Theresa May faces a bitter test of strength with MPs today as they mount an historic bid to force release of legal advice on her Brexit deal.
The House of Commons will vote on a contempt motion that could plunge the PM’s government further into chaos.
The showdown comes after Attorney General Geoffrey Cox again dismissed demands to publish his private legal opinion to the Cabinet – and effectively dared MPs to suspend him.
In extraordinary scenes in the chamber last night, Speaker John Bercow agreed there was an ‘arguable case that a contempt has been committed’ after Tory Eurosceptics, Labour, the DUP, the SNP and Lib Dems joined forces.
The MPs complained that the summary legal advice released by Attorney General Geoffrey Cox did not comply with a Commons resolution agreed last month.
The constitutional clash between the House and the government is thought to be unprecedented in modern times.
Ministers insist legal confidentiality is an important point of principle and revealing the material would hurt the national interest. Instead they published a 40-plus page assessment of the package thrashed out with Brussels.
But if the motion is passed today, the pressure to issue the full advice could become unbearable.
Attorney General Geoffrey Cox (pictured in the Commons last night) admitted the UK cannot unilaterally exit the Irish border backstop – prompting claim the Brexit divorce is a ‘trap’
John Bercow (pictured in the Commons last night) made the comments in response to demands from Labour, the DUP and four other opposition parties
Labour, Liberal Democrat, SNP, DUP, Plaid and Green politicians wrote to the Speaker (pictured) calling for the start of proceedings for contempt
Mr Cox, who is the Government’s chief legal adviser, had staunchly defended the decision to withhold the advice in a marathon appearance in the House – telling MPs ‘there is nothing to see here’.
The Speaker however, in a statement to the Commons, said he was ‘satisfied’ the matter should be put before MPs to consider today.
He said: ‘The letter that I received from the members mentioned at the start of this statement asks me to give precedence to a motion relating to privilege in relation to the failure of ministers to comply with the terms of the resolution of the House of the 13 November.’
Mr Bercow stopped his statement to scold Government chief whip Julian Smith, who was talking to ministers on the frontbench, saying: ‘It would seem courteous if he could just hold off for a moment and allow me to make the statement that would appear to show perhaps a proper politeness.’
How does the Commons contempt process work?
Under Commons rules, the Speaker decides whether to allow a contempt motion to go before the House.
If he does and the vote is carried, MPs could table another motion to impose a punishment, potentially suspension from the House.
Alternatively the issue could be referred to the Committee of Privileges for detailed consideration.
The committee would then recommend a suitable sanction for the Commons to sign off.
That is likely to take considerably longer than the week available before MPs vote on the PM’s Brexit deal.
In theory, the most severe penalty is expulsion from the House, although the prospects of that happening would appear remote.
There were only three expulsions in the 20th Century, with the last one in 1954. Two of them involved serious criminal convictions, and the third was for lying to a committee and allegedly taking bribes.
However any finding against the Government would be potentially highly damaging for Mrs May at a time when she is at her most vulnerable politically.
He added: ‘I have considered the matter carefully and I am satisfied that there is an arguable case that a contempt has been committed.
‘I’m therefore giving precedence for a motion to be tabled tonight before the House rises and to be taken as first business tomorrow.’
Mr Bercow said it was ‘entirely for the House to decide on that motion’.
The Attorney General earlier said that he ‘fully accepts’ MPs may impose a sanction against him or the Government for contempt of Parliament over Brexit legal advice.
He said: ‘The House has at its disposal the means by which to enforce its will.
‘It can bring a motion of contempt and seek to have that motion passed and seek to impose through the committee, or whichever way it is appropriately done, to impose a sanction. I fully accept that.
‘I don’t set myself up contrary to the House, I simply say that I cannot compromise the public interest.’
Mr Cox had asked MPs to suppose the advice included details on relationships with foreign states and arguments that might be deployed in the future, noting: ‘Would it be right for the Attorney General, regardless of the harm to the public interest, to divulge his opinion.
