The Attorney General’s secrets. Where is the legal advice?

Despite being found in contempt of Parliament, the government has – incredibly – managed to worm its way out of publishing the Attorney General’s full legal advice on Theresa May’s deal. The UK’s history of joining the European project has taught us just how much Parliament and the public are deceived when government legal advice is kept secret. Yet Parliament and the media now seem happy for us to be deceived once again, write political scientist Dr Anna Bailey and CIB Chairman Edward Spalton.

In December 1960 the then Lord Chancellor, Lord Kilmuir, wrote to the then Lord Privy Seal, Edward Heath, to draw his attention to the surrender of parliamentary sovereignty which membership of the then EEC would incur. Here are just a few excerpts:

“…the Council of Ministers could… make regulations which would be binding on us even against our will…”

“…we could comply with our obligations under the treaty if Parliament abandoned its right of passing independent judgement on the legislative proposals… Parliament here has in substance if not in form abdicated its sovereign position… For Parliament to do this would go far beyond the most extensive delegation of powers even in war time that we have experienced… I do not think there is any likelihood of this being acceptable to the House of Commons…” [emphasis ours]

“We must act on the assumption that entry into the Community would be irrevocable… Parliament must surrender this function and either resign itself to being a rubber stamp or give the Community in effect the power to amend our domestic law…”

Kilmuir’s advice on the loss of parliamentary sovereignty that EEC membership would involve could not have been clearer. And yet Heath was able to lie to us and MPs in the 1971 White Paper (sent to every home in the UK) that “there is no question of Britain losing essential sovereignty”.

Parliament and the public were deceived. Shockingly, MPs did not get to read the treaty of accession to the EEC before they voted on it. Heath could lie with confidence because Lord Kilmuir’s advice was kept as an official secret for thirty years.

On 3 December 2018, Parliament debated whether the Attorney General’s advice to the government on the legal effects of Mrs May’s Brexit deal should be published. Without a dissenting vote, Parliament passed a resolution requiring that a copy of the advice should be made available for MPs to consider.

Very politely Geoffrey Cox QC, the Attorney General, refused. He answered all sorts of questions with apparent frankness, but would not agree to surrender the actual document. It was confidential advice from him to his client (the government), and it was “not in the public interest” that it should be disclosed.

But there was a contradiction at the heart of his argument. He would answer any questions MPs asked him but, of the document itself, he said there was “nothing to see”. Then he said it was not the sort of thing to be made public during negotiations and therefore “not in the public interest” for it to be disclosed. If there was indeed “nothing to see”, why the secrecy? Where was the threat to the public interest?

Parliament decided not to stand for this. The next day, on 4 December, the Commons passed a motion finding the government in contempt of Parliament for refusing to publish the Attorney General’s legal advice as requested. The motion condemned the decision not to release the “full and final” legal advice and ordered “its immediate publication”.

A victory for Parliament and transparency, then? Not so fast. The government responded to being found in contempt of Parliament by publishing some of the Attorney General’s legal advice, but not all: only the legal advice relating to the backstop. It has not released the “full and final” legal advice as demanded by Parliament. In other words, the government acted like a defiant schoolboy, giving a half-hearted pretence of obeying the headmaster while sticking two fingers up at him behind his back.

What is most incredible of all is that Parliament has let the government get away with defying it. Sir Bill Cash MP alone has pursued the matter, but May has simply swatted aside his repeated enquiries about the rest of the legal advice that must surely exist. Nor has there been the slightest hint of media outrage that the government remains in contempt of Parliament. So much for the press being the watchdog of democracy.

The legal advice relating to the backstop was damning enough. It confirmed what was already widely feared: that the backstop could potentially continue indefinitely; it would not be possible for the UK to escape from it without EU approval. Who knows what other legal nasties are lurking in May’s deal? Independent lawyers and researchers have warned of plenty, but any legal advice the government has received on them looks set to be kept under wraps for another thirty years.

By allowing the government to fob it off with incomplete legal advice – even when it has passed a motion of contempt demanding the full advice – Parliament has shown that it is happy to continue as the passive EU rubber stamp that Lord Kilmuir warned of. Indeed, MPs’ antics last week suggested that many of them are more concerned with trying to stop Brexit than ensuring the public and Parliament are fully informed on the legal consequences of the deal – one that will be enshrined in international law and from which there is therefore no escape.

It seems that the Attorney General will get to keep most of his secrets. If this enables the public to be deceived once again, it is not only the government that will be culpable – Parliament and the media will have been fully complicit.

Looking forward to a free and sovereign 2019

We would like to wish all of our members, supporters and readers a very Merry Christmas, and a free and sovereign 2019.

Of course, we know that the latter is far from guaranteed. All we want for Christmas is for the referendum result – and hence our democracy – to be respected. That shouldn’t be too much to ask. Indeed, we shouldn’t have to ask for it at all – it should be a given. But clearly more than four decades of the EU steadily eroding our sovereignty have taken their toll on our democratic values.

