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Privilege (Withdrawal Agreement: Legal Advice)

Part of the debate – in the House of Commons at 1:15 pm on 4th December 2018.

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Photo of Bill Cash Bill Cash Chair, European Scrutiny Committee 1:15 pm, 4th December 2018

Just one moment. If there is a danger that the withdrawal agreement could be invalid, that is a matter of fundamental importance on which I would have expected the Attorney General to include his opinion, but there is no evidence whatsoever that he referred to that in his opinion, and that is why we need full disclosure. I also understand that there are sheaves of papers within governmental circles unpacking the repeal of the 1972 Act with respect to the prospective withdrawal and implementation Bill, which is again a matter of extreme public importance. By any standards, all these matters fall not only within the ministerial code, but within what I would have hoped and expected the Attorney General to deal with in his opinion and the statement he gave yesterday, but there was nothing there to give me any comfort whatsoever.

To say that we should move on and get real and that what the Attorney General thinks is in the national interest actually is in the national interest does also bear on the question of whether the European Union (Withdrawal) Act is a matter of extreme public interest and fundamental importance. The failure to address that question in the introduction and in the legal statement seems to be a mistake of the first order and, furthermore, to be inconsistent with what I would have expected from the legal opinion of the Attorney General.

As to the role of the Attorney General, I simply refer to the authoritative work “The Attorney General, Politics and the Public Interest”, published in 1984 and written by Professor John Edwards. In his chapter dealing with ministerial consultations with the Law Officers, it is made clear that all legal advisers from all Departments will ultimately turn on the view of the Attorney General. Edwards states that there will be times when the Attorney General, perceiving the legal implications of a Department’s proposed course of action—in this case, No. 10 and the Department for Exiting the European Union—will find it necessary to oppose a Minister’s preferred policy. Such opposition must also derive from the legal implications of the proposed policy.

As Edwards says on page 190 of his authoritative work, for the Government to reject such advice would be quite exceptional and would reasonably lead to serious questioning by the Attorney General himself of his continuing to serve as the Government’s chief legal adviser. Without full public disclosure of his opinion, it will be impossible to get to the bottom of all the considerations that are at the heart of the issue of public trust to which the former Secretary of State for Exiting the European Union referred regarding the manifesto and the reasons for his resignation and the conduct of the Government, to which I have referred myself in terms of broken promises made in the House recently.

The reason why my European Scrutiny Committee is making a full inquiry into this situation is, in a nutshell, because we want to get to the bottom of the conduct and the processes and the outcome of these negotiations, and we will do so by taking evidence. I trust that the Government will take note of the seriousness of the suggestions and the arguments that I am putting forward, because they go to the heart of public trust, the referendum vote itself, the repeal of the 1972 Act, whether the Attorney General has fully addressed the consequences for the withdrawal agreement of the opinion that he has given, which we have a right to see, and whether it is really in the public interest for it not to be disclosed.