Now for the Hard Part: Two Weeks On

Now for the Hard Part: Two Weeks On

December 2018 | Politics

It has been a significant day in the Brexit saga with some important developments. For the first time, it is possible for the exit deal to pass the UK parliament.

It has been a significant day in the long tortured path of the Brexit saga with a number of very important developments. For starters, the EU's chief lawyer - the Advocate General of the European Court of Justice - has declared that Article 50 can be revoked unilaterally by a member state much to the horror of the European Commission. It has always been believed that revocation of Article 50 required the consent of the EU member states, to prevent members using the threat of leaving to extract concessions. Now it has been declared otherwise in response to a court case filed by a group of Scottish politicians, the ECJ needs to confirm this opinion, but it is unusual for them to disagree with the Advocate General. The UK government has spent a lot of time and effort trying to prevent the case from even getting the ECJ, presumably at the behest of the commission and other EU members. Their goal has been to prevent this ruling. Now it has been made, it opens up the possibility of a second Brexit referendum and the possibility of the UK not leaving the EU at all.

Needless to say, this has provoked a backlash from Brexiteers. For the first time, there is a realistic chance that the Brexit deal might actually pass the House of Commons with their support. The cause is a benign looking procedural motion tabled by centrist Tory MP Dominic Grieve at the start of the mammoth 5-day Brexit debate on the agreement. The motion gives MPs the right to make binding amendments to any commons votes or legislation on the withdrawal agreement. All parties recognise this for what it is. An attempt to prevent a no deal Brexit by ensuring that MPs can block any government actions that would lead to no deal. Some Brexiteers are still confident that they can force no deal anyway, given that the EU withdrawal date is already coded in legislation. Other Brexiteer MPs will shift their votes to supporting May's deal on the grounds it is still likely to be more acceptable to them than any other realistic alternative deal. The agreement will still be defeated in next week's vote, but it is possible that the margin might be small enough for further concessions and some clarifying language to be added to the agreement prior to a second commons vote.

The fact this situation has arisen at all indicates the current weakness of the government. Unusually, it appears that the whips have no leverage to force the compliance of their MPs on Brexit. Normally supportive MPs on both sides of the debate are breaking ranks, whilst an otherwise successful confidence and supply agreement with the DUP has broken down entirely. All this was epitomised by the remarkable scenes earlier in the day of the government being held in contempt of parliament.

One day, we'll find out exactly why the government has resisted releasing the full legal advice it received from the Attorney General on the Brexit deal. The civil service believes that an inquiry into the handling of the Brexit negotiations is inevitable. Certainly, Theresa May's handling of the process has upset many MPs and ministers who feel like they have been shut out of the process. Several incidents have stood out, where the government has put a lot of effort until blocking otherwise minor requests for reasons that aren't clear.

What we do know is that on the 13th November, Parliament demanded that Geoffrey Cox's review of the Brexit deal be handed over to MPs. The motion requesting the relevant documents was backed up all opposition parties, the DUP and a large number of Tory MPs, who wanted more detail about the withdrawal agreement after concerns were raised surrounding the legality of the backstop and whether the UK could withdraw from it unilaterally.

The government initially agreed to the request, but subsequently changed their mind. Instead, they released a 53 page summary of what Cox said. According to some rumours, this document is actually longer than the original version that was shared with the cabinet several weeks ago. Then on Monday, Cox addressed Parliament, claiming to be the first Attorney General in 40 years to take questions from MPs at the dispatch box. There were no real surprises. The UK doesn't have the ability to withdraw from the backstop, but we knew that anyway. Cox described the backstop as a calculated risk, in an astute and widely admired performance that couldn't hide the paucity of his position. Supporters of the Brexit deal have been saying all along that it is an unacceptable to the EU as it is to the UK, because it gives the benefits of the customs union without the obligations. This may be true, but the backstop is far more tolerable to the EU than to MPs. It is the reason why the government is having such difficulty in getting support for the agreement.

Whatever is in that legal advice must be worth hiding because a cross-party group of MPs followed up Cox's address by tabling a motion declaring him and David Liddington, the Cabinet Secretary, in contempt of Parliament for not releasing the actual document. If passed, both men can be suspended as MPs for up to 5 days and suspended from the government for 20 days. This goes to the heart of the current difficulties, there has been a breakdown in trust between the Prime Minister and Parliament. MPs don't believe that the information they received is an accurate reflection of what Cox told the Prime Minister. Cox is the one taking the heat, but everyone knows that the real target is Theresa May, she is the one who made the decision not to release the original legal advice claiming that Parliament's request is a breach of attorney-client privilege.

An unrelated case involving a company suing Facebook showed exactly what MPs think of that argument. Damien Collins if the DCMS Select Committee, forced an American visitor to hand over confidential documents on Facebook's business practices that he had been given as part of a court case in California. Never mind that the documents had been embargoed by the court. The Sergeant at Arms escorted the man to Westminster and forced him to hand the documents over under threat of imprisonment.

Parliamentary privilege overrides any confidentiality agreement. This is a wide-ranging power that has been used in the past to break gag clauses in court orders. MPs can request any information they like, and summon anybody to appear before them. Failure to comply is a criminal offence that carries a jail sentence as Mark Zuckerberg will find out if he ever visits the UK again. Nor can an MP be prosecuted for anything that is said inside Westminster. On the flip side, Parliamentary debates don't have to take place in public. Closed sessions are rare because they're considered undemocratic, but are permitted if national security requires it.

If the government is concerned that the Brexit legal advice is sensitive, they could have released it to MPs as a classified document so that it couldn't be shared with the public. That she hasn't indicates that its contents are likely to increase domestic opposition to the deal she reached with the EU, or at least that's the opinion of MPs. They were calls for a cross-party approach to Brexit negotiations after the 2017 General election, but they weren't headed. Theresa May hasn't even attempted to include her own party in the talks, with 2 Brexit Secretaries resigning because they'd been kept out of the loop on what the government's strategy was. This is totally in character for the Prime Minister, who was known for being highly secretive when she was at the home office, even withholding information from other members of the government.

This has contributed to the current impasse. Everyone believes they could have negotiated a better deal, because they don't know what tradeoffs have been made. Many Tories think that she is too focused on immigration at the expense of everything else, when their core focus is increasing British Sovereignty. Others believe that a compromise on Freedom of Movement along the lines of the Swiss system could lead to a closer relationship. Then there is the People's Vote campaign which are willing to do anything to overturn Brexit. All these groups have been excluded from the decision making process, with the only cabinet level debates on the topic happening this year more than 18 months after the initial vote. Sadly, we're seeing the end result. No one agrees to the withdrawal agreement, because no one supports the initial red lines and the government's negotiating position. This could have been avoided with a more open approach, when even the ministers conducting negotiations are complaining about being blindsided then you know there is a problem.

Finally, there is the news that Nigel Farage has left UKIP over their relationship with EDL founder Tommy Robinson. There have been persistent rumours that he intends to found a new party with the backing of controversial millionaire Aaron Banks. He could also try a takeover of the Social Democrat Party, which accepted UKIP MEP, Patrick O'Flynn into its ranks last week. The SDP is a descendant of the high-profile 1980s Labour Party splinter group, but bears little resemblance to its famous forebear. For one it is highly eurosceptic.


So the Government has published the legal advice it received from the Attorney General. There is nothing new in it, nor is there anything relevant to national security in it. It states in black & white that the UK can't unilaterally exit the backstop, but we knew that anyway. Having glanced through it, there is no reason whatsoever for the Government to have fought so hard to keep it secret, beyond Theresa May's love of secrecy.

Written by Alan Chatfield