The justice secretary, Robert Buckland, is facing calls to resign over government plans to override international law after another senior law officer, Lord Keen, quit rather than continue to support the controversial policy.
Downing Street confirmed Keen’s departure as advocate general for Scotland. In his resignation letter, he said he “found it increasingly difficult to reconcile what I consider to be my obligations as a law officer with your policy intentions”.
It came a week after the resignation of the government’s top legal civil servant, Jonathan Jones – and turned the spotlight on Buckland, who is also lord chancellor, and the attorney general, Suella Braverman.
A senior Tory source close to Keen said he had offered his resignation after clashing with Braverman during a private discussion they had on Tuesday night about the internal market bill.
The Guardian revealed last week that a rift between the two had emerged after Keen said he believed the government’s attempt to override the EU withdrawal treaty would put ministers in breach of the ministerial code. Braverman and Michael Ellis, the solicitor general, insisted the ministerial code only covered breaches of UK law.
The internal market bill aims to enforce compatible rules and regulations regarding trade in England, Scotland, Wales and Northern Ireland.
Some rules, for example around food safety or air quality, which were formerly set by EU agreements, will now be controlled by the devolved administrations or Westminster. The internal market bill insists that devolved administrations have to accept goods and services from all the nations of the UK – even if their standards differ locally.
This, says the government, is in part to ensure international traders have access to the UK as a whole, confident that standards and rules are consistent.
The Scottish government has criticised it as a Westminster “power grab”, and the Welsh government has expressed fears it will lead to a race to the bottom. If one of the countries that makes up the UK lowers their standards, over the importation of chlorinated chicken, for example, the other three nations will have to accept chlorinated chicken too.
It has become even more controversial because one of its main aims is to empower ministers to pass regulations even if they are contrary to the withdrawal agreement reached with the EU under the Northern Ireland protocol.
The text does not disguise its intention, stating that powers contained in the bill “have effect notwithstanding any relevant international or domestic law with which they may be incompatible or inconsistent”.
Martin Belam and Owen Bowcott
Buckland was pressed on Wednesday about whether he should resign, rather than support legislation that gives ministers the powers to bypass the withdrawal agreement – an international treaty. He said he would do so only if the law had been breached “in a way that cannot be fudged”. He told Sky News the government was not yet at that stage.
Dominic Grieve, a former Conservative attorney general, called on both Buckland and Braverman to resign, rather than support legislation that breaks international law.
Grieve told the Guardian: “The attorney general seems to be an enthusiastic endorser of this completely warped view of international law. She and Ellis don’t appear to have provided any legal precedents for their comments on [breaking] international law in their [advice to the government].
“I’m afraid that I think the lord chancellor’s position is even more clear-cut. He takes an oath of office to uphold or protect the rule of law. The rule of law includes international law.
“Although I feel some sympathy for ex-colleagues because of the position they have been put in, I think [Buckland’s] position is untenable. He should, I’m afraid, have resigned on the day the bill was published. He may have decided to stay and try and moderate [the government’s position]. I can understand that from a moral position but I think that’s wrong.”
The Conservative former solicitor general Lord Garnier praised Keen for taking an honourable course of action and called on Braverman, Ellis and Buckland to consider their positions.
“I have questioned why the law officers are still in office,” he told the Guardian. “Richard Keen has struggled very hard to make the government behave. It has been an unequal struggle. I applaud him for what he has tried to do. He has done the right thing now in resigning. I hope that Richard Keen’s departure will make the AG [attorney general], solicitor general and lord chancellor look very carefully at their positions.”
Joanna Cherry, a senior lawyer and the Scottish National party’s justice spokeswoman at Westminster, said Keen had finally done the right thing by offering his resignation but that it exposed the six Scottish Tories who voted for the measures earlier this week to fresh questions.
“No Scottish law officer could possibly reconcile the lack of regard Boris Johnson and his government has for the rule of law with his or her obligation as an officer of the Scottish courts,” she said.
“It shows, yet again, that this Tory government cannot be trusted. And it leaves Douglas Ross and the six spineless Scottish Tory MPs who voted for the bill totally exposed and in an utterly untenable position.”
Ross, the Tories’ new leader in Scotland, had previously sought to distance himself from Downing Street, resigning as a minister in the summer in protest over Dominic Cummings’ lockdown drive to Durham.
The shadow attorney general, Lord Falconer, said: “The lord chancellor is a decent person and a good lawyer. Lord Keen and Jonathan Jones, both serious lawyers have gone. The lord chancellor cannot stay and expect to be taken as a serious lawyer.”
Keen’s resignation followed testy exchanges with Falconer over the legislation, during which Keen suggested the Northern Ireland secretary, Brandon Lewis, had “answered the wrong question” when he said the bill would break the law.
Lewis flatly contradicted that on Wednesday, telling MPs on the Northern Ireland affairs committee: “I’ve spoken to Lord Keen, when he’s looked at the specific question I was asked last week. He has agreed with me that the answer I gave was correct. That answer I gave reflects the government legal advice.”
No 10 sources suggested Keen had been close to resignation for several days, and said he did not speak to the prime minister on Wednesday.
His departure came despite Downing Street reaching an agreement with Conservative rebels who declined to back the internal markets bill at its second reading on Monday – and an insistence from the prime minister that he was merely taking a “belt and braces” approach to the Brexit negotiations.
The Guardian understands Keen had previously told friends he was staying to “steady the ship”. One ally said: “That’s what he seems to have been doing.”
Lady Chakrabarti, the former shadow attorney general, who faced Keen across the dispatch box in the House of Lords said: “All true Conservatives will be searching their souls today. Governments of both sides have broken domestic and international law this century; sometimes catastrophically.
“But never before, have they bragged about it in advance. There aren’t enough police officers on the planet to achieve the rule of law by force. If there were, who would protect us from them and their paymasters? This is not Conservatism in action, it is something far more terrifying. It has reared its head before in Europe and it doesn’t end well.”