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Suella Braverman continues to disgrace the profession

and all who voted for this shower.

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Attorney General @SuellaBraverman still hasn’t resigned, but she has broken her recent silence on the Internal Market Bill by publishing a statement of HM Government’s ‘legal position’ on it. It runs to one side of A4. And it is utterly risible. /1

https://twitter.com/ProfMarkElliott/status/1304076133827309569

 

The Secret Barrister is having none of her bullshit either

https://mobile.twitter.com/BarristerSecret/status/1304071480687419397

The legislation which implements the Withdrawal Agreement including the Northern Ireland Protocol is expressly subject to the principle of parliamentary sovereignty.

Yeah but the WA itself isn't, you brain cell free zone.

Heh at guy getting on his high horse about the quality of other’s legal advice

 

LP - could I just check, is it your contention that the WA has direct legal effect in the UK without need for legislation? 

I think the contention is that Ms Braverman is a fooking idiot if she believes this, and disgrace if she doesn't and published it anyway.

Don't change the focus, embrace the fact that your heroes are criminals.

GOSH SHE’S VERY CLEVER ISN’T SHE!

PARLIAMENT IS SOVEREIGN SO IF PARLIAMENT DECIDES TO BREACH INTERNATIONAL TREATIES THEN IT’S NOT A BREACH OF INTERNATIONAL LAW

I CAN’T BELIEVE NO-ONE THOUGHT OF THAT BEFORE!!

Have you ever come across an argument advanced that is so preposterous that it almost becomes difficult to articulate a reasoned response; since you want to say about a dozen things at the same time? This happens to me and I put this in that  bracket.

I don’t know why the mafia didn’t use this argument when being prosecuted - they live by the mafia code - the murder was in line with mafia code so how could it possibly be a breach of criminal law?

GSM the point is not that it has direct effect but that it is nonetheless binding on us under international law, which doesn't give a shit about parliamentary sovereignty. 

I’m not aware I’ve ever expressed the view that SB is my hero, jelly, but you keep making things up. 

i think there’s a genuine question whether some of the criticism here is borne out of racist views however. 

PARLIAMENTARY SOVEREIGNTY MEANS WE CAN BREAK INTERNATIONAL LAW IF WE WANT TO BUT WE ACTUALLY WON’T HAVE BROKEN IT ACTUALLY BECAUSE PARLIAMENTARY SOVEREIGNTY

PARLIAMENTARY SOVEREIGNTY!!

LP I probably used a slightly indelicate turn of phrase; just to clarify, you think treaties are binding without implementing legislation? In all cases, or just this one?

i think there’s a genuine question whether some of the criticism here is borne out of racist views however.

I BET THAT CAMBRIDGE PROFESSOR WHO SAID HER ANALYSIS IS “RISIBLE” AND THEN EXPLAINED WHY ONLY DID SO BECAUSE HE’S RAAAAACIST!!

LP - If I have understood some of your previous postings, I think you have more knowledge than many as to how government legal services operate (apologies if I have got this wrong). If that is correct, then who would need to sign off on that kind of statement at a 'legal' level? Presumably they must have obtained 'the best' legal advice?

heroes - plural, meaning the tories who plan to breach international law. I love how you are so keen to call out racism, when it's solely down to her intelligence/integrity.   Why do you automatically link intelligence and/or integrity to matters of race?  Weird.  

It is really quite simple there are 2 legal questions - is the proposed act legal under domestic law?  Of course it is Parliament is sovereign.  Is it legal under international law?  Of course it isn’t.  Extraordinarily SB has tried to fudge these two very simple questions and obvious answers to create the worst legal advice I have ever seen - it is really hard to see what she is hoping to achieve

LP - If I have understood some of your previous postings, I think you have more knowledge than many as to how government legal services operate (apologies if I have got this wrong). If that is correct, then who would need to sign off on that kind of statement at a 'legal' level? Presumably they must have obtained 'the best' legal advice?

It's some time since I worked for the government but my best guess is that they will have asked Jonathan Jones to sign off on it and he refused to do so, hence the resignation. I'm not sure whether that has happened before or what the process is when it does, but I imagine they will have had an external legal opinion on it. Pretty sure the buck ultimately stops with Ms Braverman herself though.

Does this mean any state can breach its international treaty obligations so long as that breach is ratified by the governing body in that state? Has someone told Iran? 

