It came as little surprise when Lord Keen of Elie, the UK Government’s law officer for Scotland, tendered his resignation in the wake of Brandon Lewis’s statement that the UK Internal Market Bill would break international law “in a very specific and limited way.” In fact the only real question is what took the Advocate General so long.
Richard Keen QC is a former Dean of the Faculty of Advocates and well respected at the Scottish bar as an extremely able lawyer. In 2018 he represented the UK Government in the case about whether Article 50 could be unilaterally revoked and, in 2019, in the prorogation case. The fact that he lost both cases should not be taken as any reflection upon his abilities or his probity.
The UK Govt’s highest Scots law officer has resigned over Boris Johnson’s desire to break international law and grab powers from the Scottish Parliament.
— The SNP (@theSNP) September 16, 2020
In the prorogation case, for example, until the UK Supreme Court’s unanimous ruling, there was a degree of disagreement about whether the course of action pursued by Boris Johnson had been unlawful. Here there can be no doubt. It is there in black and white in the bill that parts of it will have effect “notwithstanding any relevant international…law with which they may be incompatible or inconsistent”.
To argue as Suella Braverman, the English Attorney General, has done that the English doctrine of parliamentary sovereignty means that it is lawful for the UK to override the obligations Boris Johnson signed up to in the Withdrawal Agreement is legally illiterate. As recently as 2017 the UK Supreme Court confirmed that treaties between sovereign states are governed by international law not by the domestic law of any state. If Suella Braverman had applied the most rudimentary legal analysis, she would realise that this means, so far as international law is concerned, the English doctrine of parliamentary sovereignty cannot supersede the UK’s obligations in the Withdrawal Agreement.
Richard Keen’s departure was hastened by a less than impressive appearance before the Lords EU Withdrawal Committee and, earlier in the Lords, when he tried to slither out of the consequences of Brandon Lewis’s admission by saying Mr Lewis had “essentially answered the wrong question.”
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🏴 Let’s make it loud and clear: hands off Scotland’s powers. pic.twitter.com/xbIytEwFGU
— The SNP (@theSNP) September 9, 2020
Well, Lord Keen has now answered the right question – whether any law officer worth their salt can remain a Minister in the Johnson Government – correctly.
Notwithstanding some typical Tory skulduggery when in 2015 they changed the wording of the Ministerial Code; England’s Court of Appeal has held that the overarching duty of ministers to comply with the law in that code includes international law. So Richard Keen must have been pretty worried about his duties as a Minister as well as an Officer of the court.
The English Law officers should really tender their resignations for the same reason, but I suspect they won’t, because, unlike Keen, they have been selected for their slavish devotion to the Johnson agenda rather than their legal ability.
One big question remains. Who will replace Richard Keen? I suspect Johnson will find it hard to find anyone of suitable seniority at the Scottish Bar who is willing to do so. Should the role remain vacant section 87(3) of the Scotland Act stipulates that the Advocate General’s functions shall be exercisable by another Minister of the Crown chosen by the Prime Minister. One more lickspittle without a clue about Scotland’s law or constitutional tradition telling us what to do should go down well in Scotland.