Written by Margaret Briffa | November 7, 2018
As we hopefully inch closer to a Brexit withdrawal deal a new argument has kicked off about legal advice and the access that cabinet ministers should have to it. It has caused me to reflect because as solicitors we seek Counsel’s opinion on matters which are particularly knotty to ensure that we make good decisions fully appraised of all the pros, cons and complication that any case may entail. Opinions are often costly but should be seen as a valuable investment in getting the best result. While an opinion is only ever just that, an opinion we expect Counsel to tell it to us like it is – neither overplay or underplay the risks and benefits.
The particular legal advice being argued about here has got me thinking. It concerns the border issue and the backstop that it is proposed should be put in place. In the context of Brexit, the backstop is a reference to an arrangement that will apply to the Irish border if a wider deal or technological solution cannot keep it as frictionless as it is today. The gulf between the UK and the EU has been as to whether the backstop applies to the whole of the UK or just Northern Ireland, with the UK arguing that a backstop that only applies to Northern Ireland would have the effect of splitting up the Kingdom. So, at this point it seems the negotiation is very advanced and there may be a solution. Mrs May has taken legal advice from Geoffrey Cox QC and the rest of the cabinet want to see it. This seems to be a perfectly reasonable position. Like I say if you need to take legal advice on something it means that it is not straightforward and it is the right and sensible thing to do.
A legal opinion would need to consider the not just the law but how it will be decided that the backstop is triggered and the trigger mechanism. Who decides these things and who can press the trigger? The devil is very much in the detail and if you are being asked to vote on something with such huge potential consequences for this country then you need to know the detail to be able to spot the devil.
Opposition to the disclosure of the legal advice is reported to be from Conservative MP Anna Soubry. There are two reasons – both of which are extremely concerning. The first is the claim that there is a convention not to publish legal advice so government lawyers were not put off from providing “robust” opinions. The natural meaning of this is that the Counsel giving advice does not stand by it – as it is not fit for general consumption but only by someone who agrees or wants to agree with your advice. In the context of what we know about the way this whole process has been handled and bearing in mind what is at stake, this is alarming. The second reason given by Ms Soubry is that if you are a lawyer giving advice to your client you don’t expect that to be disclosed to a wider audience. This almost beggar’s belief as a reason not to share the opinion as who is the legal advice for Mrs May, the government or the people of the United Kingdom of Great Britain and Northern Ireland.
It was 100% right to seek legal advice for the question of the backstop and it is 100% right that it be shared so everyone voting knows what they are voting for, warts an’ all. If the opinion of the particular Counsel in question here can’t be shared, you have to wonder why not.
Written by Margaret Briffa
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