CIB has been fighting to extract the UK from the European project since 1969. And we know that, even assuming a satisfactory Brexit in March 2019, the threat the EU poses to our sovereignty will remain. Well-funded Remoaner elites will try to drag us back into the EU for years to come. Our Europhile establishment will attempt to sign us up piecemeal to so-called ‘co-operation’ and ‘partnerships’, such as in defence or law and order. And CIB will continue to fight for UK independence as we enter our fiftieth year.

The CIB website will now take a festive break until 7 January 2019. Look out for some exciting developments in the new year, including a brand new website with a fresh, modern look, which we hope will help our message reach a new generation of proud defenders of national sovereignty.

Is May for turning on Chequers? Conservative Party Conference report

CIB committee member, political scientist Dr Anna Bailey, reports on the Conservative Party Conference. Was there any sign that Chequers could be chucked?

The fringe was king at this year’s Conservative Party Conference. While the regular ministerial speeches in the main hall were poorly attended, Brexit-related fringe events were packed to the rafters.

Even queuing an hour or more in advance did not guarantee entry. Sunday’s Brexit Central rally saw delegates queuing out of the building for a chance to hear Jacob Rees-Mogg and other Brexiteers. A lucky 300 made it inside, while a similar number were turned away.

In many ways, this was a pleasing development. The active fringe showcased the lively intellectual movement that Brexit now enjoys, with think tanks, backbench MPs – and yes, even some ministers – brimming with ideas on how the UK can utilise the opportunities offered by its post-Brexit sovereignty.

Just as importantly, delivering a meaningful Brexit was clearly top of the agenda for regular party members. There can be no doubt that the overwhelming majority of Conservative grassroots delegates were not only firmly committed to Brexit, but also decisively opposed to Chequers.

There was a widespread awareness among grassroots members that the so-called ‘common rulebook’ would prevent the UK regaining sovereignty in any meaningful sense. ‘Chuck Chequers’ badges and stickers were widely worn. Once you were wearing one, other delegates would approach you enthusiastically and ask where they could get their own.

The problem, of course, is that today’s Conservative Party is the least internally democratic of any UK political party, a point devastatingly made by the Campaign for Conservative Democracy at the Brexit Advance Coalition’s Alternative Conference event.

Even the near-universal support of party members for a Brexit that restores full UK sovereignty does not count for much in terms of realpolitik. The membership has little to no influence over the party leadership or MPs. No wonder the Conservative Party now has fewer members than the SNP.

Listening to Brexit Secretary Dominic Raab on the fringe was revealing, if rather painful. Despite his valiant efforts to remain relaxed and upbeat, Raab was clearly struggling to find a way of tiptoeing through the minefield of not criticising May or Chequers, while also avoiding contradicting his own true Brexiteer preferences (which, I strongly suspect, are to abandon Chequers and pursue a free trade deal). As a consequence, he was able to say very little of substance.

Raab has faced a lot of criticism from Brexiteers who feel he has sold out his principles by backing Chequers to further his career. Personally, I take a more charitable view. It is vital that we have a Brexiteer in the post of Brexit Secretary as a bulwark against Brexit being diluted still further. I hope and believe that Raab is not a sell-out, but is gallantly sacrificing his reputation and principles to the cause.

So what will happen now? Has anything changed as a result of the conference?

We certainly didn’t see the fireworks or a large-scale challenge to Mrs May that some predicted. The European Research Group (ERG), which is estimated to enjoy the support of around 70 Conservative MPs, had a clear tactic. Convince Theresa May to abandon Chequers in favour of seeking a ‘Canada+++’ free trade deal, rather than seek to overthrow May herself.

At fringe event after fringe event, ERG MPs bent over backwards to avoid criticising May personally. They were scrupulous in only playing the ball (Chequers), not the player (May). If she wanted an opportunity to move away from Chequers while not losing any authority as leader, it was there for the taking.

It was noticeable that May carefully avoided using the word ‘Chequers’ in her conference speech. However, there is nothing to suggest that this was anything other than her abandoning a toxic brand, rather than a signal of policy change.

We know from Tim Shipman’s excellent book Fall Out that May’s modus operandi is to isolate herself from her ministers and the parliamentary party as a whole, and plough stubbornly on in ‘splendid isolation’.

Reports today suggest that government whips are lining up Labour MPs to cancel out ERG opposition to Chequers and push it through parliament. It would appear that, rather than using conference as an opportunity to listen and change course, May has just treated it as a hurdle to be overcome.

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For anyone who would like to catch up on the best of the fringe events at Conservative Party Conference, head over to our Facebook page. We have posted numerous livestreams of Brexit-related fringe events, courtesy of CIB affiliate member The Bruges Group.

Catch up with us at the Conservative Party Conference

CIB committee member, political scientist Dr Anna Bailey, will be at the Conservative Party Conference this week keeping a keen eye on all things Brexit. Dr Bailey has recently taken on responsibility for running the CIB website and Facebook page, and over the coming months will be implementing a strategy to expand our reach and influence. If you spot her at either the official conference, or the Brexit Advance Alternative Conference, please do pop over and say hello. We’re always keen to catch up with our members – and of course to encourage new members to join!

Dr Bailey will be at the following events:

…plus a variety of other Brexit-related fringe events.