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Some (unpopular) personal impressions follow about professional/ministerial ethics and retrospectively rewriting the withdrawal agreement.
If Parliamentary sovereignty - a notion at the heart of most lawyers' idea of our rag-tag constitution - means anything it must mean Parliament can enact (thus Ministers can advise on and recommend) the bringing of legislation that breaches international law. /1
Whether it is a 'good idea' to breach international law is a political judgment, which (like most) raises ethical and other political considerations, but unless you want to argue Parliament is not supreme, Ministers must be free to recommend that Parliament does it. /2
A closely related point might be made by reference to Parliamentary privilege, a principle enshringed in the Bill of Rights, which says Courts must have proper regard to that which is within the province of Parliament. See eg from the Unison case ( https://www.bailii.org/ew/cases/EWHC/Admin/2010/2655.html). /3
What this means in practice is that scope for the Courts to get involved with a decision (by Act of Parliament) to breach international law is (I would say, rightly) very limited indeed, if not non-existent. /4
That does not mean that the series of events (which @GoodLawProject has blogged about here https://goodlawproject.org/news/times-of-jeopardy-for-democracy/) does not raise very serious legal concerns. /5
More specifically, the decision to appoint as Attorney General a relatively junior lawyer (Suella Braverman) - and to keep her after highly contentious (to put it politely) judgments calls (ie that Cummings did not break the law) speaks to something profoundly troubling. /6
What it speaks to is a Government that has little interest in knowing what the law is; a purely expedient interest in complying with the law; a dominant interest in receiving political cover for those occasions when it (in reality) chooses to break the law. /7
This behaviour is ethical anathema to any lawyer worth the name. Like a fish rotting from the head down it damages the culture of adherence to the law that is a quality dear to most lawyers and that has hitherto been a feature of our practice (see eg https://twitter.com/JolyonMaugham/status/1169846672572026889). /8
Looking over the reporting of Sir Jonathan's resignation yesterday ( https://www.ft.com/content/6186bf1c-055b-4de6-a643-4eea763e1b94), it appears that it was this feature - finding himself serving a Government that wanted legal advice that was wrong because it was expedient - that he may have found too much to bear. /9
What does all of this mean for the professional regulation of lawyer politicians (c.f. legal twitter last night)?
It means that @RobertBuckland, Lord Chancellor to a Government that has decided to break international law, shares political responsibility for that decision. /10
It means that @RobertBuckland, Lord Chancellor to a Government that has decided to break international law, shares political responsibility for that decision. /10
But unless he has given legal advice that the decision was lawful (and I have seen no evidence he did) there is (I think) little or no aspect to his conduct for a regulator to examine. /11
However, the giving of legal advice you cannot objectively believe to be right for personal or political gain is the sort of conduct I wrote about here https://waitingfortax.com/2014/08/07/weak-transmission-mechanisms-and-boys-who-wont-say-no/ and does, I think, raise matters in respect of which a regulator should properly take an interest. /End
