No Lawyer Can Solve This Brexit Political Problem

(Bloomberg Opinion) -- It’s not enough that Britain faces a debilitating and destabilizing political conflict in Brexit. The government's refusal to publish the full legal advice it has been given about its proposed exit deal threatens to turn it into a constitutional crisis.

The government faces an emergency debate on Tuesday over whether it is in contempt of parliament, a motion it is at risk of losing. Neither side in this arcane debate has done itself, or the British public, any favors. Ultimately, this is one train-wreck U.K. Prime Minister Theresa May can avert and should. Whatever the details of the advice from the government's top lawyer, the decision before MPs is predominantly political, not legal.

To be clear, those calling for the government to publish Attorney General Geoffrey Cox's advice in full are mostly lawmakers who have already decided to vote against the divorce deal. They suspect that the 43-page summary released on Monday omits a key part of Cox's counsel that provides legal cover for their decision to reject the deal.

The argument is transparently self-righteous – but also self-serving. As anyone who has had paid for legal advice knows, the client is told the risks and potential pitfalls, but not how to manage them. These are, to use Bank of England Governor Mark Carney's words from a different context, scenarios, not forecasts. Lawmakers are right to want to see the advice, but let's be clear that the motive is to weaponize it.

Even so, the government's case for withholding the opinion is flimsy; it substitutes an appeal to convention for principled argument. Government legal advice is privileged to protect the state in cases where it must defend itself in litigation. When parliament is faced with the biggest decision for a generation, there is no good reason that it shouldn't be privy to the same advice ministers received before they recommended the deal. Even former Attorney General Peter Goldsmith, whose advice to Tony Blair about the legality of the Iraq war was withheld from parliament, says the Cox advice should be published.

The summary of the advice published by the government didn't provide the clear direction many were hoping for. It failed to satisfy the concerns of those who fear the deal sacrifices too much control for too little Brexit.

Opposition to the deal has largely centered on the U.K.'s open-ended commitment to remaining in a customs union with the European Union if the bloc doesn't agree that an alternative arrangement will satisfy the demands for maintaining an open border between Northern Ireland and the Republic of Ireland. The big point of contention, though far from the only one, is that the U.K. cannot unilaterally withdraw from this backstop; only the EU has a veto.

Cox offers some succor for the government. Article 50, which triggered the U.K.'s exit negotiations, he says, “can take account of the framework for the future relationship but cannot itself include or constitute that relationship.” In other words, to those who say the backstop will be a forever thing, he suggests that Article 50 doesn't allow it.

That won't cut it for many skeptics. And Cox isn't the only lawyer with a view on the deal. Lawyer Martin Howe poured scorn on the agreement in an article in the Spectator magazine: “It is the system imposed on the former Soviet republics of Moldova, Georgia and Ukraine in their EU association agreements.”

For some MPs, the backstop issue is one of many intolerables. They want a guarantee that the divorce payment – some 39 billion pounds ($50 billion) – will be conditioned on the EU concluding a wide-ranging trade agreement with the U.K. But the deal doesn't quite say that. Instead, as Olly Robbins, the government's negotiator, pointed out to a parliamentary panel on Monday, it says that both sides are determined to make that happen. Not quite the conditionality MPs are seeking.

Another legal brain, George Peretz, has argued that the transition period could fall foul of the European Convention on Human Rights, which holds that people must have a democratic say over the laws that govern them. In that adjustment phase, Britain would be subject to EU laws, but would have no say over them.

There are plenty of legal questions the agreement leaves open, as researchers Sam Lowe of the Center for European Reform and Alex Stojanovic of the Institute for Government note. What happens if the U.K. unilaterally diverges from EU tariffs if the backstop has been triggered? Could the EU impose retaliatory tariffs on the U.K., or on goods coming from Great Britain into Northern Ireland?

None of these questions are likely to be answered by the Cox advice, but ministers should just publish it anyhow, as parliament has demanded. To withhold it succeeds only in causing some to question the legitimacy of the Dec. 11 vote on the Withdrawal Agreement. At a time when government is held in particularly low-regard, that's doesn't exactly build confidence.

Most international agreements and treaties are open to some interpretation and rely to varying degrees on the goodwill and intentions of the contracting parties. The Brexit Withdrawal Agreement is more complex than most; it leaves a great deal more to the good will of the EU than any U.K. politician will be comfortable with. Cox told parliament that he wrestled with the trade-offs and decided it was “a risk worth taking.” That's probably the clearest legal advice lawmakers will get.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

Therese Raphael writes editorials on European politics and economics for Bloomberg Opinion. She was editorial page editor of the Wall Street Journal Europe.

©2018 Bloomberg L.P.

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