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25 February 2016

Whatever happens in the referendum, there’s no going back

The questions raised by the claims about the legal backing to the deal won't go away, says Emran Mian.

By Emran Mian

It is widely reported that Michael Gove, the Justice Secretary, will be banned from seeing documents relating to the European Union – by order of Downing Street.

This follows an interview where Gove argued that the deal agreed by heads of state to reform the UK’s relationship to the EU isn’t legally binding. The implication of the “ban” is that Gove’s view is based, at least to some extent, on reading government legal advice. Inevitably this will increase interest in what the legal advice says. Perhaps the Leave campaign will begin pressing that it is published in full. If the government refuses then this will suggest to many people that Gove is correct and undermine the claims that the Prime Minister has made about the binding nature of the agreement.

In the meantime, if the BBC report is accurate then Downing Street is now seeking to manage the risk around future documents, and what Gove may say about those, by cutting off his access. This raises some very difficult issues for the Government. Even during the Coalition, all ministers saw government documents that were relevant to their responsibilities. It would be a new development for a minister to stop seeing documents that remark on EU issues even when they’re relevant to their responsibilities. It’s particularly striking that it may be the Justice Secretary who is the first to have his access removed. He is a member of the European Affairs Cabinet Committee and his department at least will continue to play a leading role in evaluating EU legislation and its impact on the UK. Nevertheless, by the same logic, all ministers backing Leave may now have their access taken away.

What this means for decision-making is that ministers backing Leave may not be able to be informed of how EU law impacts on decisions they are expected to take. In a way, this makes sense. Ministers backing Leave may want to use that information to tell the public of new ways in which national sovereignty is restricted by the EU; and how taking control is important. It’s one thing to point to past examples where EU law restricts the scope for UK politicians to do something different – and I imagine Ministers backing Leave have already gathered a stock of those – it’s another to point out how it keeps happening in real time during the referendum campaign.

Nevertheless, the concrete impact of taking this information away from ministers backing Leave may be that they can’t make the decision in question. So it may be passed to a Minister espousing the official government position of Remain. This is workable, perhaps, though it does mean that over the next few months we’re going to have not just a coalition within the government between the Remain and Leave sides but in effect a two-tier government, with ministers backing Remain enjoying much greater access and decision-making power than the others.

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The longer-term impact of this may be that putting the government back together again after the campaign, even if the vote is to Remain, becomes more difficult. ministers backing Leave will have seen their colleagues make decisions in their place for four months; and then win. They will return to their ministerial briefs to implement decisions that they perhaps don’t agree with, and lots of people will know that they weren’t the ones to make them. Will they try to undo them? Will that possibility be pre-empted in any case by many Ministers who backed Leave being reshuffled out of their jobs? And what does that do to unity and sentiment in the Conservative Party? If the vote is to Leave then issues like this no doubt slip to second-order importance but even the Remain option, after just a few days of the referendum argument having begun in earnest, no longer feels like the status quo. 

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