‘Very hard to understand’ how Lord Keen QC can remain Advocate General for Scotland

Lord Keen of Elie QC

A law proposed by the government would fall foul of the Brexit deal it signed with the EU last year. The bill allows ministers to “disapply” rules agreed over the goods that cross between Britain and Northern Ireland.

Section 45(1) of the Internal Market Bill states that certain provisions “have effect notwithstanding any relevant international or domestic law with which they may be incompatible or inconsistent”.

Northern Ireland Secretary Brandon Lewis told MPs this week that the bill would “break international law in a very specific and limited way”.

Jonathan Mitchell QC made the comments in reference to a speech in which Lord Keen of Elie QC talked about defending the rule of law.

In a speech to the Public Law Group on the rule of law and role of law officers, delivered in June 2018, Lord Keen said: “The duty of the Law Officers is to ensure that the government acts lawfully at all times – that is, that ministers act within the law, and civil servants stay within the law.”

He added: “If the rule of law is disrespected, and falls into disrepute, elected governments will not be able to govern effectively – any government is simply shooting itself in the foot if it undermines the rule of law.”

Mr Mitchell tweeted: “As he rightly says, the core duty of all the law officers of the Crown is to ‘ensure the government acts lawfully at all times’; not just when government feels like it.

“And, as he also rightly says, if this isn’t done – if government coolly announces as it did yesterday it’ll break its legal obligations when it feels like it – elected government cannot govern effectively; they destroy their future position.

“The rule of law underpins the entire economy; if you can’t ‘ask for a debt to be honoured’, why enter into any transaction that depends on any trust?”

Mr Mitchell said: “If he goes back on this in Parliament today, why would anyone ever trust his word again? And how could he either function as a law officer or return to practice at the bar, where your word is your stock-in-trade?”

Professor Adam Tomkins MSP said that it “should go without saying” that “agreements which the UK formally entered into a few months ago” should be honoured.

He added: “The Conservative Party is the party that used to take great pride in being the party of law and constitutional order.”

The Office of the Advocate General for Scotland has been contacted for comment.