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Withdrawal Agreement: Legal Advice

Volume 650: debated on Thursday 29 November 2018

(Urgent Question): To ask the Chancellor of the Duchy of Lancaster and Minister for the Cabinet Office if he will make a statement on the publication of the Attorney General’s legal advice on the proposed withdrawal agreement.

The Government recognise the legitimate desire of Members on all sides of the House to understand the withdrawal agreement and its legal effect. That is why my right hon. Friend the Chancellor of the Duchy of Lancaster confirmed to the House on Tuesday 13 November that the Government will publish a full reasoned statement to set out their position on the legal effect of the withdrawal agreement. That is in addition to the material that the Government have already published, including, for example, a detailed explainer of the withdrawal agreement and a technical explanatory note on the Northern Ireland protocol. My right hon. and learned Friend the Attorney General will also make a statement to the House on Monday 3 December—the next sitting day—about the legal effect of the agreement, and he will answer questions from Members, I am sure in the fullest possible way.

Not good enough.

Mr Speaker, nobody who was present in the debate on 13 November, including the Solicitor General, could be in any doubt about what the House was asking for. During that debate I stated that

“the motion requires the publication of the final and full advice provided by the Attorney General to the Cabinet concerning the terms of any withdrawal agreement. This must be made available to all MPs. It is to be published after any withdrawal agreement is reached with the EU, but in good time to allow proper consideration before MPs are asked to vote on the deal.”—[Official Report, 13 November 2018; Vol. 649, c. 235.]

The motion was passed unanimously on those terms, and when it was passed, I made it clear that those were its terms.

It was perfectly clear to Ministers, including the Solicitor General who spoke at the end of the debate, that the House was not asking for a position paper or a summary of the Attorney General’s advice. That was the offer made from the Dispatch Box during the debate, and it was roundly rejected, as the Solicitor General knows full well. The binding motion that was passed was for nothing less than for the full and final legal advice provided by the Attorney General. It is therefore wholly unacceptable, and frankly shows contempt for this House, for Ministers, including the Prime Minister at the Dispatch Box yesterday, now to pretend that the House was asking only for partial or qualified legal advice. If the Government are not willing to comply with the order of the House, why did they and the Solicitor General not vote against the motion?

In 12 days’ time, this House will have to take the most important decision it has taken for a generation, and MPs are entitled to know the full legal consequences of the deal that the Prime Minister is asking them to support. That is why the order was made, and why it must be complied with. Throughout the Brexit process, the Government have repeatedly tried to sideline and push Parliament away. If they now intend to ignore Parliament altogether, they will get into very deep water indeed. I urge the Solicitor General to think again and to comply with the order of the House.

With the greatest respect to the right hon. and learned Gentleman, his request is wholly premature—[Interruption.]

Order. Everybody will have a chance to contribute on this most important and solemn of matters, but just as the right hon. and learned Member for Holborn and St Pancras (Keir Starmer) was heard in relative quiet, so must similar courtesy be extended to the Solicitor General. Everybody will get a chance to put his or her point of view—of that there need be no doubt.

Thank you, Mr Speaker. The Attorney General will come to the House on the next sitting day, and he will make a full statement and answer questions from hon. Members across the House. It might then be for the House to judge whether the Government have discharged their obligations consistent with the Humble Address, but not before.

My right hon. Friend makes the important point that, ultimately, the decision for this House and the motions on which it will vote are political matters, and to try to dress them up in legalese and as legal matters does not help anyone.

I commend the right hon. and learned Member for Holborn and St Pancras (Keir Starmer) on securing this urgent question. A dangerous pattern is developing here. First, the Government tried to avoid their obligations under a previous Humble Address to release their impact assessments, and on two instances, senior Conservative ex-Ministers were given guarantees by Ministers at the Dispatch Box, which they then claimed publicly had been broken. Now we see the Government trying to wriggle out of yet another binding decision of this House.

Mr Speaker, this is not the time or the place to re-run the discussion about whether it was a good idea for that motion on an Humble Address to have been passed. How ironic that the Government want to re-run a debate on something that has already been voted on—just think about that! This is not the time to discuss its merits. As has been said, if the Government did not want to comply with the instruction, they should have instructed their MPs to vote against it. The reason they did not was that they knew they would have lost the vote.

Does the Solicitor General accept the ruling of the Chair that this decision is binding on the Government? If so, when do the Government intend to comply with the instruction they have had from representatives of the sovereign citizens of these islands?

