The Legal Officer of the United Kingdom Government for Scotland, Lord Kane, has submitted his resignation to the Prime Minister.
BBC Scotland understands that the Attorney General has had difficulty reconciling plans to cancel the Brexit agreement with the law.
Lord Kane’s resignation was not accepted by Downing Street.
Glenn Campbell, BBC Scotland’s chief political correspondent, said there appeared to be an attempt to persuade the legal officer to remain in the position.
The government’s top attorney – Sir Jonathan Jones, permanent secretary of the Government’s Legal Service – had already resigned over the legislation, which passed its first parliamentary exam on Monday.
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The dispute centers on the UK government’s internal markets bill, which Northern Ireland’s Minister Brandon Lewis told MPs they could “violate international law” by bypassing the withdrawal agreement signed with the European Union.
Lord Kane later argued in the House of Lords that his view was that “the bill does not in itself constitute a violation of international law or the rule of law.”
He said Mr. Lewis had “basically answered the wrong question.”
But the Northern Ireland minister has since stepped up his stance, saying that his statement was a “very direct answer” which “is completely in line” with legal advice.
The BBC’s political editor, Laura Koensberg, said Lord Kane’s resignation had been repeated days ago, and that it eventually happened “after Brandon Lewis contradicted him this morning.”
Richard Kane was chairman of the Scottish Conservative Party until he was appointed Attorney General in 2015 – when he also became a peer in life as Baron Kane of Ellie.
The Quality Court represented the UK government in court in a number of high-profile cases, including the Parliament Powers case in 2019 and the Brexit “Article 50” case in 2016-2017.
As a UK government legal officer, Lord Kane has been advocating plans to give ministers powers to change the EU Withdrawal Agreement in the event that the two sides are unable to agree on a trade deal.
He has argued that while this part of the UK’s Internal Market Bill creates tension with the UK’s international obligations, this is not unprecedented and domestic law should prevail.
The problem is that Northern Ireland Minister Brandon Lewis has already said that bypassing the Brexit divorce deal would break international law in a “very specific and limited way” and he rejected Lord Kane’s suggestion that he answered incorrectly.
This made it difficult for Lord Kane to reconcile the government’s plans with the law and wrote to the Prime Minister on Wednesday morning offering to resign.
This was not immediately accepted and it appears the government is making efforts to persuade him to stay.
Lord Kane will be the first cabinet member to resign due to its approach to the issue, which has drawn criticism from former prosecutors and all five former prime ministers.
What is the internal markets bill?
The bill sets out the rules for operating the UK’s internal market – trade between England and Scotland, Wales and Northern Ireland – after the Brexit transition period ends in January.
- There are no new checks on goods transported from Northern Ireland to the rest of Great Britain
- Giving UK ministers the powers to amend or ‘reject’ rules regarding the movement of goods that will come into effect from 1 January if the UK and the EU cannot reach an alternative agreement through a trade deal
- Powers to exceed previously agreed obligations on state aid – government subsidies for companies
The bill explicitly states that these powers must be applied even if they conflict with international law.
Ministers say the legislation is necessary to prevent “harmful” tariffs on goods traveling from the rest of the UK to Northern Ireland if negotiations with the European Union on a free trade agreement fail.
But some senior conservatives – including former Prime Minister John Major – have warned that it could undermine the UK’s reputation as a supporter of international law.
The legislation has also proven controversial with mandating departments, who are concerned about how the UK’s “home market” will function after Brexit and who will set regulations and standards.
In the meantime, European Commission President Ursula van der Leyen has warned that the United Kingdom cannot abandon the withdrawal agreement unilaterally.
On Wednesday, she said the agreement was the only way to secure the peace process in Northern Ireland, and warned that replacing it would undermine confidence in the UK.
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Last week saw the start of the eighth round of post-Brexit trade agreement talks between the United Kingdom and the European Union.
The two sides are trying to secure a deal before the end of the transition period on Dec.31, which will see the UK enter the general rules of the World Trade Organization if no deal is reached.
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