The writer, an FT contributing editor, is a former UK government legal service lawyer
The resignation of Jonathan Jones as head of the UK government legal service, announced on Tuesday, has huge significance. It is at least as important as the similar resignation in 2003 of Elizabeth Wilmshurst, then a senior Foreign Office lawyer, over the legality of the Iraq invasion. In both cases, the resignation was not over the merits of a policy decision, but on the apparent willingness of the government at ministerial level to act unlawfully.
The head of the government legal service has the historic and worthy title of treasury solicitor. The position has two main responsibilities: first to ensure that the activity of government, including policy implementation, is on the soundest possible legal basis; second, to defend the work of the government from legal challenges in the courts and at inquiries.
The service is indifferent to the merits of any particular policy. Indeed, many government lawyers, like others in public service, may dislike the policies with which they are dealing. This distaste, however, does not prevent their work.
It is mainly because government lawyers do their work so well, in departments and at hearings, that it is exceptional for the government to be defeated or be subject to adverse findings. Whatever the reason for the resignation of a senior government lawyer it will not, therefore, be because of the merits or otherwise of a policy.
From what has been reported so far, Sir Jonathan is resigning, as Ms Wilmshurst did, because the politician holding the title of attorney-general is proposing a course of action that is contrary to the law — in this case in plans to not comply with parts of the Brexit withdrawal agreement.
This is not a mere difference of interpretation of the relevant law, where reasonable people can disagree. Instead, Sir Jonathan must believe the proposal must be so far outside the scope of valid legal interpretations that there can be no doubt of its unlawfulness. As Northern Ireland secretary Brandon Lewis told the House of Commons on Tuesday, the government is explicitly proposing to break international law, albeit in a “specific and limited” way.
Government lawyers can put up with a lot. In extreme cases, they even provide legal cover for UK complicity in what some people would see as torture of detainees, or for inhuman treatment of asylum seekers and benefit claimants. They can even advise on closing down access to the courts or closing the courts themselves. But there comes a point where the issue moves from legality to illegality, when ministers and their advisers appear to want to disregard or subvert the law.
We may have had an earlier glimpse of Sir Jonathan refusing to allow ministers and advisers to disregard the law in the conspicuous failure of the government to put a signed witness statement before the courts in the 2019 challenge to the prorogation of parliament. No official would put their name to a statement under pain of perjury as to the true reasons for the closing down of parliament, and no minister or adviser would then do so either. That failure meant the government was unanimously defeated in the Supreme Court.
Therein perhaps lies the practical significance of the treasury solicitor’s resignation. Senior figures in the UK government are irked by the checks and balances provided by law and the courts and by an impartial civil service. They do not like anyone being able to say “no” or “this cannot be done in a certain way”.
Such hubris may meet its nemesis. A contempt for law and proper process often brings short-term gains at the cost of wider problems. The government legal service does quiet but strong and solid work in ensuring administration and policy are sound and not easily disturbed. Undermining the lawful basis for government action is never a wise thing to do.
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