Government agrees to publish FULL Brexit legal advice

Government agrees to publish FULL Brexit legal advice

December 4, 2018

Government agrees to publish FULL Brexit legal advice after it is dealt a humiliating defeat as MPs vote to hold ministers in contempt of Parliament for the first time in history

  • MPs hold ministers in contempt of Parliament for the first time ever today
  • Theresa May lost the vote by 311 to 293 in a humiliating defeat for Number 10 
  • Commons leader Andrea Leadsom said the full advice will be published now 
  • Caved amid fears minsters could be suspended just as crunch Brexit vote held
  • Labour, SNP, Tory rebels and DUP joined forces to inflict the historic defeat  
  • PM had told Cabinet ministers are defending an ‘important point of principle’ 
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The Government tonight caved to pressure to publish the full legal advice on the Brexit deal after suffering an historic and humiliating defeat.

The Commons voted by 311 to 293 to hold ministers in contempt of Parliament for the first time in history after they refused to publish the full advice. 

Labour joined with the DUP, SNP and Lib Dems to pass the motion in what Labour’s shadow Brexit secretary Sir Keir Starmer said was an ‘unprecedented’ act.

In a torrid night for Theresa May, she suffered another major defeat as MPs voted for an amendment which gives the Commons a greater say if the Brexit deal is defeated on December 11.

Number Ten ran the risk that ministers – including attorney General Geoffrey Cox – could be suspended from the Commons if they continued to refuse to publish the legal advice.

Seconds after the vote was announced in the packed Commons chamber, the Government said it will publish the full legal advice tomorrow. 

Commons Leader Andrea Leadsom told MPs: ‘We have tested the opinion of the House twice on this very serious subject…We will publish the final and full advice provided by the Attorney General to Cabinet.’

But she said she is so alarmed at the use of arcane parliamentary procedure to force ministers to publish secret information, she is asking a committee of MPs to investigate. 

The defeat comes exactly one week before Mrs May faces the biggest political test of her career when MPs will vote on her Brexit deal in the Commons.

Shadow Brexit secretary Sir Keir Starmer (pictured in the Commons today) said the Government had suffered an unprecedented defeat and demanded that the legal advice is published quickly

Attorney General Geoffrey Cox (pictured in the Commons today) had faced the prospect of being suspended from parliament after he refused to publish the legal advice 

Geoffrey Cox (pictured in the Commons today) had issued a robust defence of the Government’s refusal to publish the full advice at at the despatch box yesterday

Attorney General Geoffrey Cox (pictured in the Commons with Leader of the House Andrea Leadsom today) was facing the threat of suspension after refusing to disclose legal advice. he will escape punishment now as the Government has finally agreed to cave to the pressure and publish the full advice

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A slew of MPs had condemned ministers for refusing to release the full Brexit deal legal advice in a fiery Commons showdown today.

It had pitted Mrs May’s authority and support against the accumulated strength of her opposition – which spanned both Brexiteers and Remainers.

The dramatic row erupted after the Government refused to publish the full legal advice despite losing a vote in the Commons last month requiring them to.

How does the Commons contempt process work? 

The Speaker has allowed a contempt motion to go before the House after representations from Labour, Tory Brexiteers, the DUP, SNP and Lib Dems.

MPs will now vote on whether ministers are ‘in contempt’ and to demand ‘immediate publication’ of the full legal advice. 

If the vote is carried and the government still refuses to comply, MPs could table another motion to impose a punishment on an individual – most likely Geoffrey Cox – which would potentially be suspension from the House.

Ministers have tried to head off the crisis by tabling an amendment that would refer the matter to the Committee of Privileges for detailed consideration.

The committee would then recommend a suitable sanction for the Commons to sign off.

That is likely to take considerably longer than the week available before MPs vote on the PM’s Brexit deal. 

In theory, the most severe penalty is expulsion from the House, although the prospects of that happening would appear remote.

There were only three expulsions in the 20th Century, with the last one in 1954. Two of them involved serious criminal convictions, and the third was for lying to a committee and allegedly taking bribes.  

However any finding against the Government would be potentially highly damaging for Mrs May at a time when she is at her most vulnerable politically.  

Instead they said published a ‘full reasoned position’ laying out a summary of the legal advice.

But critics accused ministers of keeping secret the most explosive parts of Mr Cox’s advice. 

Sir Keir warned that ministers were committing contempt of Parliament and used the arcane parliamentary tactics to heap pressure on No10.

Ir Mrs May had still refused to publish the legal advice then MPs would have debated how to enforce their contempt motion in a debate tomorrow.

They could have voted to hold specific named minsters responsible and to mete out punishments to them – including suspending them from Parliament.   

Cabinet Minister Mrs Leadsom had fiercely defended the Government over the refusal to publish the legal advice.

She said the Government was defending an important principle that legal advice should stay confidential.

She also insisted MPs should not take it on themselves to rule on whether there had been a contempt – arguing that ministers should have ‘due process’ of an investigation by the Privileges Committee.

