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04th December 2018

BREXIT – What’s in an Opinion?

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The legal advice given to the Government on the ‘Withdrawal Agreement’ is the latest Brexit battleground, but what of its significance? It will not come as a surprise to anyone that Mrs May had to seek out the authoritative views of her lawyer - her Attorney-General - the eminent Geoffrey Cox QC MP on the draft Withdrawal Agreement – the most significant legal treaty for the UK in generations. It is very much what you would want and expect her to do. Quite right too that such legal opinions conventionally enjoy the privilege of confidentiality (much as advice we give our clients is protected). It aids efficient delivery of policy that the Government should not have to disclose the legal advice it receives at every turn. All this is comprehensible and well understood.

In my view, there are moments however when the legal advice to Government does need to see the light of day, to ensure that debate in the Houses of our Legislature can be properly informed. It can also serve to reinforce confidence in our representative Parliamentary democracy. So, on 3 December, ahead of the ‘meaningful vote’ and following Parliament’s demands for a copy of Mr Cox’s advice, the Government has issued a note of ‘The Legal Position of the Withdrawal Agreement’, taking readers through the Agreement; providing an explanation of its terms. Please click here for the position paper.

The Government’s opponents are not satisfied with this summation however. Let’s see the full advice, not the sanitised, managed edition - the whole shebang – they say. There is of course an entirely reasonable constitutional curiosity here; wanting to see legal advice that has shaped the Government’s policy on the tricky questions of the day, the centrally important moments in the unfolding story of the UK. “We must see the advice!” is the clarion call. Echoes of the fight for the Iraq war legal advice are prayed in aid of the case for disclosure. A political battleground is set.

Let us be clear however, the Opposition’s purpose is archly political. The draft Withdrawal Agreement is published. It is there for all to see (this is not an Iraq war moment of hidden evidence). Parliamentarians are perfectly able to call on outstanding constitutional lawyers from the ranks of the UK’s legal profession for authoritative legal opinions on the meaning and implications of the draft Withdrawal Agreement, indeed from amongst their own number in the House of Lords. No, the purpose of the Opposition’s call for a ‘full reveal’ here, is to unmask what contradictions they can between the legal advice received by the Government and the Prime Minister’s advocacy for her deal. This is about credibility.

The stakes are high.

Dominic Hopkins is head of Disputes and Litigation at Hewitsons and an Associate Member of the UK Constitutional Law Association. For more information please contact Dominic Hopkins on 01604 233233 or click here to email Dominic.

The views and opinions expressed in this article are those of the author and do not necessarily reflect the official policy or position of the firm.