EU Withdrawal Agreement: Legal Advice

Hilary Benn Excerpts

Tuesday 13th November 2018 Commons Chamber

[Hilary Benn (Leeds Central) (Lab)]

This has been a very constructive and helpful debate, and it greatly illustrates the power of the House to concentrate the mind of the Government. I would say to the right hon. and learned Member for Beaconsfield (Mr Grieve), who has just sat down, that I do not think Parliament doing its job is coercing the Government; it is Parliament doing its job.

I accept, as my right hon. and learned Friend the Member for Holborn and St Pancras (Keir Starmer) did at the beginning of his powerfully argued, forensic case, the argument that in general, Governments should not be required to release legal advice. It is a long-standing convention, contained, as we have heard, in the ministerial code, and the reasons for it are well understood. However, in this specific case, I would argue that we need to take other considerations into account. I note that the Minister quoted from “Erskine May”—he did so at some speed, but there was a word in there that I want to highlight. The sentence says:

“Therefore, the opinions of the law officers of the crown, being confidential, are not usually—

I emphasise “usually”—

“laid before Parliament, cited in debate or provided in evidence before a select committee”,

so “Erskine May” concedes that it is not an absolute bar.

The first consideration—this was the first reason that my right hon. and learned Friend the Member for Holborn and St Pancras set out—is the scale and importance of the decision that we are going to be asked to make. I do not think it is a subject of argument in the House that the withdrawal agreement that is currently being negotiated will have the most significant implications for the future of our economy, society, laws, and international obligations, including the Good Friday agreement. It will also have implications for the EU withdrawal agreement Bill, which the right hon. and learned Member for Beaconsfield referred to a moment ago. When we come to that Bill the House may well be told, “You need to agree to this clause, because that’s what we signed up to when we finalised the withdrawal agreement.” The current draft of the agreement—at least, the March version—is 129 pages; it is already very complex. If there is an agreement, the section on the obligations that we may take on in respect of the Northern Ireland backstop is likely to be even more complex still, judging by the reports that we read.

What seems to be going on at the moment is that the EU is insisting—this goes to the heart of some of the concerns that have been expressed about the withdrawal agreement—that the Northern Ireland-only backstop that it has proposed has to remain in the agreement, whereas the Government are arguing that the UK-wide customs backstop ought to be prioritised, so that the Northern Ireland-only version is never used. As we know, the problem with the UK-wide backstop is that in truth, if it ever comes to be used, it will have to remain in place. There are arguments about a time limit, which I know the Minister understands, and about one party unilaterally deciding to pull the plug on the backstop. Neither of those can possibly be the case, because whatever backstop is applied, including the UK-wide backstop, it will have to remain in place unless and until something else comes along that achieves the same outcome, which is to keep the Northern Ireland border as it is today.

The backstop may well need to be used—how many people in the House actually believe that between now and December 2020, all the issues relating to our future partnership will be negotiated successfully? I bet that almost no one does. Apart from former Government Ministers who expressed great confidence that it was possible, nobody thinks that it will be. Therefore, in the absence of an extension of the transitional period, whatever backstop is agreed in the next day or two, if that is what happens, will have to come into effect. That is why we read that the EU side is trying to get clear commitments from the UK about single market rules, employment legislation, state aid and most recently, fisheries.

The irony is that having initially rejected the idea of a UK-wide backstop because it feared that it would pre-empt the negotiations on the future relationship, the EU then said that it was willing to discuss it, but now it realises that it has to work through and tie down a whole load of things, precisely because the backstop might last for a long time and, in effect, become the future relationship pro tem. The argument we are making is that the House, along with businesses and everyone else affected, needs to understand in particular the bit of the agreement that we have not yet seen and what legal obligations we will be taking on. That is the first point.

The second point is the argument for transparency. It pains me to say this, but it is true: throughout the process thus far, there has been a general reluctance on the part of the Government to release the information that we need. I say that as the Chair of the Exiting the European Union Committee, because it is an issue on which the Committee has expressed strong views. I think I am right in saying that this is the third occasion on which a motion for a Humble Address has been used to try to persuade Ministers to give us information and advice relating to the Brexit process. I will not go over the history of the impact assessments that never were or the exit analyses that we did eventually get to see, but suffice it to say that the magnitude of the Government’s choices about their strategy for implementing the referendum decision has not been matched by careful analysis of the impact of those choices. It still seems extraordinary to me that at the time of the announcement that the UK would be leaving the customs union, the Government had not undertaken a formal quantitative assessment of the economic impact of doing so. That was what the former Secretary of State told us when he appeared before the Committee. It is welcome that the Government have made commitments, repeated from the Dispatch Box today, that we will get a full economic assessment if there is a deal, but I gently say that it is far too late in the process.

It is now absolutely clear that the Government’s red lines have boxed them in, which is why we are having this discussion about the Northern Ireland backstop, and were never tested for their implications before they were announced. We are living with the consequences. The reason why there is a problem with Northern Ireland is precisely that the Government said on the one hand, “We are leaving the customs union and the single market,” and then on the other hand, “Oh, by the way, we want to keep an open border between the Republic and Northern Ireland.” As the negotiators are discovering late into the night and into the early hours, it is really, really hard to square that circle.

My final point is that this decision is not just for the Cabinet. Clearly, whether the Cabinet agrees will be important, but it is a decision for Parliament. Parliament therefore needs all the information it requires to do its job, including the legal advice. Ministers have argued that the advice cannot be released, but the Chancellor of the Duchy of Lancaster and Minister for the Cabinet Office said that a statement of the legal position could be published. The right hon. and learned Member for Beaconsfield made the really important point that the two cannot, by definition, be different—they must be the same.

[Mr Grieve]

The thrust of the two must be the same, but it is possible for them to be worded differently, and for one to take account of all the factors the Attorney General was asked to take into consideration and the other to set out the Government’s collective position. That is the really important constitutional point. Provided that there is enough time for the statement to be properly considered, I think it ought to meet the need the Opposition have rightly raised.

[Hilary Benn]

I absolutely bow to the right hon. and learned Gentleman’s expertise. I was going to make a second point, which may offer Ministers some comfort: also by definition, the legal advice the motion seeks to have released has not yet been written, because we do not yet have a withdrawal agreement. Only when we have a withdrawal agreement will advice be written about what it means, to advise the Cabinet and, I hope, Parliament.

[Angus Brendan MacNeil]

Will the right hon. Gentleman give way?

[Hilary Benn]

I will, and then I shall bring my remarks to a close.

[Angus Brendan MacNeil]

The right hon. and learned Member for Beaconsfield (Mr Grieve) has just made clear why the legal advice, rather than a report on it, must be published. Remember Roger Casement, who said he was hanged on a comma—any change in wording seriously changes the meaning of the legal advice.

[Hilary Benn]

I take the hon. Gentleman’s point, but I think the House agrees that there could not be a difference between the two, for reasons that Government Members have clearly set out.

These are unique circumstances. It seems to me that, in his typically elegant way, the Minister went a long way towards meeting the requirements of the motion. If it is pressed to a vote, I hope he follows the logic of his own argument and supports it in the Division Lobby.