A government-backed amendment to kill off the attempt to hold Mr Cox in contempt by sending the matter to the Privileges Committee was defeated by 311 votes to 307. 

Kicking off the constitutional clash in the the chamber this afternoon, Sir Keir accused ministers of ignoring a ‘binding motion’ passed by the Commons. 

‘That is contempt,’ he said. 

The standoff between the House and the government is thought to be unprecedented in modern times. 

Ministers insist legal confidentiality is an important point of principle and revealing the material would hurt the national interest. Instead they published a 40-plus page assessment of the package thrashed out with Brussels. 

But if the motion is passed today, the pressure to issue the full advice could become unbearable.  

The PM’s spokesman said she told Cabinet ‘there is a long-standing convention that neither the fact nor the content of law officers’ advice is shared outside Government without their consent’. 

Mrs Leadsom has written to the Privileges Committee to ask them to investigate the use of arcane parliamentary procedures to force ministers to divulge secret information.

Mrs May said that was set out in both Parliament’s Erskine May rulebook and the Ministerial Code. 

She added ‘it is an essential part of the functioning of government that Cabinet ministers can have access to candid legal advice’ without the fear of it being published. 

The motion being moved by Labour today states: ‘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.’ 

What is in the summary of legal advice on the Brexit deal?

The Government has caved to demands to publish the full legal advice on the Brexit deal after losing an historic vote.

It means fresh details about the legal advice will be published. But this is what we know about the advice so far:   

  • The Northern Ireland backstop lasts indefinitely ‘unless and until it is superseded’ by ‘alternative arrangements’. 
  • Agreement on ‘alternative arrangements’ to avoid a hard border is only possible by joint UK-EU agreement. 
  • With no agreement, the UK must be able to show ‘clear evidence’ the EU is failing to negotiate in good faith to get a ruling in its favour. 
  • The UK cannot unilaterally terminate the divorce treaty. 
  • If transition is extended, the UK will have to pay an ‘appropriate’ amount more into the EU budget. This could run to billions. 
  • During the transition period, the EU can choose to exclude the UK from ‘security-related sensitive information’ .  
  •  During the transition period, the UK must accept all new EU laws with no say on writing them.

Mrs Leadsom, responding for the government, said Mr Cox had done nothing but treat the House with the ‘utmost respect’ and said he should be given the ‘due process’ of scrutiny by the Privileges Committee. 

‘I appeal to all those honourable members across the House that if they seek to pass this motion they should refer it to the committee,’ she said. 

Tory MP Simon Hoare accused critics of Mrs May’s deal of engaging in ‘parlour games’ rather than focusing on the Brext deal.

He said: ‘They clearly had no interest in what Geoffrey Cox had to say yesterday.’ 

Mr Rees-Mogg told the Commons he would support the Government, although he did not agree with the dismissal of ‘ancient procedures’ like the humble address being used to hold it to account.

He said: ‘I think it’s right that a committee looks at this issue in broad terms because it may be right that the House wishes to take a self-denying ordinance on the extent of humble addresses.

‘It may be right we would like to say specifically they would be deemed disorderly and therefore not brought forward if they related to matters concerning the security services.’

But fellow Tory Brexiteer Peter Bone suggested he would support the contempt motion as it would ensure the Government would come forward with a compromise.

He said: ‘Unless something very dramatically changes between now and the end of the debate – and I do have to leave the chamber as the Chief Whip would like to have a word with me – I do think that if the House votes for the contempt, a compromise will happen and we will get hopefully properly redacted information before we vote next Tuesday.’ 

In extraordinary scenes last night, Speaker John Bercow agreed there was an ‘arguable case that a contempt has been committed’ after Tory Eurosceptics, Labour, the DUP, the SNP and Lib Dems joined forces.

The MPs complained that the summary legal advice released by Mr Cox did not comply with a Commons resolution agreed last month.

Mr Cox, who is the Government’s chief legal adviser, had staunchly defended the decision to withhold the advice in a marathon appearance in the House – telling MPs ‘there is nothing to see here’.

He said that he ‘fully accepts’ MPs may impose a sanction against him or the Government for contempt of Parliament over Brexit legal advice.

Theresa May (pictured in Downing Street last night) has vowed to defend the ‘important principle’ that government legal advice is confidential

He said: ‘The House has at its disposal the means by which to enforce its will.

‘It can bring a motion of contempt and seek to have that motion passed and seek to impose through the committee, or whichever way it is appropriately done, to impose a sanction. I fully accept that.

‘I don’t set myself up contrary to the House, I simply say that I cannot compromise the public interest.’

Mr Cox had asked MPs to suppose the advice included details on relationships with foreign states and arguments that might be deployed in the future, noting: ‘Would it be right for the Attorney General, regardless of the harm to the public interest, to divulge his opinion.

‘I say it wouldn’t.’

Mark Carney admits his doomsday scenario for a no-deal Brexit meltdown is unlikely

Mark Carney today admitted his doomsday scenario for a no-deal Brexit meltdown would be unlikely to come to pass.

