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.

We urge all MPs to vote against May’s deal tonight

The Prime Minister claimed on 10 December 2018 that she had decided to postpone the Commons vote on her deal because “on the issue of the Northern Ireland backstop, there remains widespread and deep concern”.

But it is important to be clear that the “widespread and deep concern” goes well beyond the issue of Northern Ireland. It includes the terms of the transition period; the still uncertain financial arrangements; continuing jurisdiction by the ECJ; no guarantee of a trade agreement; and many other matters, such as fishing rights, Gibraltar and so on.

Perhaps the best summary of the madness of May’s deal has been given by Mervyn King, an economics professor who served as Governor of the Bank of England for a decade:

“There are arguments for remaining in the EU and arguments for leaving. But there is no case whatever for giving up the benefits of remaining without obtaining the benefits of leaving. Yet that is exactly now what the government is proposing. It simply beggars belief that a government could be hell-bent on a deal that hands over £39 billion (although it may be much more), while giving the EU both the right to impose laws on the UK indefinitely and a veto on ending this state of fiefdom.”

The UK will be out of the EU but still ruled by the EU. It is the very opposite of “taking back control”. This will be the case whether under a transition period, backstop, or bespoke relationship based on the Political Declaration. The only remaining question is just how deep the EU’s control over the UK will be.

Worst of all, May’s deal would lock the UK into an international treaty from which there is no unilateral right of departure. It would bind future parliaments and future electorates for generations to come. In this sense it is worse than EFTA, the EEA and even the EU itself – all of which a member country has the right to leave. Mervyn King is right to conclude that, “If the deal is not abandoned, I believe that the UK will end up abrogating it unilaterally – regardless of the grave damage that would do to Britain’s reputation and standing.”

Like Mervyn King, we believe that the withdrawal agreement “beggars belief”. We therefore urge MPs of all parties to vote against it tonight. It is an agreement totally unworthy of the Parliament of a free people.

Why Parliament must reject May’s dodgy deal

The government has been ploughing taxpayers’ money into propaganda ads on social media and in newspapers pushing the Withdrawal Agreement. But unsurprisingly, they withhold essential information. In this article, Brian Mooney, Editor of the Resistance newsletter, summarises the main reasons why Parliament must reject May’s dodgy deal. Although most media attention has focused on the Northern Ireland backstop, that is only one ‘nasty’ amongst many…

In November, UK and EU negotiating teams produced a Withdrawal Agreement (WA). This defines how the UK will leave the EU and the short-term relationship to 2020 (the “transition”). But the WA has been received so badly that before Christmas the PM pulled a Commons vote that she was certain to lose heavily. The vote is now due to take place on Tuesday 15 January, although don’t rule out a further postponement if a heavy defeat still looks likely in the days before the vote.

Just how bad is the WA? Most media attention has focused on the Northern Ireland backstop, but that is far from the only ‘nasty’ lurking in the WA. There are some good explainers from Dr Lee Rotherham, UKIP, and the European Research Group, with my pick being from Briefings for Brexit (in-depth and on farming). Below I summarise the main horrors concealed in the WA that the government would rather you didn’t know about.

♦ No independent escape. Franklin Dehousse, a former EU judge, revealed that the EU had smuggled permanent measures into what was supposed to be a temporary agreement. The UK will have no independent escape from the ‘choice’ of extended transition or the hyped ‘backstop’ (covering customs and Northern Ireland issues). Both impose EU control.

It is an act of faith that the EU, which has acted in such a heavy-handed way, will somehow just let the UK walk away without a further price to pay. Why would it? The PM is scurrying to find assurances to convince sceptical MPs while the EU refuses to change the substance of the WA. Commission Secretary-General Martin Selmayr has been reported as bragging that “losing Northern Ireland” would be the “price” the UK has to pay for Brexit.

♦ A border in the Irish Sea. The backstop contradicts the PM’s assertion that there will be “no border in the Irish Sea”. It creates a tax border between Northern Ireland and the rest of the UK. A “UK Movement Certificate” for goods exported from mainland GB will be required.

♦ Contravenes the Good Friday Agreement. In several areas, the UK or bodies established by it, such as the Northern Ireland Assembly, are to be banned from law-making. So much for respecting the Belfast (Good Friday) Agreement! Perversely, no UK body will be allowed to carry out any checks on farming in Northern Ireland, including those needed to stop the spread of diseases.

♦ Still tied to the CAP. Far from removing the UK from the shadow of the failed Common Agricultural Policy, the UK will be barred from deciding the level of support for farmers in any extended transition. Instead, the EU will actively require them to be disadvantaged. Under the backstop, agriculture would remain an exclusive EU competence UK-wide after Brexit.