I am disappointed that the hon. Gentleman did not listen to the answer I gave. The Attorney General will be here on the next sitting day. He will make a statement and answer questions. Then the hon. Gentleman and other right hon. and hon. Members can form a judgment on whether the motion that was carried by this House has been satisfied. My argument is that the Attorney General will meet the spirit and intention of the motion passed, but preserve the important constitutional convention relating to Law Officers’ advice.

The right hon. and learned Member for Holborn and St Pancras (Keir Starmer), the shadow Secretary of State, said during his speech:

“I wanted the Government to see the good sense in putting the legal position before the House, for all the exceptional reasons that have been set out”.—[Official Report, 13 November 2018; Vol. 649, c. 194.]

Accepting that, is that not precisely what the Attorney General intends to do and will be able to do on Monday?

My hon. Friend, the Chair of the Justice Committee, is absolutely right. The right hon. and learned Member for Holborn and St Pancras (Keir Starmer) is more familiar than most with the position of the Law Officers and their role within the constitution. I would have expected him to do better.

The Solicitor General should be aware that I, and probably others in this House, have written to Mr Speaker asking whether this is a matter of contempt. I suspect we may find it easier to get 48 letters than others have found. Can the Solicitor General confirm whether the Government will fight any contempt proceedings? Has he identified who in the Government would be the subject of contempt proceedings? Does he agree that this latest snub to Parliament leaves Members of Parliament with a sneaking suspicion that when it comes to the vote on 11 December and any votes that come after, the Government may decide to play fast and loose with what is the normal procedure in this place?

The right hon. Gentleman asks me to speculate about matters that might not arise. There is no snub to Parliament. It is a wholly confected controversy that actually detracts from the real issues we should be debating and will be looking at next week.

While the Opposition may wish to play fast and loose with the national interest, does my hon. and learned Friend agree that it would be wholly irresponsible to publish material which could or would damage the national interest?

My hon. Friend is right to emphasise the national interest. It is rare for a Law Officer, in this case the Attorney General, to come to the House and make a statement of this nature. We accept that these are exceptionally important, unusual and unprecedented times. That is why he is doing it. Members will have the chance to grill him when he comes.

The Solicitor General is repeating the offer that was made during the debate on 13 November and repeating what the Prime Minister said yesterday, but that was not accepted by the House. The House unanimously adopted a binding resolution in the terms that the Opposition spokesperson has outlined, so why does the Solicitor General not listen and the Government start listening? This has been the problem all along. What is it that they have to hide?

May I assure the right hon. Gentleman that when the Attorney General comes here on Monday, he will be able to ask him questions and make sure he is properly examined on these issues? He will have that opportunity. This is not an instance where the Government seek to delay or hide; this is all about providing information at the right time ahead of the important debate that I know he will be playing an important part in.

Will my hon. and learned Friend agree that it is the role of the Government always to put the national interest at the heart of any decision?

My hon. Friend makes a simple but important point. If we start trying to subdivide the role of the Law Officers and create a rift in collective decision making, where will democratically accountable government end up?

In my experience, when someone smells a rat, it is usually a good idea to set a trap. The Solicitor General will be aware that the Prime Minister wants everybody in the House to make a sensible decision based on all the information available to us. Should we not, then, have the fullest possible legal advice in as timely a manner as possible if we are to arrive at a sensible decision?

I take the right hon. Gentleman’s question with the seriousness it deserves. That is why the Attorney General is coming here on the next sitting day before we start the five-day debate—so that hon. Members have a chance not just to question him but to digest what he says, come to a judgment and make points appropriately, either in the debate or in other proceedings that might follow.

I must confess that I remain as confused as I was on 13 November about precisely what is being requested. What differences are there between the position now and the position the Government were in when advice was provided concerning Iraq?

My hon. Friend, who is a former Government lawyer, will recall that the circumstances of the publication of the Iraq advice were dramatically different from the current circumstances. In brief, extracts from the then Attorney General’s advice were leaked to the press during the 2005 election campaign, and in those exceptional circumstances, the then Labour Government took a collective decision that the Attorney General should publish the full text. That is the only time it has happened. It was an exceptional case that I do not think sets a precedent here.

Can the Solicitor General outline the legal implications of Northern Ireland entering into a customs union—including, to all intents and purposes, a united Ireland—with no voice or vote for an indefinite period and without the mechanism of a border poll, as called for in the Belfast agreement?