‘I say it wouldn’t.’
Mr Cox said it would be difficult to ensure information would be redacted, adding: ‘I cannot take a step that I firmly and truly believe would be contrary to the public interest’.
He went on: ‘I ask the House to understand that it is only that consideration that is motivating me and this Government in declining at this stage to break the convention that applies to both sides of the House when they are in government.
‘There is nothing to see here.’
Shadow Brexit secretary Sir Keir Starmer (seen on Sky News’ Sophie Ridge on Sunday) said Attorney General Geoffrey Cox had failed to follow the orders of Parliament to publish his full legal advice
The PM (pictured in the Commons yesterday) fought to limit the information disclosed about the legal advice from Attorney General Geoffrey Cox
Boris Johnson has joined condemnation of the refusal, saying it was a ‘scandal’ and pointing out that Mrs May previously called for advice on the Iraq War to be released
In his statement to MPs, Mr Cox insisted the backstop part of the divorce was ‘expressly agreed not to be intended to establish a permanent relationship but to be temporary’.
He said the Article 50 process did not provide a legal basis for a permanent arrangement.
But ‘if the protocol were to come into force, it would continue to apply in international law unless and until it was superseded by the intended subsequent agreement’ which met the goals of avoiding a hard border and protecting the Good Friday Agreement.
‘There is therefore no unilateral right for either party to terminate this arrangement.
‘This means that if no superseding agreement can be reached within the implementation period, the protocol would be activated and in international law would subsist, even if negotiations had broken down.
‘How likely that is to happen is a political question, to which the answer will no doubt depend partly on the extent to which it is in either party’s interests to remain indefinitely within its arrangements.’
The legal paper gives a more detailed explanation of the ‘best endeavours’ provision in the Withdrawal Agreement. The deal sets out that if the backstop were to come into force, there will be a review process for the UK to break out.
The summary argues that the ‘obligation to negotiate in good faith with a view to concluding agreements is a well-recognised concept in international law’.
‘Relevant precedents indicate that such obligations require the parties to conduct negotiations in a meaningful way, contemplate modifications to their respective positions and pay reasonable regard to each other’s interests,’ it says.
But the document adds: ‘A tribunal would only find a breach of the duty of good faith if there was a clear basis for doing so.’
Earlier yesterday, Mrs May’s chief Brexit adviser told MPs that the Northern Ireland border backstop was a ‘slightly uncomfortable necessity’ for both the UK and the European Union.
The fallback plan agreed with Brussels was ‘not the future relationship that either the UK or the EU wants to have with one another’, Olly Robbins told the Exiting the European Union Committee.
What is in the summary of legal advice on the Brexit deal?
- The Northern Ireland backstop lasts indefinitely ‘unless and until it is superseded’ by ‘alternative arrangements’.
- Agreement on ‘alternative arrangements’ to avoid a hard border is only possible by joint UK-EU agreement.
- With no agreement, the UK must be able to show ‘clear evidence’ the EU is failing to negotiate in good faith to get a ruling in its favour.
- The UK cannot unilaterally terminate the divorce treaty.
- If transition is extended, the UK will have to pay an ‘appropriate’ amount more into the EU budget. This could run to billions.
- During the transition period, the EU can choose to exclude the UK from ‘security-related sensitive information’ .
- During the transition period, the UK must accept all new EU laws with no say on writing them.
He said: ‘It is an uncomfortable position for both sides and the reality … is that there is not a withdrawal agreement without a backstop.
‘That reflects also, as I’ve said to this committee before, ministers’ commitments to Northern Ireland and to avoid a hard border on the island of Ireland, rather than being something imposed upon us.
‘So, it is a necessity and a slightly uncomfortable necessity for both sides.’
Asked if the Government had drafted a clause for the Withdrawal Agreement which would have allowed the UK to opt out of the backstop unilaterally, Mr Robbins said: ‘Ministers asked us to look at a whole range of options for how to bring the backstop to an end, and so we did.
