The Guardian view on May and par­lia­ment: a pat­tern of con­tempt

The Guardian Australia - - Opinion / The Guardian View -

The at­tor­ney gen­eral’s le­gal ad­vice on the Brexit with­drawal agree­ment, prised from a clenched gov­ern­ment fist by par­lia­ment, re­veals no de­fi­cien­cies in Theresa May’s plan that were not pre­vi­ously known. But the doc­u­ment, pub­lished to­day, does spell prob­lems out in un­com­fort­ably stark terms.

No one is sur­prised to learn that the UK would not have a power uni­lat­er­ally to dis­solve “back­stop” ar­range­ments de­signed to avoid a hard bor­der in North­ern Ire­land. That is what the back­stop al­ways meant. Still, it ag­gra­vates Brex­iter dis­plea­sure to see the gov­ern­ment’s own lawyer write that rule­tak­ing align­ment with the EU would “en­dure in­def­i­nitely un­til a su­per­sed­ing agree­ment took its place”.

The pub­lished text makes the prime min­is­ter’s task in per­suad­ing MPs to back the deal that much harder, but that was no rea­son for it to have been se­cret. There is no con­sti­tu­tional prin­ci­ple that the prime min­is­ter must be spared em­bar­rass­ment. Mrs May’s pref­er­ence that the doc­u­ment not be shared was a point of self-serv­ing po­lit­i­cal in­ter­est, not na­tional in­ter­est. But there was, in the gov­ern­ment’s re­sis­tance to pub­li­ca­tion, the ker­nel of a gen­uine dilemma. Par­lia­men­tary sovereignty can some­times col­lide with the en­ti­tle­ment of min­is­ters to re­ceive ad­vice in con­fi­dence that re­mains con­fi­den­tial.

Trans­parency makes for bet­ter gov­ern­ment, but trans­parency is not nec­es­sar­ily im­proved by a re­quire­ment to pub­lish ev­ery­thing un­der all cir­cum­stances. If min­is­ters ex­pect their ev­ery writ­ten word to be shared with the widest pos­si­ble au­di­ence, they will stop writ­ing things down. In­for­mal, un­min­uted pol­i­cy­mak­ing is not healthy for a democ­racy that ex­pects mat­ters of sig­nif­i­cance to be recorded. Those records make politi­cians more ac­count­able for their mis­takes and mis­deeds.

In this case, it was right that Mrs May’s gov­ern­ment was held in con­tempt of par­lia­ment for re­fus­ing to pub­lish that which the Com­mons had de­manded to see. It should also never have re­quired such an ex­treme mea­sure. Labour’s Hi­lary Benn ex­pressed suc­cinctly the prob­lem in the Com­mons – mat­ters had es­ca­lated, the chair of the Brexit select com­mit­tee said, as a re­sult of “gov­ern­ment’s marked re­luc­tance to lis­ten to the house, to trust the house and to share in­for­ma­tion with the house”. Last year, Mr Benn’s com­mit­tee spent months try­ing to es­tab­lish what risk as­sess­ments the gov­ern­ment had made for dif­fer­ent Brexit sce­nar­ios and then ask­ing to see them. It met de­lay and de­nial. It is worth re­call­ing that Mrs May did not ini­tially think that par­lia­ment had a role in the ac­ti­va­tion of ar­ti­cle 50 and was forced to seek Com­mons con­sent by a rul­ing of

the supreme court. The pro­vi­sion of a “mean­ing­ful” par­lia­men­tary vote on fi­nal Brexit terms also had to be forced out of a re­luc­tant Down­ing Street.

This pat­tern re­flects the closed meth­ods of a prime min­is­ter who avoids shar­ing much be­yond a tight cir­cle of ad­vis­ers. It is also a func­tion of her hav­ing no ma­jor­ity. Fear of hu­mil­i­a­tion in whipped votes led the gov­ern­ment to stop con­test­ing op­po­si­tion day de­bates, the the­ory be­ing that Labour vic­to­ries on non-bind­ing mo­tions are less sham­ing if the To­ries don’t put up a fight. That tac­tic has back­fired. This week’s de­feats ex­press more than op­po­si­tion among MPs to Mrs May’s ap­proach to Brexit. They are the cul­mi­na­tion of brew­ing anger at her sys­tem­atic dis­re­spect for the leg­is­la­ture. The con­tempt is now mu­tual, a state of af­fairs that would be dam­ag­ing to any prime min­is­ter with a ma­jor­ity. For this prime min­is­ter in a hung par­lia­ment it could be fa­tal.

Pho­to­graph: HO/AFP/Getty Im­ages

Theresa May speaks in the Com­mons on 4 De­cem­ber 2018 dur­ing the de­bate on the Brexit with­drawal agree­ment.

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