows that, both professionally and personally, I listen carefully when he speaks, as do all those on the Treasury Bench. On issues such as this, leaks are incredibly unhelpful for exactly the reasons he gave. Important decisions need to be taken with the totality of evidence, not partial fragments of such, and he is right to highlight that.

[Christian Matheson (City of Chester) (Lab)]

If there is a problem with the Northern Ireland protocol, that is down to the Prime Minister. He wrote it, he negotiated it; he should own it and he should honour it. The Minister is doing an excellent impersonation of Geoffrey Boycott at the crease, stonewalling all attack, but my hon. Friend the Member for Garston and Halewood (Maria Eagle) is right. If the Minister says that it is the Government’s belief that they are acting in accordance with international law, is that not only because the questions they have asked their counsel are so narrow and specific that they get the answers they are looking for?

[James Cleverly]

The Northern Ireland protocol has articles in it that envisage the need for amendments. That is why article 13(8) and article 16 exist. We are confident that we are acting in accordance with international law in what we are doing and, as I have said to a number of right hon. and hon. colleagues across the House, it is a long-standing convention of Governments of all political persuasions that we do not discuss the content of legal advice given to Government.

[Jim Shannon (Strangford) (DUP)]

I thank the Minister for his responses. In another example this week of the damage caused by the Northern Ireland protocol, a photo framing business in my constituency coming to my office on Tuesday past told me that its supplier will no longer sell to it, as the time spent on paperwork outweighs the profit margin. With local businesses in Northern Ireland unable to access the VAT breaks for the UK and tensions within communities in Northern Ireland at boiling point, I find the desire of some to delay further action being taken to be parliamentarily unsound and physically potentially dangerous. Will the Minister assure us today that the Government will hold to their word, present a workable solution, and stop asking people from every part of Northern Ireland to grin and bear it, swallow the cost and watch their business crumble to pacify remainers in this Chamber, who will not accept democracy and are prepared to sacrifice peace in Northern Ireland just to play their own dangerous game?

[James Cleverly]

The hon. Gentleman, as always, speaks with clarity and passion. Voices from across the political divide in the United Kingdom and outside it have recognised that the Northern Ireland protocol is not working for all communities and businesses in Northern Ireland and Great Britain. It needs to do that. That is why we are taking steps to fix the Northern Ireland protocol, and in doing so we absolutely intend to abide by international law. As I have said at a number of points, we maintain the long-standing convention of not disclosing the nature of legal advice given to Government.