Think it through. Any Brexit agreement will come with a transition period. During transition, we will remain members, in effect, of the Customs Union. If no free trade deal is agreed when transition ends – currently expected to be December 2020 – a backstop will kick in.
That backstop will keep either Northern Ireland or the entire United Kingdom (let us pass over which for the moment) in a customs union. In effect, it may bind Great Britain as well as the province to much of the Single Market, too. Today’s Times says that the EU wants state aid, workers’ rights and environmental rules to be adhered to, a claim that has previously been reported.
All that being so, why would it want the whole UK or Northern Ireland, as the case may be, ever to leave the backstop? It would have achieved an important objective, entirely understandable from its own perspective – namely, to ensure that we remain locked in to its economic model.
Trade talks would thus stretch on towards the distant horizan after 2020. No wonder the EU won’t concede either a time limit or a unilateral escape clause from the backstop (an issue that Dominic Walsh of Open Europe explores on this site this morning). As C.S.Lewis put it in another context: “easy in but not easy out, as the lobster said of the lobster pot”.
This explains why Jacob Rees-Mogg believes that the current fever over who should see the Attorney-General’s legal advice on any Brexit agreement is a side issue. (He set out that view in our Moggcast earlier this week.) It also provides the basis for the ERG declaring that it is opposed to any extension at all of the Customs Union in the wake of the transition period, either de jure or de facto.
Some will disagree – arguing that a fully-fledged trade deal won’t be ready by 2020; that some backstop provision is reasonable, and that we’ve signed up to it, but that it can’t be allowed to last forever. They therefore want that unilateral escape clause, or perhaps a time limit. Which brings us to the contested business of Geoffrey Cox’s legal advice.
It is astounding in retrospect that some Cabinet Ministers at least saw none in wake of last December’s joint report, in which the backstop was originally set out. Michael Gove was assured by Downing Street that it didn’t commit Northern Ireland to full regulatory alignment. On this basis, it cleared a Sunday Telegraph article by the Environment Secretary arguing precisely that.
“Fool me once, shame on you. Fool me twice, shame on me, Gove said recently in Cabinet. He and other members want to see and study the full legal advice in the event of a deal. The DUP, Labour and other opposition parties want Parliament to see it, too. There may be a vote on a Humble Address to that effect next week. David Davis and others want the advice published.
The case against publication is that legal advice to the Government must be confidential because, if it is not, those who write it will inevitably tailor their advice, knowing that others than their client will read it. However, such advice has been published previously – notoriously in the case of Peter Goldsmith’s about the Iraq War, eventually issued in 2005.
There is a strong case now for arguing that, given the supreme national importance of Brexit, the full legal advice about any deal should be published before a decision is taken, rather than afterwards. Certainly, it will be very hard to keep such advice out of the hands of MPs as a whole, let alone the relevant Select Committees.
But while Downing Street has a case against publishing the full advice, and even against divulging it to Parliament, it has none against letting Cabinet members study it. The advice is advice to the Government – not to any single member of it, however senior. The Ministerial Code says that while its conclusions can be presented in summary form, “the complete text of the advice must be attached.”
A senior backbencher told ConservativeHome yesterday that he would expect such a summary to be a political argument for any deal underpinned by legal analysis. Under these circumstances, Geoffrey Cox would as a politician (as we anticipated on Monday) be supporting the proposed deal and, as a lawyer, be setting out its legal meanings and implications.
There would be nothing remotely untoward about this. Nor is the Attorney-General the man to bend his reading of the law – which would, in any event, be informed by other lawyers in his department, and elsewhere. None the less, the point still stands: Cabinet members would be entitled to see the full advice as well as the summary.
The reasons are obvious. Legal advice is seldom unambiguous. Its small print may have big implications. No wonder some Cabinet members want to see the full advice, see it in good time, and be able to study it: the blessed trinity of their demands. And no wonder, in turn, that Number Ten is apparently reluctant to concede this.
A question remains about whether only a final deal, signed off by the Prime Minister at a summit, should be subject to full timely study by Cabinet members. The common sense solution, since Downing Street will be looking for their support, is for them also to see legal advice on the Government’s proposals, such as those that they are currently being shown.
Theresa May is evident desparate to get a move on (though our EU interlocuters are less eager to rush). The Commons is in recess. The Cabinet may be summoned over the weekend. Either way, we are approaching a climacteric.