Sir David Davis writes in The Sunday Times on how the Government must publish the Brexit legal advice.


As published in The Sunday Times:

Tony Blair got himself into a mess from which he never recovered concerning the legal advice he received about the Iraq War. His government refused to publish the advice in full until finally it leaked during the 2005 election campaign. When published, it revealed the doubts his attorney-general, Lord Goldsmith, had held about the legality of the war. Blair went on to win that election but his reputation — with regard to his conduct in the run-up to the Iraq conflict — never recovered.

We’ve now learnt that the current attorney-general — the straight-talking Geoffrey Cox — expressed his doubts about the prime minister’s Chequers plan to the cabinet on October 16. He is quoted in one report that said “any Northern Ireland-only arrangements for customs after Brexit could mean the province was ‘torn out of the UK’ and leave it ‘controlled by the EU’.”

The attorney-general would not have been using a rhetorical flourish. He would have been reflecting the legal advice he would have passed on to the prime minister and the cabinet. It is pretty clear there is genuine and significant concern regarding the implications of any fresh backstop text, which will be enshrined in the withdrawal agreement. How can the prime minister guarantee that the UK could not become trapped in a customs union indefinitely?

Any final Brexit deal is one of the most fundamental decisions that a government will have taken in modern times. It’s no exaggeration to say that the authority of our constitution is on the line. So we have to get this right and the government has to be transparent.

It’s now time to publish the legal advice the cabinet has received. No ifs and no buts. Blair suffered because he wriggled and prevaricated. Look at how history regards him now. I would urge the prime minister to do the right thing and publish the advice, and if she won’t, then the cabinet should exert its authority to compel her to do so.

It’s not just politically the right thing to do, it’s also morally and ethically the right thing to do. I’ve long campaigned for civil liberties and open government. Frankly the public has a right to know.

It was an unwise decision in December to accept the EU’s language on dealing with the Northern Ireland border. I said so back then and I’m still concerned now. Downing Street officials misled ministers at the time. The Democratic Unionist Party is rightly worried about the future of the union and many Conservatives are too.

We need the cards laid on the table so we can form a judgment. Is the future of the union at stake? Are we being hurtled towards a “Hotel California Brexit” where we can check out but we can never leave? Does “temporary” actually mean “eternal” when it comes to the backstop?

If so, what clearer proof could there be that Chequers is a zombie plan? Our negotiating position is so bereft we are actively considering putting at stake the constitutional future of our country.

We are told that Cox warned the cabinet that the choice was between a backstop that as currently proposed the UK couldn’t get out of, or no deal or repudiating the backstop.

If the attorney-general has warned — as has been reported — that the UK will not know when the backstop would end and compared it to being stuck in Dante’s first circle of hell, then it’s time to put an end to this nonsense once and for all.

We know there are better alternatives that the EU is prepared to offer us. Michel Barnier, the EU’s chief negotiator, and Donald Tusk, the president of the European Council, have both stated that the EU is prepared to offer the UK an unprecedented deal superior to one the EU successfully concluded with Canada.

That’s the real Brexit prize. What on earth are we waiting for, engaging in destructive traps such as a backstop we can’t get out of, a common rulebook that compels us to vassal-state status and a customs arrangement with the EU that stops us making trade deals with the rest of the world?

The attorney-general may well have offered us a route out of this nightmare. A chance to reset and start again on the basis of sound legal advice.

At the beginning of last month the prime minister trusted Cox so much he was allowed to be a popular warm-up act before her conference speech. He deservedly received plaudits for a barnstorming performance. Now he faces a different challenge.

Attorneys-general give the government independent advice — without fear or favour — on contentious legal matters. He’s provided the advice, so come on, the government must come clean and publish the detail so we can all make our minds up. Blair learnt to his cost that the truth will out. This prime minister and the government should not make the same mistake.