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It's no wonder May doesn't want to disclose Brexit advice

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10.11.2018

IT’S a strange thing, advice. All the evidence suggests that most people don’t want it, or want it only so that they can ignore it. In politics, however, everybody always wants to see any advice that has been offered. That’s presumably because they’re so ready to offer their own, which is invariably that the other side have got it wrong, and everybody would be better off voting for their party.

For their part, people who have sought advice usually seem reluctant to let anyone else see it, which immediately leads to the suspicion that they’ve ignored it, or that it’s warned them that their new favourite idea is a damn stupid one. It may be some such suspicion which makes a lot of people, including the Cabinet, the DUP, the Labour Party and the mutinous European Research Group, keen to see the advice the Attorney-General has given Theresa May on the Brexit agreement that – we are assured – will be sorted out any minute now.

Perhaps there is some dim awareness in everyone’s minds that the word derives from a Latin phrase which means “according to what is seen”. Even so, there are a number of reasons why governments may not want to publish advice they’ve been given.

Not all of these redound to their credit. (Does anything except credit redound?) Take, for example, Alex Salmond’s administration spending £19,452 and 92p fighting a freedom of information request to see the legal advice that suggested that an independent Scotland would remain in the EU. It turned out that the reason he was keen no one should see this advice, to which he’d alluded in several interviews, was that there wasn’t any.

Another less than convincing example was Lord Goldsmith’s advice to Tony Blair’s Government on the legality of the Iraq War – which was eventually published in 2005. In that case, the then attorney-general had concluded that the war was legal.

For those who think the invasion of Iraq wasn’t legal, his reasoning had nothing to do with misleading intelligence briefings or claims about Iraq’s chemical weapons, but was that UN resolution 1441 reasserted resolution 678, which had authorised war if Saddam Hussein breached a ceasefire, which he did. But that’s by the by.

He also pointed out, which may be why Mr Blair was reluctant to make the advice public, that a court might not find that a good enough argument. That’s a further difficulty of legal advice: there are at least two sides in most disputes, and both usually have at least superficially presentable arguments.

Even worse, from the Blair Government’s point of view, was Lord Goldsmith’s specific advice that what he thought would probably hold up for making the war legal certainly wouldn’t be regarded by a court as sufficient justification for a war that had regime change as its objective.

The frankness of Lord Goldsmith’s document does offer an indication of the one really good reason that a government may have for not routinely disseminating advice it receives.........

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