MPs slam ministers for refusing to release full Brexit deal legal advice as Attorney General faces being SUSPENDED from Commons - but May vows she WON'T back down
- Theresa May is facing claims of contempt of Parliament over Brexit legal advice
- Commons resolved that full advice from Attorney General must by published
- Labour, Tory rebels and DUP say summary legal advice do not meet demands
- PM told Cabinet that ministers are defending an 'important point of principle'
- Mr Cox and other ministers could face suspension from the House of Commons
- Sir Keir Starmer told the House government cannot defy a 'binding motion'
By
James Tapsfield, Political Editor, For Mailonline
Published: 19:12 AEDT, 4 December 2018 | Updated: 01:18 AEDT, 5 December 2018
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A slew of MPs condemned ministers for refusing to release the full Brexit deal legal advice today - as Theresa May vowed she will not back down.
Amid a crucial test of strength between the House of Commons and the government, Labour's Keir Starmer warned that ministers are committing contempt of Parliament.
Tory rebels, the DUP, the SNP and Lib Dems joined the attack amid threats that Attorney General Geoffrey Cox could be suspended as a punishment.
But, as Mr Cox looked on in the chamber, Commons Leader Andrea Leadsom 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.
Kicking off the titanic 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.
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The Government has tried to head off the burgeoning crisis by tabling amendment to the contempt motion that would task the Privileges Committee to look at the issue and 'consider the national interest arguments for not releasing the legal advice alongside the Government's duty to Parliament'.
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 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.
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.
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.'
Commons Leader Andrea 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.
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.
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.'
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.'
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Theresa May (pictured in Downing Street last night) has vowed to defend the 'important principle' that government legal advice is confidential
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Keir Starmer pushes for the government to disclose AG's advice
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.'
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What comes next for the Prime Minister and her deal with the EU?
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 fallback plan agreed with Brussels was 'not the future relationship that either the UK or the EU wants to have with one another', Olly Robbins told the Exiting the European Union Committee.
What is in the summary of legal advice on the Brexit deal?
- 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.
He said: 'It is an uncomfortable position for both sides and the reality ... is that there is not a withdrawal agreement without a backstop.
'That reflects also, as I've said to this committee before, ministers' commitments to Northern Ireland and to avoid a hard border on the island of Ireland, rather than being something imposed upon us.
'So, it is a necessity and a slightly uncomfortable necessity for both sides.'
Asked if the Government had drafted a clause for the Withdrawal Agreement which would have allowed the UK to opt out of the backstop unilaterally, Mr Robbins said: 'Ministers asked us to look at a whole range of options for how to bring the backstop to an end, and so we did.
'And the Prime Minister and other ministers tested some of those out on European partners.
'But, what we went into the negotiation with in the end was a text that delivered the termination clause very much as it is laid out there.'
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'.
Labour's Chris Bryant, a supporter of the People's Vote campaign for a second referendum, attacked the paper's release when MPs had demanded to see the full legal advice given to ministers by Mr Cox.
He said: 'The House of Commons was very clear that the full legal advice to the Cabinet should be supplied to Members of Parliament.
'The refusal of the Government to comply sends a very clear message about the Brexit deal - that it is bad for Britain, satisfies nobody and will weaken our economy and our voice in the world.'
Meanwhile, demands for a second referendum are mounting after the dramatic resignation of universities minister Sam Gyimah over the weekend.
Senior Labour figures including shadow Brexit secretary Sir Keir Starmer and deputy leader Tom Watson are thought to be ramping up pressure on Jeremy Corbyn to back a fresh national ballot.
Environment Secretary Michael Gove admitted over the weekend that a referendum was a potential outcome if Mrs May loses, but said it would 'rip the social fabric of the country'. He also insisted Leave would win by a bigger margin than in 2016.
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Theresa May says 'there's a lot more for me still to do'
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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.