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What the Government had to hide over the Withdrawal Agreement. Now we know


As we know, a number of MPs are challenging the government’s refusal to disclose the full text of the legal advice given by the Attorney General in relation to the Brexit Withdrawal Agreement.

Instead the government is offering a summary of the advice which is rightly being rejected as inadequate by these MPs. The refusal is odd, although not entirely unexpected given the government’s consistently deceitful approach to Brexit to date.

One would have thought that the government would welcome close scrutiny of such advice in order to show that the WA was entirely legal and above board, to reassure both MPs and the public, if not to avoid the risk of a further legal challenge. Clearly, a summary presumably written by civil servants interpreting the text, cannot be the same as the text itself or of equal value. Indeed, how could MPs debate something that exists only in that form without seeing the document itself? Who is to judge that the summary presented omits vital clauses? They rightly smell a rat!

Why then should the government seek to refuse disclosure? Does it imply that it has something to hide that could possibly imperil the WA?

I believe with others that this is an extremely important development in the Brexit saga and that the burden of proof rests entirely with the government to show that the WA is legal in every respect.

This links in with the challenge from Conservative MP Sir Bill Cash to the government asserting that the WA is in fact illegal and so far the government has failed to rise to this challenge and provide an adequate answer. He wrote in the Telegraph: ‘Crucially, the Prime Minister’s Withdrawal Agreement is incompatible with the Withdrawal Act 2018. This Act, enacted on 26th June, converts all EU law into British law and makes the entire European Communities Act 1972 null and void from 29th March 2019. However, under Mrs May’s contaminated agreement, during the transitional period after Britain leaves the EU, from 29th March 2019 to 31 December 2020, a tampered version of the 1972 Act will remain in place. In other words, the 2018 Act of Parliament – the law of the land, which takes primacy over a treaty – will be scaled down and rubbished. What does all this mean? The consequence is that unless a new act saves her, Mrs May’s Brexit deal becomes inconsistent with the referendum vote, and illegal.’

He further stated: ‘If the Attorney General was not even asked for advice as to the incompatibility of the Withdrawal Agreement and the 2018 Act, the crisis deepens.

‘Had the Prime Minister sought legal advice she must have been told that this mere treaty cannot override the repeal of the 1972 Act. This is a “manifest violation” of our fundamental constitutional arrangements because Acts of Parliament take precedence over treaty-making prerogative.’

So the debate now turns, not on whether or not the WA provides the basis for a ‘good deal’ or otherwise which is an entirely secondary issue anyway, but rather on the whole legal basis of proceeding with the WA in the light of the Withdrawal Act 2018 as Sir Bill points out.

In turn, this raises a serious question over the PM’s constant refrain that leaving the EU means ‘taking back control over our own laws’. Clearly that cannot be the case since the Withdrawal Agreement if implemented would return multiple EU laws to the UK, requiring submission by the British government and people. A 586-page volume issued by the EU and approved by Theresa May will tell us how.

Logically then we must ask what was the whole point of the referendum if we are back under EU laws for an unspecified period and only for a possible exit in a way also not under full parliamentary control? Also, what was the point of passing the Withdrawal Act 2018?

Apart from the unresolved issue of the legality of the WA, surely never was there a more urgent need for a government to demonstrate complete candour and transparency on an issue of such national importance. Where is Gina Miller when she is needed?

Editor’s note: Since we published this article a confidential analysis of the Withdrawal Agreement by the House of Commons’ own expert legal team has been obtained by Brexit Central.
You can read a full analysis of it here.

The document confirms the worst fears; It contradicts the PM’s key promises  – namely that the WA allows for an independent trade policy, takes back control of our laws, frees us to set our own agricultural subsidies. It does none of these. Furthermore it explains that the UK could be outvoted on arbitration panel promised for dispute resolution. The Government is already on the rack for refusing to publish the Attorney General, Geoffrey Cox’s advice. The publication of this 27 page advice from the House of Commons EU legislation team undermines Mrs May’s credibility even further.

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Graham Wood
Graham Wood
Graham Wood is an activist and campaigner living in York.

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