♦ Still under EU regulatory control. The EU will be able to impose harmful new laws during transition e.g. an EU Financial Transactions Tax. The UK must transpose certain EU directives on taxation and follow EU rules on business taxes.

♦ EU controls our trade policy. The EU can effectively decide our trade policy with the UK having no right to be consulted or to vote on any trade remedies (sanctions). It may enter into agreements with third countries which give access to our markets, without the UK having reciprocal rights.

 Still under EU rulebook. The EU will be able to force “non-regression clauses” to deny UK businesses a chance to remove burdensome regulations and thus gain competitive advantage. The EU will also rule over competition issues. This is about as far from a level playing field for business as you can get: the EU will be providing the pitch, the rule book and the referee!

♦ Still under ECJ control. The European Court of Justice (ECJ) is to make binding judgments on whether the UK has complied with its WA obligations. This would seem to trump any rights the UK would have in global bodies such as the WTO or ICAO that have previously overruled the EU.

♦ No independence until 2029? The European Commission can bring any action against the UK to the ECJ under this wide-ranging agreement for up to 4 years after transition. It is expected that transition would extend past 2020, either because of the time taken to conclude a free trade agreement, or because it will suit the EU to drag its feet in the interest of continuing control. A 2022 completion date could leave the UK exposed until at least 2026, with the threat of arbitrary and even unlimited penalties hanging over our heads for however long it took a case to conclude. A further 2-3 years is possible – leading us up to 2029, around ten years after ‘Independence Day’.

♦ Pay with no say. During transition, the UK would have to pay, with no say, towards EU defence initiatives, and towards the Galileo/space programme – but with our suppliers restricted from bidding from contracts. The UK will also be liable for EU spending commitments made in 2021, after the advertised target date for completing transition! Should transition extend, the UK’s contribution and ongoing liabilities will be decided by EU bodies. This hardly lives up to the PM’s hyped ‘vision’ of taking back control of our laws and our money. Economics Professor David Blake has asked, “Was the Withdrawal Agreement drafted by civil servants seeking to make remaining in the EU look attractive?”

♦ Dubious legality. The WA is of dubious legality. The EU has hardly negotiated in good faith as required by the UN Charter. The WA fails to respect the Barcelona Declaration upholding sovereignty and territoriality, or an agreement on human rights. Dehousse also warns that under international law, the EU cannot impose conditions that will make Brexit impossible or extremely difficult. The Attorney-General expressed doubts on whether the WA complied with EU law. Despite a ‘contempt of Parliament’ motion, he has only released legal advice on the backstop and not on the wider WA – what has the government got to hide?

May’s deal: “Out of Europe but still run by Europe.”

Former CIB President George West gives his personal reaction to the prime minister’s deal and the political fallout, and concludes that the battle to leave the EU has only just begun.

Theresa May says that if Parliament does not accept her Brexit deal we will be back to square one. If only that were possible – but starting with a Leave-voting prime minister.

To get her way May resorts to bullying tactics and deceit, just as Edward Heath did in 1972. Con O’Neill, the civil servant who led the UK’s negotiating team for Heath, summed up Britain’s negotiating position as “swallow the lot, and swallow it now.” May is now expecting parliament to do the same.

She tells us the deal is the best she can get. That alone should put a stop to her political career and further damage to the UK.

Dominic Rabb boldly told us that the Withdrawal Agreement is worse than staying in the EU. That should enhance his future political career.

Lucy Harris, founder of Leavers for Britain, appeared on the BBC’s Politics Live programme on Friday. When asked to choose between the draft Withdrawal Agreement and staying in, she wisely chose not to be drawn in to such a false choice.

If only Nigel Farage and UKIP leader Gerard Batten had kept silent, rather than trading blows on internal UKIP business in public.

What are loyal UKIP supporters to think now of Farage, who opened his mouth at this critical stage and attracted more post-Henry Bolton bad publicity? And what are UKIP supporters to think of Batten’s ill-advised choice of Tommy Robinson as a special advisor and speaker for his Brexit rally, in a bid to attract Tommy’s followers?

The campaign to actually leave the EU is nowhere near an end. It is a very long time until 20XX – the year that the transition period can potentially be extended to. It is even longer until ‘never’.

Where is the new effective leader of the Brexit movement to extricate us from this mess? Quite possibly Lucy Harris, who is of an age to appeal and talk sense to the younger people who have grown up exposed to propaganda myths such as that the EU has “kept the peace in Europe”.

