May’s un­con­sti­tu­tional agree­ment is on its way to the knacker’s yard

The Sunday Telegraph - - Brexit Turmoil - By Sir Bill Cash

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

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