LP I’m afraid I don’t understand your reasoning.
 

Either you are contending that the WA is binding irrespective of legislation, or you are arguing that parliament can’t amend its own legislation. But you appear to have said you don’t agree with either. I’m not trying to trick you, just to understand your argument. 

Thanks LP. I  can't imagine she sat down with a blank piece of paper at the back of the Drummond and crafted that prose over a Babycham. Someone, somewhere, with some real legal kNOwledge of the specific area must have had some input.

Definite stench of high minded, leftist racism on this thread

Unless Irish are happy, trade deal will not pass through Congress

Have the Cabinet even read the Good Friday Agreement ?

Either you are contending that the WA is binding irrespective of legislation, or you are arguing that parliament can’t amend its own legislation. But you appear to have said you don’t agree with either. I’m not trying to trick you, just to understand your argument. 

International treaty obligations come into effect not when the treaty is signed but when it is ratified by signatory states. 

In an EU context, for example, the 1972 accession treaty was signed by the UK, Ireland, Denmark and Norway, but never ratified by Norway so never came into effect in respect of Norway. 

In the UK typically the government would use its famous prerogative powers to sign a treaty but then parliamentary input is required in order to ratify it. (See the CRAG Act if you're interested.)

The point here is that these things have already happened. The UK signed the withdrawal agreement and parliament ratified it, which means that once the withdrawal legislation was passed it became binding on the UK in both domestic and international law.

Technically under domestic law parliament could repeal or amend that legislation, but that wouldn't change the position under international law. We would still be bound by our obligations and we can only amend or withdraw from those obligations in accordance with the treaty itself (or international law on treaties if the treaty is silent on the matter).

Hope this helps.

Misogyny, too. 

Nobody is criticising Suella Braverman because she is a woman, or because she is not white. We are criticising her because she is wrong. If Geoffrey Cox tried to pull this stunt we would be saying exactly the same things.

LP, it does thanks. In this case it is clear that the implications of amending the domestic legislation are understood (not as in eg factortame, oh the govt probably didn’t mean to repeal the ECA) so I would expect UK courts (at least below Supreme Court level) to uphold the amended legislation 

Earlier on this thread I commented that I thought there was a genuine question whether some of the criticisms of SB were borne out of racist views. 
 

I’m pleased to say that many of those posting criticisms replied to say they weren’t. 
 

I think GSM raises an important point about parliamentary sovereignty and international law though. They just aren't compatible.

We tell ourselves this lie that parliament can't bind its successors, but in fact that is exactly what parliament is doing every time it ratifies an international treaty.

Like anything else Anna I suppose it has to weigh up the consequences of its decision - in this case, presumably, a battering in the ICJ and being turned into a pariah state just when it needs friends the most

38Parliamentary sovereignty

(1)It is recognised that the Parliament of the United Kingdom is sovereign.

(2)In particular, its sovereignty subsists notwithstanding—

(a)directly applicable or directly effective EU law continuing to be recognised and available in domestic law by virtue of section 1A or 1B of the European Union (Withdrawal) Act 2018 (savings of existing law for the implementation period),

(b)section 7A of that Act (other directly applicable or directly effective aspects of the withdrawal agreement),

(c)section 7B of that Act (deemed direct applicability or direct effect in relation to the EEA EFTA separation agreement and the Swiss citizens’ rights agreement), and

(d)section 7C of that Act (interpretation of law relating to the withdrawal agreement (other than the implementation period), the EEA EFTA separation agreement and the Swiss citizens’ rights agreement).

(3)Accordingly, nothing in this Act derogates from the sovereignty of the Parliament of the United Kingdom.

I think the point is that when you do a treaty with another country or even a big bloc of countries and breach it that is contrary to intenational law.  If you are the US or China nothing happens to you.  If you have chosen to be Billy No Mates then you get fooked over by the big boys and bad things happen to you.

“I think GSM raises an important point about parliamentary sovereignty and international law though. They just aren't compatible.

We tell ourselves this lie that parliament can't bind its successors, but in fact that is exactly what parliament is doing every time it ratifies an international treaty.“

 

Anna we are normally ad idem on this but it is not an interesting point.  There are just two entirely distinct issues one in relation to internal governance and one in relation to external obligations.  The fact we happen to have the principle of parliamentary sovereignty is nothing to the point,  All nations have the right to organise themselves constitutionally internally  however they like it doesn’t impact their international obligations one iota.  Parliament is sovereign just as present you is not bound by past you, but that doesn’t mean you don’t honour obligations entered by past you.

