May’s unconstitutional agreement is on its way to the knacker’s yard
We are in the midst of a constitutional crisis. The European issue has always been about sovereignty. It is ultimately about who governs us and how. The historic referendum vote in June 2016 delivered the democratic answer of the British people that they wished to govern themselves, through the members of their elected Parliament.
No one doubts, from whichever side of the debate they come from, that leaving the European Union after 46 years is a fundamental change in our constitutional arrangements.
However, the Prime Minister and the Government have failed to abide by the essential safeguards established by conventions of collective responsibility, the ministerial code, the Cabinet manual, and the Civil Service code, which have stood the test of time in the interests of good governance and stability within the rule of law, but are being breached.
It is clear from recent articles in The Sunday Telegraph and elsewhere that former ministers, including the former Brexit secretaries David Davis and Dominic Raab, were either “bypassed” or “hoodwinked” during this process. There are reports of ministers frequently not receiving papers until the last minute. There is Cabinet dysfunctionality over the greatest issue of our time.
The crisis extends to the breach of the requirement under the Ministerial Code by the Prime Minister to seek the law officers’ advice “in good time before the Government is committed to critical decisions involving legal considerations”.
But also, crucially, the Prime Minister’s Withdrawal Agreement is incompatible with the Withdrawal Act 2018. This act converts all EU law into British law and makes the European Communities Act 1972 null and void from March 29 2019. However, under Mrs May’s contaminated agreement, during the transitional period after Britain leaves the EU, from March 29 2019 to Dec 31 2020, a tampered version of the 1972 Act will remain in place. In other words, the 2018 Act of Parliament – the law of the land, which takes primacy over a treaty – will be scaled down and rubbished.
The consequence is that unless a new Act saves her, Mrs May’s Brexit deal becomes inconsistent with the referendum vote and illegal. And a solution to this would be that she, or more likely a future leader, could therefore walk away from it.
The likelihood of the transition period being extended, perhaps indefinitely, means the implications are even more serious.
I challenged the Prime Minister last week on this, both in the Commons and in the liaison committee. On every occasion, I have had no satisfactory replies nor answers. She appears not to appreciate the significance of the constitutional breaches. If the Attorney General was not even asked for advice as to the incompatibility of the Withdrawal Agreement and the 2018 Act, the crisis deepens.
Had Mrs May sought legal advice she must have been told that this mere treaty cannot override the repeal of the 1972 Act. This is a “manifest violation” of our fundamental constitutional arrangements because Acts of Parliament take precedence over treaty-making prerogative. Her answer, that the Government intends to pass a Withdrawal and Implementation Bill at some future date, is no answer. It is a wing and a prayer. “Manifest violations” of constitutional requirements under domestic law make treaties invalid under the Vienna Convention.
The Withdrawal Treaty/Agreement is on the way to the knacker’s yard. Anyone thinking of voting for it must take this into account.
The European scrutiny committee, which I chair, has set up an inquiry into the conduct, processes and outcomes of negotiations and we intend to do so rigorously.
‘Mrs May’s Brexit deal becomes inconsistent with the referendum vote, and illegal’
Sir Bill Cash is the Conservative MP for Stone in Staffordshire and a former shadow attorney general