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Brexit: Revocability

Volume 787: debated on Wednesday 20 December 2017


Asked by

To ask Her Majesty’s Government whether they will publish the advice they received from the Attorney-General on the revocability of the notice to the European Council that was given by the Prime Minister on 29 March 2017, in accordance with Article 50(2) of the Treaty on European Union, of the United Kingdom’s intention to withdraw from the European Union.

As the noble Lord will know, there is a constitutional convention set out in the Ministerial Code that the Government do not comment on the fact of, or content of, advice that may or may not have been given by the law officers. The Government have been clear that as a matter of firm policy our notification to leave the European Union will not be withdrawn.

Although I am not surprised by that Answer, I thought that the Government might at least have allowed parliamentarians to view this opinion in some dark corridor at the far end of Whitehall. This is a very important issue. We have been advised many times by the noble Lord, Lord Kerr, that the notification is revocable. Yesterday, Mr Barnier said that it is revocable but only with the consent of the 27 other countries. Last week, Sir Oliver Letwin claimed that if Dominic Grieve’s amendment went through and Parliament did not agree on the deal, the effect would be for us to remain in the European Union and not to fall out. This is a very important question. What is the Government’s stance or is it their policy to keep this issue fuzzy so that the people of this country are misled and deceived by it?

I am of course sorry that the noble Lord is disappointed but this is a historic convention, also recognised in Erskine May, which states:

“By long-standing convention, observed by successive Governments, the fact of, and substance of advice from, the Law officers of the Crown is not disclosed outside government”.

My Lords, will the Minister accept that Erskine May continues, that,

“if a Minister deems it expedient that such opinions should be made known for the information of the House”,

that is perfectly permissible? Will he accept also that there have been many occasions over the years when the advice of the law officers has been published, and will he accept the conclusion of Professor John Edwards in his authoritative book, The Attorney General, Politics and the Public Interest, that the decision whether to publish particular advice of the law officer depends on,

“considerations of political advantage or embarrassment to the government”?

Does he agree?

The noble Lord is of course very experienced in legal matters and I thank him for his very interesting opinion.

My Lords, the Minister will correct me if I am wrong, but were not parts of Sir Nicholas Lyell’s advice on the Maastricht treaty made known to the House of Commons?

My Lords, I know that the House wants to hear from the author of Article 50, and of course it should. However, whatever the subjective interpretation he may have of Article 50, it is ultimately a question of objective interpretation. Will the Minister agree with me that whatever the advice may be in respect of Article 50—if there is indeed advice—it is a matter ultimately for the European Court of Justice, and we do not know what it will decide?

This being the season of good will, I absolutely do not want to get the Minister into hot water again. Does he recall the view of the President of the European Parliament:

“If the UK wanted to stay, everybody would be in favour”?

On the legal issue of unilateral withdrawal of an Article 50 notification, does he recall the article enjoining honesty published on 9 November by his distinguished predecessor, the noble Lord, Lord Bridges of Headley, in which the noble Lord made it clear that there is “no legal basis” for the view that a notification cannot be unilaterally withdrawn? Does this perhaps explain why the Minister is so reluctant to reveal the law officers’ opinion?

I thank the noble Lord for his interesting advice. I am not aware that the opinion of the President of the European Parliament is particularly legally binding, but of course I shall read it with interest.

My Lords, the Prime Minister wrote to Cabinet colleagues recently in a letter headed “Government Transparency and Open Data”:

“The sunlight of transparency also acts in itself as an important check and balance, and helps ensure the highest standards of public life amongst elected representatives”.

Will the Government follow the advice of the Prime Minister on this matter of publishing Article 50 legal advice?

The noble Baroness will be well aware that the Government always follow the advice of the Prime Minister.

My Lords, does my noble friend not agree that this Question has been a waste of time? There is simply no doubt that the British people voted in the referendum to leave the European Union and it is their will that must be upheld, not that of a bunch of tame lawyers or other people on the Liberal Benches or anywhere else.

I was particularly fond of his “Spitting Image” puppet at the time, and I am delighted to see that he has lost none of his robustness.

The noble Lord, Lord Tebbit, talks about this being a waste of time. This morning, the new negotiating mandate came out from the European Union and it talked about a much shorter transition period than I think the Government have been thinking about. Perhaps we could ask the Minister to make sure that the negotiations take place with a little more speed than they have been doing so that we are fit to end the transition period at the end of December 2020.

Of course, we are very keen to get on with the negotiations as quickly as possible. As I understand it, the European Commission this morning proposed an implementation period of around 21 months. The Government have stated that we would prefer a period of around 24 months, so it seems to me that the positions are not too far apart, and we shall have some interesting negotiations on the subject.