“I think GSM raises an important point about parliamentary sovereignty and international law though. They just aren't compatible.

We tell ourselves this lie that parliament can't bind its successors, but in fact that is exactly what parliament is doing every time it ratifies an international treaty.“

 

Anna we are normally ad idem on this but it is not an interesting point.  There are just two entirely distinct issues one in relation to internal governance and one in relation to external obligations.  The fact we happen to have the principle of parliamentary sovereignty is nothing to the point,  All nations have the right to organise themselves constitutionally internally  however they like it doesn’t impact their international obligations one iota.  Parliament is sovereign just as present you is not bound by past you, but that doesn’t mean you don’t honour obligations entered by past you.

Is it like the Canadian Navy firing 50mm 'warning shots' over Spanish fishing boats and the International Court of Justice taking five years to decide that they didn't have jurisdiction?

‘Is it like the Canadian Navy firing 50mm 'warning shots' over Spanish fishing boats and the International Court of Justice taking five years to decide that they didn't have jurisdiction?‘
 

no it’s nothing like that, not least because the Withdrawal Agreement has its own dispute resolution system

Whilst clearly the govt is acting outrageously I have a serious question here.

What happens when we sign an FTA with the US that seeks to entrench various investor rights for US Pharma and open up the NHS. Perhaps also agreeing never to implement any silly little things like additional environmenal laws that might increase their costs and perhaps also agreeing to, say, make strikes illegal. And who knows what else might be needed to lock ourselves into the US. And oh woopsadaisy the Tories forget to put a sunset clause in it or an equivalent to Article 50.

Would our position then be that we have to suck it up forever because its become binding international law?

Im not exaggerating that much. From the perspective of the Right that is exactly what happened with the EU. (And if we hadnt insisted there wouldnt even have been an Article 50). If you were a Unionist thats what the TMPM deal and the Protocol did. Locking in the one outcome they want to avoid forever. For them it was every bit as outrageous as a total sell-out to the US would be for most Brits.

Whilst everyone is up in arms about the govt, has anyome given any thought to what happens when Dom passes that US FTA and then takes up his consultancy position with BigUsPharmaCo a few days after he loses an election? You can guarantee that everything that is being said now about the Protocol will be thrown back at the Left. Especially if there is no intention to  overturn the Protocal but just wrangle a final concession from the EU before caving in.

International law must never become binding in the UK. We should always be entitled to overturn it if need be.

I agree that this is not the time to overturn the Protocol - just months after signing it snd in a tantrum coz were not getting our own way. Clearly if they are serious about this it is going to cause vast and justified reputational damage. But i dont disagree that in principle we ought to be able to.

That said -  the piece of advice itself is rubbish for reasons other have explained.

"i think there’s a genuine question whether some of the criticism here is borne out of racist views however. "

are you for real?

 

As for Braverman's legal opinion, i am struggling to see how it is at all legal. Policy statement more like. Cummings statement topped and tailed. 

And EU's statement: 

 

