Sir Robert Neill (Bromley and Chislehurst) (Con)The Secretary of State has said that he and the Government are committed to the rule of law. Does he recognise that adherence to the rule of law is not negotiable? Against that background, will he assure us that nothing that is proposed in this legislation does, or potentially might, breach international legal obligations or international legal arrangements that we have entered into? Will he specifically answer the other point: was any ministerial direction given?Brandon LewisI would say to my hon. Friend that yes, this does break international law in a very specific and limited way. We are taking the power to disapply the EU law concept of direct effect, required by article 4, in certain very tightly defined circumstances.
Lewis went on to explain that there were precedents that permitted this, but this is absurd: that someone else might have broken the law in the past does not permit another person to do so now.
And it is the case that a minister acting with intent to break the law would appear to always be acting illegally in the UK, come what may. Section 1 of the Constitutional Reform Act of 2005 makes that clear in the case of the Lord Chancellor and the Ministerial Code of Conduct extends that duty to all ministers.
The question that this gives rise to is, then, a simple one. It is whether or not this statement represented serious professional misconduct on Lewis' part given that he is a barrister, and whether that misconduct might be shared by other barristers who are ministers and so share collective responsibility for this act?
What constitutes serious professional misconduct by a barrister has been decided by a judge:
In Walker v BSB PC 2011/0219, 19 September 2013, Sir Anthony May, the former Lord Justice of Appeal, sitting as a Visitor to the Inns of Court, considered the meaning of “professional misconduct” in an earlier edition of the Bar's Code of Conduct which was in similar terms. He concluded that on a literal interpretation, any breach of the Code however trivial would constitute professional misconduct. He held that this could not be the correct approach, saying:
11. …consistent authorities (including, it appears, other decisions of Bar Standards Board Tribunals) have made clear that the stigma and sanctions attached to the concept of professional misconduct across the professions generally are not to be applied for trivial lapses and, on the contrary, only arise if the misconduct is properly regarded as serious…….16. …the concept of professional misconduct carries resounding overtones of seriousness, reprehensible conduct which cannot extend to the trivial.
Sir Jonathan Jones QC, permanent secretary to the Government Legal Department, who has resigned over this issue has given the clearest possible indication as to his opinion on this matter.
The announcement of the resignation of Rowena Collins Rice - Director General at the Attorney General's Office - suggests that she shares that opinion.
I will be curious to note how the legal profession responds to this massive constitutional crisis. They clearly have a duty to do so.
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Does Boris Johnson even understand what a “Code of Conduct” is? His life’s track record suggests not!
Good evening Richard. Although an infrequent poster here, I avidly read your blog.
Jolyon Maugham is on the case, which I have supported. I only hope that he can make people see sense.
https://goodlawproject.org/news/times-of-jeopardy-for-democracy/
Good
Given that the Prime Minister has misled the monarch, Parliament and the electorate and that his ministers have continued in a similar vein, does no one have the authority to charge him with criminal actions or possibly treason (for acting in contravention of the nations best interests)? Is there no one able or willing to challenge him? We, as a nation, face becoming outcasts internationally. Our citizens have died in their tens of thousands because of the inept behaviour of this government and a policy of ‘taking it on the chin’. We face potential destitution at the whim of a cabal of newspaper owners and unelected policy makers and there appears to be nothing that the electorate can do. When our leaders act in their own interests rather than the people they represent, there is something seriously wrong.
I agree with your conclusion
“…Yes, it’s true I did steal the diamonds, but they are really very small therefore its only breaking the law a tiny little bit: which doesn’t really count… ”
-Oh boy…
Well you can hardly call passing a law in parliament a ‘trivial lapse.’ The business of parliament is not trivial and deliberately framing and publishing a white paper cannot be done inadvertently. Unless parliamentary privilege somehow applies Lewis surely should be struck off.
I don’t believe treaty obligations have direct effect on individuals, only governments and their armed forces etc. Kidnapping a soldier and depriving him of his uniform and chain of command is not a breach of the Geneva Convention if you are not another armed force.
So logically proposing that one state should break a treaty obligation between states cannot be construed as the professional misconduct of an individual since the individual is not at fault, the Crown and possibly the corporation sole of the Minister are.
But Jolyon specialises in lost causes so I wont, er, bludgeon his fox…
Apart from the fact that your example is crass, and offensive, and likely to represent a simple breach of the law come what may, you are also wrong. On the basis of this crude example you are claiming that A) the government is wrong to say it is breaching the law B) the senior civil servants who resigned because it is doing so did nit understands the law.
I suggest that legal opinion is not your forte.
“I suggest that legal opinion is not your forte.”
Do remind us what your legal qualifications are. If I recall correctly, your only previous direct experience of law was when you broke libel laws.
38 years a chartered accountant, including a great deal of tax work requiring that I offer opinion on the law and engage with HMRC in it
Do you have no clue what a chartered accountant does?
Or does trolling require that all judgement be suspended.
You don’t even understand libel
There is a sensible point to be made about whether obligations agreed between states on the international plane create obligations under domestic law in the absence of any specific implementing legislation, either vertically (between the state and non-state entities) or horizontally (between non-state entities).
The EU is a bit of a special case, with its own legal machinery, and the doctrines of vertical and horizontal direct effect, all implemented in the domestic law of each member state.
In some senses, most other international law is essentially agreed conventions or norms of behaviour, without an effective legal enforcement mechanism, more akin to morality or ethics than black-letter law. But one party acting in an immoral or unethical manner within a community will bring consequences upon themselves.
I am still somewhat nonplussed by a minister of the crown baldly stating on the floor of the House of Commons that the UK does not intend to honour its obligations under an international treaty that was freely entered into less than a year ago. Perhaps the heart of it is that they think they (and the UK) are special and not subject to the usual rules of behaviour that apply to others.
As to the specific individuals, they need to look to their professional obligations (can they keep acting for a client who refuses to take their advice, and when told a course of action is illegal is determined to take it anyway) and their personal integrity (which for some politicians might be a struggle).
As Boris Johnson said in the forward to the Ministerial Code: “The precious principles of public life enshrined
in this document — integrity, objectivity, accountability, transparency, honesty and leadership in the public interest — must be honoured at all times” (Annex A adds a seventh, “Selflessness – Holders of public office should act solely in terms of the public interest.”) Of course, but the problem is, he is a liar and a cheat. I don’t trust him, and I don’t think he really believes anything he says.
It seems that just about every lawyer asked today thinks the Commons is being asked to pass illegal legislation
Has there been a move to raise this with The Bar Council, assuming that is that they are not already looking at it themselves?
I have been told that there has been such a move
That might be interesting!