Mrs May seems to be intent on earning her place in history alongside those other notorious Conservative Europhile traitors, Edward Heath and ‘green peas’ John Major.

For years we have been fed dishonest political slogans to trick us into accepting the forward march of EU integration. We were told we must not “miss the train”, and that we could be “in Europe but not run by Europe.” A more honest slogan for Mrs May’s deal would be, “Out of Europe but still run by Europe.”

After 46 years of campaigning to leave the EU it seems to me that the battle has only just begun.

Worst horrors of the draft Withdrawal Agreement

CIB committee member and director of the think tank The Red Cell Dr Lee Rotherham explores some of the worst horrors of the draft Withdrawal Agreement. This is an abridged version of an in-depth analysis that was originally published by the Telegraph on 17 November 2018.

The single greatest problem with May’s transition treaty is that it doesn’t guarantee the transit. It leaves us with the prospect of greater limbo than ever.

NO EXIT

The risk of us remaining in transition purgatory forever is because, ironically, the draft settlement does not contain a neat equivalent to Article 50, the EU’s escape clause. When Article 50 was being drafted, Eurosceptics challenged whether two years was too long and risked seeing a country’s decision to leave overturned by a determined Establishment rear guard. That was prophetic then, and prescient now.

Instead of a secure time lock, this transition deal has Article 132 – a name that will forever live in treaty infamy. On the assumption that getting an end deal will be a tad difficult, perhaps because at least one of the two parties involved doesn’t really want it, it allows for a mutually-agreed one-off extension of the transition period. This, critically, will extend arrangements until the specified date of “31 December 20XX”.

The negotiators might at least have deployed a little unbridled optimism and suggested that the UK’s regulatory servitude and imprisonment in a second-rate customs union might end sometime before 2099. They could at least have assured us that we’d be out within a decade and written 202X.

In other words, Article 132’s key significance lies in making a temporary deal potentially a permanent one.

There are, unfortunately, a lot of problem areas in the text and any audit can only trowel the surface. So let’s briefly focus on some of the ones that haven’t hit the headlines.

NO SAY

Article 128 covers the rights of the UK Parliament during transition, or more properly describes what will be stripped away. Currently, Westminster’s part in the EU system is not much more than being on the Christmas card list. Now, MPs even get removed from the consultation process, and are left with marginal engagement at the bottom of the food chain as legislative plankton.

The Remain campaign complained that the ‘Norway option’ was a sort of Fax Democracy, notwithstanding the limited safeguards contained in it. This new settlement now generates its Platonic ideal form.

NO CONTROL

EU paramountcy is extended to the court system. Under Article 162 the Commission has the right to proactively intervene and send legal opinions to UK judges to better guide them, and indeed the option of turning up in person. Article 168 keeps any disputes between the UK and EU executives in-house and inside the EU systems, while Article 174 makes arbitration by the EU judges binding.

Then there is the Common Fisheries Policy. It’s a bad enough pointer than the skeletal draft objective treaty state involves undefined “future shared stocks” and the prospect of joint management and shared stocks within UK waters. Meanwhile during transition, the CFP continues. Worst, it seems quota will be set by the EU27 without the UK in the room. DEFRA can supply comments: the most that can be said is that the deal does not rule out expletives.

Then there are the ranging environmental protection clauses. Here, EU negotiators have packed a policy suitcase to its seams. It packs in potentially burdensome legislation across everything from emissions to public participation via global warming. The Commission might at least have had the decency to admit that its motivation was to make sure the UK doesn’t become more competitive.

Given the track record of the Home Office (and indeed of a past Home Secretary now in higher office), it should come as no real surprise that the UK will also remain locked into a range of texts agreed by that department, including the European Arrest Warrant, that have vexed Conservative backbenchers over many a year.

DEFENCE INTEGRATION

Considerable uncertainty litters the deal with respect to Defence. The EU has now picked up the pace in the race for a Common European Defence, in which it sees the US as an emerging competitor. This policy is being pursued in several parallel strands. The UK has partially ducked out of some of them, but this draft leaves the UK at considerable risk to others, especially over some of the institutional arrangements that have yet to be finalised as one of the end ‘pillars’. An immediate risk is the push to integrate and slash national defence industries, since these would still come under the trade aspects of this deal. Moreover, policy here is centred on the work of the European Defence Agency that the UK will stay closely engaged with. More MPs need to read the papers from campaign group Veterans for Britain disentangling this complex spaghetti.

