Brexit: Attorney-General’s Advice

Debate between Lord Keen of Elie and Lord Bridges of Headley

Thursday 29th November 2018 Lords Chamber

[Lord Keen of Elie]

My Lords, the observations of the noble Baroness simply underline the prematurity of this Question. A Statement is going to be made by my right honourable and learned friend the Attorney-General on Monday. To anticipate the content of that Statement in the way proposed by the noble Baroness is wholly inappropriate. As regards the suggestion that the Government are hiding anything, perhaps I may quote the noble and learned Lord, Lord Goldsmith, who said that advice from the Law Officers is,

“covered by legal professional privilege, and is subject to a long-standing convention which prevents disclosure of the advice (or even the fact that the Law Officers have been consulted)”.

That explains why it is not appropriate for me to go further. However, to anticipate a Statement that has not yet been made is, I suggest, wholly inappropriate.

[Lord Bridges of Headley (Con)]

My Lords, given that we are so fortunate to have my noble and learned friend—

[Lord Marks of Henley-on-Thames (LD)]

My Lords, in March 2003 the Government resisted publishing the Attorney-General’s full advice on the legality of the war in Iraq, publishing a summary only. That episode showed how misleading a summary can be and how such tactics discredit government. Will the promised full, reasoned Statement to which the noble and learned Lord referred amount to more than a summary, and will it be the work of the Attorney-General? Are the Government determined to repeat the mistake of 2003, and this time in defiance of a binding Motion on a humble Address requiring publication of the full advice? Do the Government have any proper basis for defying that Motion? The noble and learned Lord has not addressed that question. Is not the only possible inference that the Attorney-General has advised that the Prime Minister’s deal would tie the United Kingdom to the backstop unless and until the European Union agrees to its release?

--- Later in debate ---

[Lord Keen of Elie]

I am not suggesting for a moment that the will of Parliament is going to be ignored.

[Lord Bridges of Headley]

My Lords, I apologise to the noble Lord, Lord Marks, for my earlier enthusiasm. My question is not precisely on this point; it is on a point that I raised yesterday which I believe has a very material impact on the decision that Parliament is about to take. In July last year, the European Commission said explicitly that, once triggered, Article 50 cannot be unilaterally reversed. Will the Government make it clear, before Parliament has a meaningful vote on whether to accept or reject the deal, whether they accept that point of view?

[Lord Keen of Elie]

My Lords, I spent an interesting day on Tuesday before 26 judges in the Court of Justice of the European Union, where this matter was addressed. I am advised that the Advocate-General to the court will deliver his opinion—of course, it is not an opinion binding upon the court itself—on 4 December.

Brexit: Negotiations

Debate between Lord Keen of Elie and Lord Bridges of Headley

Tuesday 20th November 2018 Lords Chamber

[Lord Keen of Elie]

It is suggested that my party had the first one. I believe Harold Wilson had a referendum over the EU rather before my party, but I may be mistaken about that. I am obliged to the noble Baroness.

It is said by the noble Lord, Lord Reid of Cardowan, that we have arrived at an impasse. We have not. We have arrived at an agreement, and it is one that will go before the House of Commons in the near future.

The noble Lord, Lord Steel of Aikwood, talked about crashing out without a deal, and we have had references to car crashes and catastrophes. Such arguments are not improved by overstatement. That, with respect, is what has been happening, perhaps at both ends of the spectrum, with regard to the debate on this matter and it takes away from the factual issue. It plays into what the noble and learned Lord, Lord Goldsmith, referred to as the “storytelling” that can sometimes fog proper decision-making in this context.

The noble Lord, Lord Steel, also referred to “a defective deal, at great expense”. Again I remind him that the sum of £35 billion to £38 billion is not a great expense; it is a negotiated means of meeting our outstanding obligations under international law, and that is what we intend to do.

The noble Lord, Lord Browne of Belmont, also raised the question of Northern Ireland. Again I emphasise that the issue of the backstop, even if it comes into play, will be subject to the obligations of “best endeavours” and to the independent arbitration process provided for in the withdrawal agreement. I also note that there is no limitation at all upon the movement of goods from Northern Ireland to the remainder of Great Britain. That movement remains wholly unimpeded by these terms.

My noble friend Lord Bridges of Headley referred to the political declaration. Of course, as he later observed, it is not yet complete, which is why we must wait to see the outcome of further discussions regarding the political declaration in order to see where we are going to be. It is certainly not the time to anticipate what that outcome might be.

[Lord Bridges of Headley]

My Lords, I understand that it is premature, but could my noble friend therefore refute the proposition put forward by the EU’s deputy negotiator that the political declaration means that the customs union will be the basis of the relationship?

[Lord Keen of Elie]

The withdrawal agreement has expressed the terms for the implementation period and the present political declaration has indicated where negotiations will begin, but where they will end is a wholly different matter. It is a case of saying that it is a work in progress and we will have to await the outcome of that further negotiation.