The Bank of England governor said the catastrophic consequences he laid out for a chaotic departure from the bloc – including a deep recession, plunging Pound and spiking unemployment – were a ‘tail risk’.

But he also doubled down on the warnings by saying prices of family shopping could rise by 10 per cent – and 6 per cent even if there is an orderly departure. 

And he delivered a withering verdict on the Norway-style option backed by some Remainers, saying it was ‘highly undesirable’ for the UK.

The comments came as Mr Carney gave evidence to MPs on the Treasury Committee.

Mr Carney refused to give percentage ‘confidence bands’ for the different scenarios the Bank set out in its dire warnings last week – saying that the committee was better placed to judge how Brexit would pan out.

Mr Cox said it would be difficult to ensure information would be redacted, adding: ‘I cannot take a step that I firmly and truly believe would be contrary to the public interest’.

He went on: ‘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.’

In his statement to MPs, Mr Cox insisted the backstop part of the divorce was ‘expressly agreed not to be intended to establish a permanent relationship but to be temporary’.

He said the Article 50 process did not provide a legal basis for a permanent arrangement.

But ‘if the protocol were to come into force, it would continue to apply in international law unless and until it was superseded by the intended subsequent agreement’ which met the goals of avoiding a hard border and protecting the Good Friday Agreement.

‘There is therefore no unilateral right for either party to terminate this arrangement. 

‘This means that if no superseding agreement can be reached within the implementation period, the protocol would be activated and in international law would subsist, even if negotiations had broken down.

‘How likely that is to happen is a political question, to which the answer will no doubt depend partly on the extent to which it is in either party’s interests to remain indefinitely within its arrangements.’ 

The legal paper gives a more detailed explanation of the ‘best endeavours’ provision in the Withdrawal Agreement. The deal sets out that if the backstop were to come into force, there will be a review process for the UK to break out.

The summary argues that the ‘obligation to negotiate in good faith with a view to concluding agreements is a well-recognised concept in international law’. 

‘Relevant precedents indicate that such obligations require the parties to conduct negotiations in a meaningful way, contemplate modifications to their respective positions and pay reasonable regard to each other’s interests,’ it says. 

But the document adds: ‘A tribunal would only find a breach of the duty of good faith if there was a clear basis for doing so.’ 

Earlier yesterday, Mrs May’s chief Brexit adviser told MPs that the Northern Ireland border backstop was a ‘slightly uncomfortable necessity’ for both the UK and the European Union. 

The UK faces making additional payments to Brussels if the Brexit implementation period is extended, the Government’s Brexit legal advice also said.

Under the terms of the Withdrawal Agreement, it is due to run until the end of December 2020 but can be extended by up to two years if both sides agree.

The advice says that discussions on any extension would involve ‘reaching further agreement on the UK’s financial contribution’. 

Ministers chose not to oppose the motion – tabled by Labour under an arcane procedure known as the humble address – as they feared a damaging Commons defeat.

Mr Cox is said to have warned the UK could be tied to the EU customs union ‘indefinitely’ through the Northern Ireland ‘backstop’.

The Sunday Times said in a letter sent last month to Cabinet ministers, he advised the only way out of the backstop – designed to prevent the return of a hard border with the Republic – once it was invoked was to sign a new trade deal, a process which could take years.

‘The protocol would endure indefinitely,’ he apparently wrote.

The letter was said to be so sensitive that ministers were given numbered copies to read which they were not allowed to take from the room afterwards. 

Former Brexit secretary Dominic Raab – who quit last month over the withdrawal agreement – said the legal position was clear.

‘The backstop will last indefinitely until it is superseded by the treaty setting out our future relationship, unless the EU allows us to exit,’ he told The Sunday Times.

‘The EU has a clear veto, even if the future negotiations stretch on for many years, or even if they break down and there is no realistic likelihood of us reaching agreement.

‘That’s my view as a former international lawyer, but it is consistent if not identical with all of the formal advice I received.’  

Commons legal assessment highlights doubt on ‘backstop’ 

House of Commons lawyers have raised fresh questions about the Irish border backstop in Theresa May’s Brexit deal.

An internal assessment by the House’s EU legislation team highlights that the customs arrangements would be a ‘practical barrier to the UK entering separate trade agreements on goods with third countries’. 

It also suggests the Joint Committee to arbitrate over the Withdrawal Agreement could put Britain at a ‘practical disadvantage’.

‘If the Joint Committee is unable to reach a decision, in some circumstances, that will block next steps,’ the note says.

‘The party that wants those next steps to occur, will then be at a practical disadvantage. 

‘By way of example, i) the Joint Committee sets the limits of state aid that can be authorised by the UK for agriculture. If limits are not agreed, state aid may not be authorised.’ 

Downing Street has acknowledged that the backstop would hamper trade deals on goods, but argues that the EU would also be unhappy to keep the arrangements indefinitely.

The PM’s aides insist the country would still be able to do deals on services.




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