Withdrawal Agreement: Legal Position

Kevin Brennan Excerpts

Monday 3rd December 2018 Commons Chamber

[The Attorney General]

As my hon. Friend knows, that is not a legal question. We have reached a deal. The House must make a judgment on this deal. If it had been possible to secure a unilateral right of termination, it would have been secured. It was not secured because the European Union asked for an absolute guarantee at the Northern Irish border, but has said that it is temporary; that is written into the agreement. It may well be that the word “temporary” is not enforceable, in the sense that this will subsist even in the event of negotiations breaking down, but that is a clear indication that the backstop cannot subsist forever; and, in my view, as a matter of European Union law, it cannot.

[Kevin Brennan (Cardiff West) (Lab)]

This was not just any motion; as the right hon. and learned Gentleman says, it was a motion for a return to release papers under parliamentary privilege. There are two reasons why he is wrong: first, he says of his advice, “There’s nothing to see here,” yet he is trying to argue that by releasing it, he would somehow breach considerations of national and public interest. Secondly, under the ministerial code, he can voluntarily release advice in exceptional circumstances without breaching any considerations of national interests, or any of his deeply held principles. Why does he not follow that logic and do the right thing?

[The Attorney General]

The existence of very rare examples of the Attorney General’s advice being disclosed does not mean that the power ought to be exercised in this case. In the Goldsmith case, it was disclosed two years after the event. We are in the middle of a negotiation.

[Kevin Brennan]

We have finished the negotiations.

[The Attorney General]

No, we have not. The future declaration is to be negotiated, and many of the same arguments will apply.