Statement by the European Commission following the extraordinary meeting of the EU-UK Joint Committee
London, 10 September 2020
Following the publication by the UK government of the draft “United Kingdom Internal Market Bill” on 9 September 2020, Vice-President Maroš Šefčovič called for an extraordinary meeting of the EU-UK Joint Committee to request the UK government to elaborate on its intentions and to respond to the EU's serious concerns. A meeting took place today in London between Vice-President Maroš Šefčovič and Michael Gove, Chancellor of the Duchy of Lancaster.
The Vice-President stated, in no uncertain terms, that the timely and full implementation of the Withdrawal Agreement, including the Protocol on Ireland / Northern Ireland – which Prime Minister Boris Johnson and his government agreed to, and which the UK Houses of Parliament ratified, less than a year ago – is a legal obligation. The European Union expects the letter and spirit of this Agreement to be fully respected. Violating the terms of the Withdrawal Agreement would break international law, undermine trust and put at risk the ongoing future relationship negotiations.
The Withdrawal Agreement entered into force on 1 February 2020 and has legal effects under international law. Since that point in time, neither the EU nor the UK can unilaterally change, clarify, amend, interpret, disregard or disapply the agreement. The Protocol on Ireland / Northern Ireland is an essential part of the Withdrawal Agreement. Its aim is to protect peace and stability on the island of Ireland and was the result of long, detailed and difficult negotiations between the EU and the UK.
Vice-President Maroš Šefčovič stated that if the Bill were to be adopted, it would constitute an extremely serious violation of the Withdrawal Agreement and of international law.
If adopted as proposed, the draft bill would be in clear breach of substantive provisions of the Protocol: Article 5 (3) & (4) and Article 10 on custom legislation and State aid, including amongst other things, the direct effect of the Withdrawal Agreement (Article 4). In addition, the UK government would be in violation of the good faith obligation under the Withdrawal Agreement (Article 5) as the draft Bill jeopardises the attainment of the objectives of the Agreement.
The EU does not accept the argument that the aim of the draft Bill is to protect the Good Friday (Belfast) Agreement. In fact, it is of the view that it does the opposite.
Vice-President Maroš Šefčovič called on the UK government to withdraw these measures from the draft Bill in the shortest time possible and in any case by the end of the month. He stated that by putting forward this Bill, the UK has seriously damaged trust between the EU and the UK. It is now up to the UK government to re-establish that trust.
He reminded the UK government that the Withdrawal Agreement contains a number of mechanisms and legal remedies to address violations of the legal obligations contained in the text – which the European Union will not be shy in using.
STATEMENT/20/1607

I wonder whether brexiteers ever paused to consider now - is this what they voted for?
 

its not 

other than the racists, they voted to prevent “ever closer union”

this clusterfvck was unprecedented by everyone

Chill - I agree that this isnt what most Brexiters voter for but tbh this sort of descent into damaging acrimony was always a highly likely outcome.
 

Unprecedented I suppose, but there are plenty of examples of secession attempts getting messy.

That said confirmation bias is such a powerdul thing that I doubt many Brexiters have changed their mind. Same with Reaminers too ofc.

Very few people have changed their minds either way, but remainers have been given absolutely no reason to (other than "the people have spoken so I guess we've got to get on with it", which isn't the same as believing it to be a success).

She's only 40, apparently. What on earth will she do after the next election when the Tories are out of power for a generation? She'll certainly never work in the legal profession again.

Also, the more idiot politicians I learn read law at Oxford or Cambridge, the more questions I have about the admissions process. 

Imagine interviewing Suella Braverman or Dominic Raab and thinking, "this is the cream of the crop".

Some of the most incapable lawyers I have ever worked with have Oxbridge degrees.

Also some of the most brilliant people.

Academic success is not necessarily indicative of the kind of intelligence you need to be roundly successful in your chosen career. They don't teach you common sense in those cloistered halls.

Yes but I struggle to see how anyone with an IQ of above 85 could have drafted that drivel Braverman issued the other day. Surely even academic success would put you above the threshold for being able to produce such nonsense, even if you have no common sense.

Well she had to put something out didn't she and given the utter hopelessness of the Government's position I am not sure even a genius could have done any better. The only alternative would be for her to resign and claim the moral high ground, but frankly she doesn't seem the type.

She should have just written that it is not a breach of domestic law that it is a breach of our international treaty obligation but the decision to do that weighed up against the national interest is a political one - this stuff isn’t hard

So what lies behind ultra-loyalist Suella Braverman’s rise to the top? | Nick Cohen

Sat 12 Sep 2020 19.00 BST

In the attorney general, Boris Johnson has the ideal stooge for his reckless nation-splitting policies

Attorney general Suella Braverman

Attorney general Suella Braverman: she ‘has been auditioning for the role of useful idiot for years’. Photograph: Stefan Rousseau/AP

If you wanted to be kind, you could say that the attorney general is no worse than any other politician on the make: she advances her career by telling her party what it wants to hear. If you wanted to be unkind, you could say that the attorney general is a deluded dogmatist who feeds the paranoia of the Tory party’s base while betraying her professional principles to please its dictatorial leaders.

I want to be unkind because the British constitution (what’s left of it) says that the law officers should not be like other politicians. The lord chancellor, as head of the Ministry of Justice, swears an oath promising he “will respect the rule of law”. The attorney general is the government’s barrister, who, in the words of the Conservative MP and former solicitor general Oliver Heald, must make surethat “ministers act lawfully, in accordance with the rule of law”.

