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Minister Avoids Confirming If Top Legal Advisor Was Consulted On Northern Ireland Protocol Legislation


3 min read

Foreign office minister James Cleverly has refused to confirm whether the government consulted a top legal adviser over the legality of the contentious Northern Ireland Protocol legislation.

Responding to an urgent question in the Commons on Thursday, Cleverly said he was “confident” the legislation, which is expected to be presented to the Commons in the coming days, does not breach international law.

PoliticsHome revealed earlier this week that concerns have been raised at the top of government over the legality of the legislation, which is due to be put before parliament in the coming days.

In the leaked correspondence, a senior figure advising the government on legal matters says they hold the view that it cannot be "credibly" argued on legal grounds that there is currently no alternative to unilaterally disapplying the treaty, and that it is "very difficult" for the ministers to make that case.

But Cleverly, who holds the position of Minister for Europe, told the Commons on Thursday in a response to an urgent question that their plans were “lawful”.

"The government is confident that our actions are lawful under international law and in line with long standing convention we do not set out internal legal deliberations," he said.

The minister was responding to an urgent question by Liberal Democrat MP Alistair Carmichael, who asked the government whether the government's top independent legal adviser was properly consulted on the legality of overhauling the Northern Ireland Protocol.

“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,” Carmichael said.

He added that Boris Johnson’s claims “now appear at the very least… incomplete” following reports by Sky News that Eadie was not asked to offer his view on the specific issue of unilaterally scrapping an international treaty. 

“Sir James is understood to have volunteered that he found the argument of one particular lawyer advising the government caught considerably easier to follow and more convincing,” he continued.

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

Following repeated questions from MPs on the topic, Cleverly repeated the answer that the government “do not set out internal legal deliberations”.

The Northern Ireland Protocol, agreed by the UK and EU as part of Brexit talks, has been the primary source of tension between London and Brussels since its implementation at the start of last year. 

It was designed to avoid a contentious hard border on the island of Ireland, but resulted in new barriers to trade between Great Britain and Northern Ireland.

Downing Street argues that it has been left with no choice but to alter the protocol through primary legislation after failing to reach an agreement following many months of negotiations with the EU.

Confirming plans for the legislation last month, Truss said the government had a "clear necessity to act" after the Democratic Unionist Party (DUP) blocked the formation of a government in Northern Ireland over its opposition to the treaty.

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