Mixed Millers from the attorney general

Moral: know your cases before taking on another QC

The loss of top-level legal advisers is leaving the attorney general, Suella Braverman QC MP (left), looking rather exposed in the House of Commons.

In response to questions about the United Kingdom Internal Market Bill, Braverman told MPs yesterday that, as a matter of domestic law, it was proper for parliament to pass legislation that might breach international law or treaty obligations. Her quotes and my analysis of that proposition can be found here.

That provoked a question from Joanna Cherry QC MP (right), who speaks on home and legal affairs for the Scottish National Party:

The Attorney General has justified her support for the Bill by reference to the domestic legal principle of parliamentary supremacy and the judgment of the UK Supreme Court in Miller. But in that case, the UK Supreme Court also said, at paragraph 55, that “treaties between sovereign states”, such as the withdrawal agreement,

have effect in international law and are not governed by the domestic law of any state.

The Supreme Court was quite clear that such treaties

are binding on the United Kingdom in international law.

Why did the Attorney General omit reference to that part of the Supreme Court’s judgment? Did she not learn the rule against selective citation when she was at law school?

Cherry was clearly quoting from Miller 1, the case about triggering article 50 that was decided in 2017. But Braverman seemed to think Cherry was referring to Miller 2, the prorogation case decided in 2019.

So Braverman told Cherry:

I am grateful to the hon. and learned Lady for several reasons. The first is for intervening in the Miller litigation. Her intervention allowed the Supreme Court to find unanimously, and hold on this point, for the sovereignty of Parliament when it comes to international law…

But that allowed Cherry to come back with this stinging point of order:

In her response to me a few moments ago, the Attorney General said that I intervened in the case of Miller v. Secretary of State for Exiting the European Union. I did not intervene in that case, and perhaps if the Attorney General had read the case more closely, particularly paragraph 55, which I referred her to, she would know that I was not a party or an intervener in that case. I think she is getting it mixed up with the case of Cherry v. Advocate General for Scotland, in which, a year ago today, the United Kingdom Supreme Court ruled that her Government’s action in proroguing Parliament was unlawful. I was not an intervener in that case; I was the lead litigant, and it is great to get an opportunity to mention it on the Floor of the House today and to celebrate that great victory for the rule of law, made in Scotland.

There was no response from the attorney general.

This blog is free for all to read. From the middle of next week, though, some pieces will be reserved for subscribers. Thank you to those who have subscribed already.