Yet Suella Braverman, the attorney general, and Robert Buckland, the lord chancellor, have told Boris Johnson’s ministers and the civil service that they are just fine with them breaching international law and tearing up the EU withdrawal agreement. The Treasury solicitor, Sir Jonathan Jones, resignedrather than allow Johnson to besmirch his good name. But further up the hierarchy, the law officers have surrendered without a fight, without even wanting a fight, without even grasping why there needed to be a fight. As they were always going to. Their willingness to bend to his will is why Johnson appointed them in the first place.

Johnson understands the fatal weakness of liberal democracy. Like a gangster eying up the cops as he moves into a new territory, he knows that its defences count for nothing if he can control law enforcement. Let the strongman take power and he can subvert laws and conventions, however immutable the naive imagine them to be.

The attorney general must make sure that “ministers act lawfully, in accordance with the rule of law”. Yeah? Really? Look what Johnson’s gone and got himself: an attorney general who says he can do what the hell he likes! Johnson has chosen well. Braverman has been auditioning for the role of useful idiot for years and bears as much responsibility as Johnson does for our collapse into gormless authoritarianism.

People should pay more attention to the tales she spun about herself as she built her career on the right. Appealing to the prejudices of Tory party members on the Conservative Home website, Braverman cast herself as a victim of progressive snobbery. “When I was involved in my University Conservative branch at Cambridge in the early 2000s, Blair-supporting friends were constantly baffled by my political allegiance. Starting my career as a young barrister in London, I was the shy Tory in my chambers of ‘right-on’ human rights lawyers. Despite the social stigma, I was inspired by Conservative values of freedom from an interventionist state, personal responsibility and choice.”

Braverman bears as much responsibility as Johnson does for our collapse into gormless authoritarianism

This is the sob story that has taken Britain out of the EU and taken Johnson into Downing Street. Liberal elitists block anyone who challenges them and look down their dainty noses at the solid, traditional values of good old England. To read Braverman you would think she had fallen in with the young Cherie Blair at Matrix Chambers or another metropolitan nest of “activist lawyers”. Barristers, who spoke to me on condition of anonymity for fear that the attorney general’s office would blacklist them, said she went to 2-3 Gray’s Inn Square (now Cornerstone) when she arrived in London in 2005. Far from being a chambers of “right-on” lawyers, it was filled with regular barristers whose number had included Patrick Ground, a former Tory MP. She and her colleagues were not fighting the police and the Home Office. They were dealing with ordinary disputes about development plans and the licensing of pubs and betting offices. Important work, no doubt about it, but hardly the frontline of the struggle for civil liberties.

When she moved on to a large set of Birmingham barristers, her profile boasted that she was a “contributor to Philip Kolvin QC’s book Gambling for Local Authorities, Licensing, Planning and Regeneration (2007)”. Not much to boast about to you and me, but in the legal world it would be considered a significant achievement for a young lawyer to be a part of an authoritative legal textbook. Unfortunately, Braverman’s name does not appear anywhere in the volume.

The Conservative press built her up as a Premier League barrister rather than a jobbing lawyer who did everyday parole and immigration cases. She had defended “the Ministry of Defence in the Guantánamo Bay inquiry”, according to reports. Her own website says she was “involved”.

Private Eye has tried, I have tried and lawyers have tried to find a record of her defending the MoD at a Guantánamo inquiry. We are still trying.

I emailed Braverman’s office and asked what her work at the Guantánamo inquiry had been. I asked about her contributions to legal textbooks and for the name of her “right-on” human rights chambers. I gave 24 hours notice and phoned to check if her staff had received the email. At the time we went to press, she was unable to comment. Braverman’s resentment speaks for itself, however. It is not the resentment of the poor or oppressed but of the privileged who don’t quite make it to the top. Perhaps in her mind, liberal lawyers did sneer at her or would have done if they had the chance. Perhaps she would have been saved from a run-of-the-mill legal career if only she had been given a break. Amid the confusion in the stories she tells about herself, Braverman’s self-pitying, unproved belief that the legal system, with its Human Rights Act, judges appointed without political interference and respect for the rule of law, has somehow stigmatised her rings true. She is taking her vengeance now.

• Nick Cohen is an Observer columnist

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