Are ministers who are also barristers guilty of serious professional misconduct as a result of the government’s announcement that it intends to break international law today?

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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 Lewis
I 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.
The point that I hope that the Bar Council might consider sometime soon is, in that case, whether or not a serving minister saying that they intend to introduce a law knowing that it breaches international law represents professional misconduct carrying resounding overtones of seriousness that represents 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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