UK gov’t faces contempt debate over Brexit legal advice

After the intervention by the Speaker John Bercow, the House of Commons will debate on Tuesday whether the government is in contempt of parliament for withholding its legal advice on Brexit.

The move came after opposition parties led by Labour and the Democratic Unionist party attacked ministers for publishing only a summary of the Brexit advice, despite a vote on November 13 demanding full publication.

“There was an arguable case that a contempt has been committed and set aside time on Tuesday to debate the issue — just as MPs were meant to be beginning a five-day debate on Brexit itself,” said the Speaker John Bercow.

Geoffrey Cox, the attorney-general, who was defending the government’s Brexit policy in the Commons during a 150-minute debate on Monday evening, admitted he was ready and prepared to be suspended for contempt.

“The House has at its disposal the means by which to enforce its will . . . it can seek to impose a sanction, I fully accept that,” he told MPs. But he insisted that he had sought to comply with the “spirit” of the Commons by enduring a grilling by MPs as well as publishing his legal summary earlier in the day.

The contempt motion was issued by all of Britain’s main opposition parties: Labour, the DUP, the Scottish Nationalists, Plaid Cymru, the Liberal Democrats and the Greens.

It is expected that a cabinet minister could be suspended for several days, meaning they may not be in the chamber for the crucial Brexit vote on December 11. It was not immediately clear whether the sanctioned individual would be more likely to be Cox or David Lidington, the Cabinet Office minister.

Among those criticising the government was Jacob Rees-Mogg, a prominent Brexiter, who said Cox had failed to explain why the government would not publish its full Brexit legal advice. “It is no longer a matter for the government to judge; it has been decided by this House, which is a higher authority,” he said.

In the earlier debate on Monday on the legal advice Cox admitted there were some “unattractive, unsatisfying elements” to Theresa May’s Brexit withdrawal agreement even as he urged rebel Tory MPs to vote for it in the crunch December 11 Commons vote.

The agreement does not contain any provision on its termination. In the absence of such a provision, it is not possible under international law for a party to withdraw from the agreement unilaterally
The pro-Brexit attorney-general acknowledged Eurosceptic Conservative MPs’ concerns over a controversial arrangement to avoid a hard Irish border.

The government’s chief legal officer insisted he was not trying to “disguise” the fact that there was no unilateral right for the UK or the EU to terminate the so-called Irish backstop, prompting one backbench Tory MP to cry: “It’s a trap.”

Some Eurosceptic Tories fear the backstop — by introducing a UK-wide customs union with the EU — would tie Britain closely to the bloc in perpetuity.

But in a Commons statement on the government’s legal advice on the Brexit withdrawal agreement, Cox said he did not believe that the UK would end up “entrapped” in the backstop.

He told MPs: “I make no bones about it — I would have preferred to have seen a unilateral right of termination in this backstop . . . But I’m prepared to lend my support to this agreement because I do not believe that we’re likely to be entrapped in it permanently.”

Despite his sometimes theatrical attempts to win over sceptical MPs, Cox faced an array of criticism from all sides.

Opposition parties joined together to try to force the government to publish all the legal advice it has received on the Brexit withdrawal agreement, including from Cox, after MPs voted in favour of this happening last month.

Labour and other parties wrote to the Bercow urging him to launch contempt proceedings after the government insisted on releasing only a summary of the legal advice on Monday.

The 43-page document confirmed the UK lacks a unilateral means to escape the Irish backstop under the withdrawal agreement.

“The agreement does not contain any provision on its termination,” it said. “In the absence of such a provision, it is not possible under international law for a party to withdraw from the agreement unilaterally.”

But the document said Britain could only be locked into the backstop with the EU “temporarily”, adding the two sides would use their “best endeavours” to conclude an agreement on future relations by December 2020, at which point the arrangement would no longer apply.

May spent much of Monday meeting small groups of MPs as she began a week-long attempt to avert a heavy defeat in the vote due on December 11.

She had been due to open a five-day Commons debate on her Brexit deal on Tuesday by telling MPs: “The British people want us to get on with a deal that honours the referendum and allows us to come together again as a country, whichever way we voted.”

Many Conservative MPs are amazed by May’s apparent determination to press ahead with the vote, which they believe she is certain to lose. “She must have a plan B,” said Anna Soubry, a pro-EU former trade minister.

May’s spokesman insisted she had no intention of postponing the vote, but she is struggling to neutralise Eurosceptic Tories’ anger over the Irish backstop.

David Davis, the former Brexit secretary and leading Eurosceptic, said the summary document of the government’s legal advice was even worse than expected.

“The backstop customs union is indefinite, the UK would be a rule taker and the European court [of justice] is in charge of our destiny, rather than the sovereign UK parliament,” he said.

Olly Robbins, Mrs May’s Brexit negotiator, insisted on Monday that the Irish backstop was the only way to ensure a functional withdrawal agreement, and that it was a “slightly uncomfortable necessity for both sides”.

While the backstop poses problems for the UK partly because it cannot unilaterally pull out of it, the arrangement also presents issues for the EU.

These include how the backstop would align Northern Ireland to parts of the EU single market, making the region a particularly attractive location in Europe for inward investment, because it would be able to simultaneously trade freely with mainland Britain and the EU.

It emerged on Sunday that Robbins had written to May suggesting the backstop could be a “bad outcome” for Britain because there was no legal guarantee that the UK would be able to end it.

Quizzed by MPs on Monday, Robbins said he believed that extending the Brexit transition period instead would negate some of the “negative consequences of being in the backstop”.

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