Sir Jonathan Jones, the permanent secretary of the Government Legal Department, is reported to have resigned over plans to undermine the Withdrawal Agreement. This points to a wider struggle about what the rule of law means for the UK, argues Raphael Hogarth
Sir Jonathan Jones has resigned as the Treasury solicitor and permanent secretary to the Government Legal Department, reportedly after a dispute with Downing Street over plans to undermine the Withdrawal Agreement. The announcement of his departure, which will reportedly take effect at the end of his term in April next year, follows reports that the Internal Market Bill, due to be published on Wednesday, will give government powers to override that treaty, effectively repealing legislation that wrote it into domestic law. Doing so could risk placing the UK in breach of its international legal obligations.
Sir Jonathan is by no means the first senior official to resign after clashes with ministers in this government. His resignation is nevertheless extraordinary.
If he considered that he could not, in good conscience, continue to advise and act for the government, then ministers – from the law officers, to the lord chancellor, to the prime minister himself – should consider carefully whether their plans are truly consistent with their commitment to, and duties to uphold, the rule of law.
All civil servants have a duty, under the Civil Service Code, to “comply with the law and uphold the administration of justice”.
The duties of government lawyers go further, though. That is because they are a member of a second profession – the solicitors’ profession or, in Sir Jonathan’s case, the Bar – which imposes extra ethical duties on them, ultimately enforceable by a professional regulator.
Under the Bar Code of Conduct, a barrister’s overriding duty – a duty which can override their duty to their client – is the duty to the court to act with independence in the interests of justice. Barristers also have a duty to return their client’s instructions and cease to act in a particular matter if their instructions require them to act other than in accordance with the law.
Sir Jonathan has not spoken about exactly what led him to resign. There is no doubt, however, that there are limits to what a client can ask their lawyer to do.
Even when the government was threatening to ignore its statutory obligation to extend the Article 50 period last year, Sir Jonathan did not feel that he reached those limits. “What the prime minister and his advisers say is not the law, even if they say it in parliament,” he told an IfG audience in February. “In the end the law is what they do. In the end, the prime minister did comply with the law” [by seeking an extension].
The legislation the government brings forward is not just what it says, but what it does. Sir Jonathan may therefore have felt he had reached the limits on this occasion.
The UK has a dualist constitution. That means that its commitments in international law are not automatically enforceable by the domestic courts. They only become enforceable if incorporated into domestic law by parliament – and parliament, which is sovereign, can always change its mind.
Parliament made the Withdrawal Agreement part of our own law when it passed the EU (Withdrawal Agreement) Act 2020, at the behest of this government. Reports suggest, however, that the Internal Market Bill will seek to override that Act and so the agreement itself, allowing the government to row back on some of its commitments concerning state aid and customs declarations.
The row within government about whether this is acceptable is part of a much wider debate about whether a commitment to the rule of law includes international law obligations of this kind.
Some commentators have argued that civil servants’ duties to follow the law only extends to domestic law, and it is up to ministers whether they follow international law.
When Sir Jonathan spoke at the Institute for Government in February, he made clear that he did not share that view. “Fundamentally, international law is the law,” he said. “It derives from obligations the government has entered into through treaty. The government is subject to the rule of law and will comply with those obligations.”
That is consistent with the UK’s historic interpretation of the rule of law, abroad as well as at home. It may now, however, come into question.
When Robert Buckland was sworn in as lord chancellor, he took an oath under pursuant to his statutory duties under the Constitutional Reform Act 2005: “I do swear in the office of Lord High Chancellor of Great Britain that I will respect the rule of law… So Help me God.”
The law officers – Suella Braverman as attorney general, and Michael Ellis as solicitor general – each have professional duties, as members of the legal profession, to uphold the rule of law. Those three are all, in addition, MPs and ministers in the government.
We will not know the full legal implications of the government’s plans until the Internal Market Bill is in the public domain. When it is, parliament, and the public, will no doubt want to know whether the government is complying with its international obligations. Perhaps more important, however, is whether they think it matters if it breaks them. The question is: what can they tolerate that Sir Jonathan could not?
- Mansfield I and Lightfoot W, Whitehall Reimagined, Policy Exchange, 29 December 2019, policyexchange.org.uk/publication/whitehall-reimagined