Brexit: why the British government’s top lawyer had to resign

Jonathan Jones’s decision to resign as the Government’s top lawyer will surprise anyone who believes the Government’s account of what is going on this week. A new bill is planned, which will give Britain the right to decide how to apply the UK-EU Withdrawal Agreement in relation to Northern Ireland. Ministers have ben saying, and the media reporting, that what is planned is nothing more than a tidying up of some ambiguous technical details: Britain’s commitment to the Withdrawal Agreement (we are told) is as strong as ever.

This is nonsense, as Jones clearly realises. Moreover, the nonsense is easily exposed. For example, here is what the Northern Ireland protocol of the Withdrawal Agreement says about trade between Northern Ireland and the rest of the UK:

A good brought into Northern Ireland from outside the Union shall be considered to be at risk of subsequently being moved into the Union unless it is established that that good:

(a) will not be subject to commercial processing in Northern Ireland; and

(b) fulfils the criteria established by the Joint Committee in accordance with the fourth subparagraph of this paragraph.

Before the end of the transition period, the Joint Committee shall by decision establish the criteria for considering that a good brought into Northern Ireland from outside the Union is not at risk of subsequently being moved into the Union.

So detailed decisions about the enforcement of trade between mainland Britain and Northern Ireland should be made by the “Joint Committee”. This is to be run jointly by the UK and EU, co-chaired by both together.

What if the Joint Committee fails to reach agreement on what goods are “not at risk”? Boris Johnson’s Government now proposes that Britain alone will decide where to draw the line between goods that are, and are not, liable to enter the EU through Ireland – and hence which companies will and will not be subject to strict regulation and detailed paperwork.

This is not tidying up the Withdrawal Agreement: it is defying a formal treaty that Johnson negotiated and which Parliament ratified. The Agreement makes clear that the default position is that all goods exported to Northern Ireland across the Irish Sea shall be considered at risk of being sold into the EU. The list of exempt goods needs the specific agreement of the Joint Committee if traders are to avoid the regulatory burdens that apply to post-Brexit trade with the EU.

Similar arguments apply to the issue of state aid and UK companies operating in Northern Ireland. The Withdrawal Agreement does not allow Britain to be judge and jury in its own cause.

Seldom has a legal argument been so open-and-shut. It is hard to imagine any competent lawyer supporting the Government’s case. Jonathan Jones has taken the only honourable route open to him.

This blog was first published by The Article