Monday 3 December 2018

Attorney General ~ Legal position on the Brexit Withdrawal Agreement

Updated 5 December

The government has published a document setting out the Legal position on the Withdrawal Agreement - 52 pages pdf - and see Parliament Attorney-General Questioned on Withdrawal Agreement Legal Advice.

Hansard has also published the Attorney-General's statement to the House of Commons and the subsequent debate -  Hansard Monday 3 December 2018.  See also Parliament TV - here.

Several MPs expressed
a view that the material published by the Attorney-General is not the full and complete legal advice given to the government and therefore does not comply with the Humble Address of 13 November - previous post.

In his statement, the Attorney-General said:  "It is important to understand how the Law Officers habitually give their advice, which may be a mixture of oral and written communications given at different times during fast-developing events. Ministers are advised by their own departmental lawyers, and the points that arise for consideration of the Law Officers are invariably limited to the relatively few of particular importance to the policy decision of the Government. Therefore, my statement today is complemented by a detailed legal commentary, provided for the purpose of the debate and published this morning, that analyses the effect of the agreement as a whole. That legal commentary has been produced with my oversight and approval, and I commend it to the House as both an accurate examination of the provisions of the agreement and a helpful exposition of some of the salient issues that arise from them."

By convention, legal advice given by the Law Officers to government is not (normally) disclosed.  The Attorney defended this position several times.  For example, in answer to a question from Harriet Harman MP he said:  "The truth is that I am caught in an acute clash of constitutional principle. A Minister is obliged to have regard to the public interest and the national interest. Let us suppose I had given any such advice that has been requested by the right hon. and learned Member for Holborn and St Pancras (Keir Starmer), and let us suppose that that advice had covered all sorts of matters, including our relationships with foreign states and including arguments that might be deployed in the future - and their strengths and weaknesses - and including matters of acute importance to this country; would it be right for the Attorney General, regardless of the harm to the public interest, to divulge his opinion?    I say to the right hon. and learned Lady that it would not. There is no procedure by which this House can have redactions or entertain circumstances in which it could weigh the competing public interest against the interest in disclosure, as a judge would do. She knows what I mean. Therefore, I cannot take a step that I firmly and truly believe would be contrary to the public interest. I ask the House to understand that it is only that consideration that is motivating me and this Government in declining at this stage to break the convention that applies to both sides of the House when they are in government. There is nothing to see here."

The Humble Address:

Following the debate on the Legal Position Statement, the possibility of breach of the Humble Address was raised with the Speaker - see the question from Mr Nick Thomas-Symonds MP and the reply.

It cannot be seriously doubted that the 52 page Legal Position Statement together with the debate on 3 December provides MPs with sufficient material for them to make an informed voting decision on the Withdrawal Agreement / Political Declaration.  As the Attorney-General accurately said - "It is important to recall that the matters of law affecting the withdrawal can only inform what is essentially a political decision that each of us must make. This is a question not of the lawfulness of the Government’s action but of the prudence, as a matter of policy and political judgment, of entering into an international agreement on the terms proposed."

Nevertheless, the Humble Address stated -

"That an humble Address be presented to Her Majesty, that she will be graciously pleased to give directions that the following papers be laid before Parliament: any legal advice in full, including that provided by the Attorney General, on the proposed withdrawal agreement on the terms of the UK’s departure from the European Union including the Northern Ireland backstop and framework for a future relationship between the UK and the European Union."

On Tuesday 4 December, the government was held to be in contempt of the House of Commons by a vote of 311 to 293.  The debate and vote are at Hansard Online.   The House resolved -

"That this House finds Ministers in contempt for their failure to comply with the requirements of the motion for return passed on 13 November 2018, to publish the final and full legal advice provided by the Attorney General to the Cabinet concerning the EU Withdrawal Agreement and the framework for the future relationship, and orders its immediate publication."

The Leader of the House (Andrea Leadsom MP) said - "we will publish the final and full advice provided by the Attorney General to the Cabinet; but, recognising the serious constitutional issues that this raises, I have referred the matter to the Committee of Privileges so that it can consider the implications of the Humble Address."

See BBC News 4 December.

*** The Advice ***

The government has published the Attorney-General's Legal Advice - see HERE

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