‘And the Prime Minister and other ministers tested some of those out on European partners.
‘But, what we went into the negotiation with in the end was a text that delivered the termination clause very much as it is laid out there.’
The UK faces making additional payments to Brussels if the Brexit implementation period is extended, the Government’s Brexit legal advice also said.
Under the terms of the Withdrawal Agreement, it is due to run until the end of December 2020 but can be extended by up to two years if both sides agree.
The advice says that discussions on any extension would involve ‘reaching further agreement on the UK’s financial contribution’.
Labour’s Chris Bryant, a supporter of the People’s Vote campaign for a second referendum, attacked the paper’s release when MPs had demanded to see the full legal advice given to ministers by Mr Cox.
He said: ‘The House of Commons was very clear that the full legal advice to the Cabinet should be supplied to Members of Parliament.
‘The refusal of the Government to comply sends a very clear message about the Brexit deal – that it is bad for Britain, satisfies nobody and will weaken our economy and our voice in the world.’
Meanwhile, demands for a second referendum are mounting after the dramatic resignation of universities minister Sam Gyimah over the weekend.
Senior Labour figures including shadow Brexit secretary Sir Keir Starmer and deputy leader Tom Watson are thought to be ramping up pressure on Jeremy Corbyn to back a fresh national ballot.
Environment Secretary Michael Gove admitted over the weekend that a referendum was a potential outcome if Mrs May loses, but said it would ‘rip the social fabric of the country’. He also insisted Leave would win by a bigger margin than in 2016.
Sir Keir and the DUP’s Westminster leader Nigel Dodds (pictured) could sign a letter asking the Speaker to allow a motion ‘that the Government has held Parliament in contempt’
Commons legal assessment highlights doubt on ‘backstop’
House of Commons lawyers have raised fresh questions about the Irish border backstop in Theresa May’s Brexit deal.
An internal assessment by the House’s EU legislation team highlights that the customs arrangements would be a ‘practical barrier to the UK entering separate trade agreements on goods with third countries’.
It also suggests the Joint Committee to arbitrate over the Withdrawal Agreement could put Britain at a ‘practical disadvantage’.
‘If the Joint Committee is unable to reach a decision, in some circumstances, that will block next steps,’ the note says.
‘The party that wants those next steps to occur, will then be at a practical disadvantage.
‘By way of example, i) the Joint Committee sets the limits of state aid that can be authorised by the UK for agriculture. If limits are not agreed, state aid may not be authorised.’
Downing Street has acknowledged that the backstop would hamper trade deals on goods, but argues that the EU would also be unhappy to keep the arrangements indefinitely.
The PM’s aides insist the country would still be able to do deals on services.
Ministers chose not to oppose the motion – tabled by Labour under an arcane procedure known as the humble address – as they feared a damaging Commons defeat.
Mr Cox is said to have warned the UK could be tied to the EU customs union ‘indefinitely’ through the Northern Ireland ‘backstop’.
The Sunday Times said in a letter sent last month to Cabinet ministers, he advised the only way out of the backstop – designed to prevent the return of a hard border with the Republic – once it was invoked was to sign a new trade deal, a process which could take years.
‘The protocol would endure indefinitely,’ he apparently wrote.
The letter was said to be so sensitive that ministers were given numbered copies to read which they were not allowed to take from the room afterwards.
Former Brexit secretary Dominic Raab – who quit last month over the withdrawal agreement – said the legal position was clear.
‘The backstop will last indefinitely until it is superseded by the treaty setting out our future relationship, unless the EU allows us to exit,’ he told The Sunday Times.
‘The EU has a clear veto, even if the future negotiations stretch on for many years, or even if they break down and there is no realistic likelihood of us reaching agreement.
‘That’s my view as a former international lawyer, but it is consistent if not identical with all of the formal advice I received.’