The explosive departure of the UK government’s most senior lawyer on Tuesday was prompted by a furious dispute at the heart of Whitehall over the legal implications of Britain’s failure to secure a post-Brexit trade deal with the EU.
But while Jonathan Jones’s resignation as head of the government’s legal department was met with alarm and surprise by MPs and most of the civil service, for those in government working on preparations for the end of the Brexit transition period, it came as little surprise.
Since the early part of the summer, the Cabinet Office and the attorney-general’s office have been at loggerheads about the UK’s legal stance and commitments to the EU in the event that no deal can be secured in time for the transition’s December 31 deadline.
One person familiar with the events leading up to Sir Jonathan’s decision to resign said it followed months of tension over the handling of the Brexit negotiations and legal disagreements with attorney-general Suella Braverman.
Officials said the clash between officials and ministers that erupted in public this week began when Ms Braverman examined the legal consequences of no deal. “His resignation didn’t come out of nowhere, it has been brewing for some time,” said one well-placed official.
Ms Braverman was appointed by Boris Johnson in February, replacing Geoffrey Cox, who was sacked by the prime minister for making what one insider described as “uncomfortable noises” about the importance of abiding by international law.
Sir Jonathan is understood to have been dissatisfied with Ms Braverman’s initial interpretation of the legal implications of a no-deal Brexit, and requested official advice from government law officers.
Those close to Sir Jonathan said he was “very unhappy” about the decision to overwrite parts of the Northern Ireland protocol, part of the 2019 withdrawal agreement, with new powers in the UK internal market bill.
Two people familiar with the discussions said questions were raised over whether the government’s plans to override the Brexit withdrawal agreement were in breach of the ministerial code that obliges ministers to follow the law, including international law.
According to one person familiar with the matter, external advice was commissioned that determined the government, while free to legislate domestically as it saw fit, would be in breach of international obligations if it legislated in contradiction to the withdrawal agreement.
In the end, and with the advice of the government’s law officers split, Downing Street decided to plough on. Sir Jonathan decided he had no option but to resign.
A few hours after the FT broke the story of Sir Jonathan’s resignation, the Northern Ireland secretary Brandon Lewis confirmed the government’s legal position, telling parliament that the new legislation would renege on parts of the withdrawal agreement. “This does break international law in a very specific and limited way,” he told MPs.
Sir Jonathan became head of the government’s legal department in 2014, having previously worked as a legal adviser and solicitor at the Home Office, the attorney-general’s Office and the Department for Education. He is also a senior barrister and widely respected across Whitehall, although dismissed by Mr Johnson’s inner circle as a “Remainer”.
“Jonathan was one of the good guys,” said a person familiar with the internal deliberations. “He’s a man of enormous integrity.”
One former colleague said: “He is a person of personal modesty. He is not someone who has ever wanted to push himself into the limelight. If he has done this it demonstrates that he must see what they are doing as a terrible insult to the law.”
Dave Penman, head of the FDA union that represents senior civil servants, said Sir Jonathan’s departure was “an extraordinary decision of principle” that represented “the very best values of an impartial and professional civil service”.
“In a year where we have witnessed permanent secretaries resign live on TV, get thrown under a bus by ministers and quietly go in numbers, [this] can no longer be explained simply as churn,” he said.
Sir Jonathan’s departure is the latest instalment in the clash between Mr Johnson’s Downing Street and the politically-neutral civil service. Dominic Cummings, the prime minister’s right-hand man, has promised a “hard rain” will fall across Whitehall — which has materialised in a series of resignations.
His resignation follows the exit of cabinet secretary Mark Sedwill, Simon McDonald from the Foreign Office, Philip Rutnam from the Home Office, Richard Heaton from the Ministry of Justice and Jonathan Slater from the DfE.
While the resignation of the other five senior officials instilled further concern across the civil service about its ability to remain politically independent, the departure of the government’s most senior lawyer on a matter of principle has fed much deeper fears across Whitehall.
“This is going to be tough for senior and junior civil servants. If they are now dealing with actions that will break the law, they will be put in a very difficult position,” said one government insider.
One senior Whitehall figure said his resignation was “far worse” than any others for the morale of officials. “The civil service really believes in this stuff, it really was a point of principle. Jonathan’s resignation would suggest a really fundamental point of propriety.”
Opinion, however, is still divided in Westminster on whether the government’s tough stance on the internal market bill and breaking international law is a bluff to show Mr Johnson is serious about leaving the EU with no deal or whether it will follow through its tough talk with tough actions.
“Maybe they are willing to sacrifice this one lawyer to prove they’re really serious about no deal? For Boris, it might be worth it to get what he wants on Brexit,” said one former cabinet minister.
One well-placed Whitehall figure suggested that Downing Street’s stance went beyond its issues with the withdrawal treaty and was in fact about its agenda to tackle “activist judges” and examine the role of judicial review.
“Number 10 are doing this deliberately to pick a fight with the judiciary. They want to put the judges and Supreme Court on [the] wrong side of popular opinion. It’s a mistake to assume this is all about Brexit.”
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