THE MONEY

Then there’s the money aspects of the deal. For such a weighty issue, the £39 billion – or as we should now style it, the “single financial settlement” – is rather mute. Given the vast scale of EU waste and overspending, that nevertheless continues to get paid year after year, perhaps it is too much the negotiators’ guilty secret. But someone might at least have thought about asking for a tenth of the assets, rather than just signing up to a share of the liabilities.

These liabilities obviously include the wildly generous pensions destined for Lord Mandelson and his fellow peers. Pensions has long been a thorny issue. EU auditor Marta Andreasen discovered epic levels of unfunded off-the-books liabilities, while MEPs had to be shamed into freezing admissions to their half-funded voluntary second pensions scheme. The UK should pay up for its staffers; however, there are half as many of them employed as there should be by share of EU population, and the figure on some key departments like fisheries has been under two percent. So in effect, the UK taxpayer under these terms looks lumbered with pensions for staffers from EU27 countries too.

Taken as a whole, it’s a dismal deal. The irony of it all is that the EU itself has passed consumer laws, precisely to prevent dreadful time share schemes like this one.

 

Dr Lee Rotherham is Director of think tank The Red Cell. He was Director of Special Projects at Vote Leave.

THE WITHDRAWAL AGREEMENT: WHAT WILL HAPPEN NEXT?

The author is a researcher on UK-EU integration issues, who wishes to remain anonymous for professional reasons

The draft withdrawal agreement is out, to much controversy. What are the possibilities for what will happen next?

The draft has gaps, so cannot be regarded as the final version. The version drawn up by negotiators is being reviewed in EU capitals. There could yet be changes if EU27 countries push for them.

Although Angela Merkel feels there is little scope for changes, the May government will be under severe domestic pressure to secure some changes so it can crow a victory of sorts. Even if the result is constructive ambiguity. Negotiators often build in some room for manoeuvre in allowing concessions.

Housing Secretary James Brokenshire has warned against unpicking in case the outcome is a worse offer. But as timescales are tight, I would only put the probability of a better deal for the UK at 5%, and a worse deal slightly less, say 3%.

How the Westminster Parliament will respond is difficult to predict, but the BBC only sees May getting around 264 votes of the 320 needed to pass the withdrawal agreement. The former DExEU Secretary David Davis foresaw an initial rejection.

Lord Mandelson predicts a hard Brexit, implying no-deal. The EU27 are desperate to avoid this, but their likely approach might be to hold firm and play chicken in the hope that the UK blinks first.

Although there is a suspicion that they would prefer the UK to remain in the EU, it might be more advantageous for them long-term to see a chaotic Brexit. Their dream might see the UK begging to return without its budget rebate and opt-outs, such as on the Euro.

The Court of Justice is due to rule on whether the Article 50 notification of withdrawal can be revoked, but as there is nothing in the treaties to suggest this, I see the probability as 1%.

The Westminster Parliament could vote to extend negotiations as a covert means of stalling Brexit. This would mean unwelcome extra work for Commission staff, and I could only see this happening if it were the sole means of avoiding a no-deal outcome. Probability: 5%.

Alternatively, the Westminster Parliament could vote for a re-run referendum, but this would be highly divisive and produce even more uncertainty. The timescale is not favourable when Electoral Commission guidelines are factored in. Many MPs would wish to avoid a popular backlash. Probability: 5%.

The Westminster Parliament could trigger a general election, but this would be unlikely under existing legislation (the Fixed Term Parliament Act). The Liberal Democrats have had recent financial problems and any party imposing an unwanted third election within four years could face an electoral backlash. Probability: 1%.

The Westminster Parliament would have to choose between passing a flawed deal with long-term consequences, and being held responsible for short-term economic disruption. It is my conclusion that a Parliament comprised mainly of MPs who backed Remain will pay only lip service to the Brexit referendum and ultimately pass a similar agreement. Probability: 60%.

Yet this is not guaranteed. The draft withdrawal agreement is highly offensive to Scottish and Unionist sensitivities and staunch Brexiteers who would run the EU’s gauntlet, hoping it blinked first. Would the EU really want to damage its trade surplus, its supply chains and its nationals working in the UK by being pig-headed? I am told that some continentals, notably Spain, have not started their no-deal preparations, so there would be serious consequences for them too.

Also, several pro-EU MPs would baulk at voting for withdrawal on any terms.

Time could run out for those expecting a typical last-minute EU compromise. I would put the probability of no-deal at 20%. This can be further subdivided depending on what exactly is meant by ‘no-deal’. In the sense of no agreement of any sort: only 5%. But a ‘no-deal plus’, which would mean no overall deal but with temporary arrangements or mitigating side deals in place, such as to provide certainty for EU nationals: 15%.