I am happy to inform the hon. Gentleman that he can put that precise question to my right hon. and learned Friend on the next sitting day. If he does, I am sure he will get a full answer.

I, too, listened to the debate that afternoon and raised a number of concerns about the motion. My memory is that the shadow Secretary of State asked for full advice on the final deal and not all the advice given during the negotiations and that he actually corrected the motion from the Dispatch Box four times before it was voted on, as I pointed out in an intervention. Does the Solicitor General agree that the motion was incredibly unclear and inconsistent?

My hon. Friend’s recollection is accurate, although to be fair to the right hon. and learned Gentleman, he sought to clarify or narrow the terms of reference of his application. I simply say to her what I said in that debate, which is that the Government will provide a full and clear legal position to the House and that it will then be a matter for the House to judge whether that is sufficient.

If the Government knew they would take the position of not providing the full legal advice—and the Minister wound up that debate on 13 November—why did they not vote against the motion? [Interruption.]

Order. We cannot have people chuntering from a sedentary position, particularly when they have already spoken. We have heard the hon. Member for Chelmsford (Vicky Ford); we know what she wanted to say and we are most grateful to her for that. We do not need sedentary chuntering. It is not helpful and it is unseemly—stop it.

I am not going to speculate about votes that were held or not held. I know what the position of the House is. We are seeking to satisfy that through the appearance of the Attorney General on Monday.

I welcome the news that the Attorney General will be coming before the House on Monday, but does my hon. and learned Friend share my concern about the precedent that this may set for publishing legal advice? Where would that leave legal privilege, the cornerstone of our legal justice system?

I do not intend to repeat the remarks that I made in the debate, but as I said, there are good reasons why there is a convention for Law Officers. It is not just for the convenience of lawyers; it is for the rule of law to stay at the heart of collective Cabinet decision making. I would have thought that everybody in this House would want that.

Let me refresh the memories of Government Members, who seem to have forgotten the following words:

“any legal advice in full, including that provided by the Attorney General, on the proposed withdrawal agreement”.

My constituents are entitled to have the will of the House met so that I can read those documents. What on earth has the Solicitor General got against those words and my constituents knowing that I am doing my job?

I think the hon. Lady was reading out the words of the motion, which were not the words adopted by the right hon. and learned Member for Holborn and St Pancras (Keir Starmer). He confined himself to a particular document that he wanted to see. Those are the terms of reference that he sought, and it does nobody any good to try to go back on what he said. A statement on the Government’s legal position will be published on Monday, so it will not just be the Attorney General’s words given here orally. Right hon. and hon. Members will have something in writing as well.

Does the Solicitor General agree that if Members have important questions about the Government’s legal advice or the legal position, they will be able to find out the answers to those questions by asking the source of the Government’s legal advice—the Attorney General—in this House? Does he further agree that this is about a very important constitutional principle? If all 6,500 pieces of legal advice are published, all official advice, not just legal, will start to be published and we will have a situation in which candid advice will no longer be given. It will not be written down and, whoever is in government, we will not have proper functioning of Government.

My hon. Friend is absolutely right to say that if Law Officers, and indeed civil servants, cannot provide candid advice in an unencumbered way, the quality of decision making will deteriorate, as will its transparency. That is deleterious to good government.

But this is not normal government. This is an irrevocable vote, so given the importance of that vote, does the Solicitor General not agree that MPs are entitled to the full truth on behalf of the people they represent?

The hon. Lady will see on Monday a document setting out the Government’s legal position. She will be able to question the senior Law Officer about that and then, in the debate, she will be able to make further points if she views the information that she has received as somehow insufficient. Knowing my right hon. and learned Friend the Attorney General, he will dilate at length if he is asked to.

Does my hon. and learned Friend agree that if the information given by a lawyer to a client is to be made public in future, that information is likely to be much more caveated and cautious, and therefore less useful?

My hon. Friend is right—the information becomes useless, actually, if that is the case. There are good reasons why privilege exists, but over and above that, there are constitutional reasons why the Law Officers’ permission has to be sought if, first, the fact that advice might or might not have been given is to be disclosed, and secondly, the content of any such advice is to be disclosed.

The Government will have discharged their duty to the House not when the Attorney General makes his statement, but when they publish the full and final legal advice that the House has requested and voted for. Is that not what he should do on Monday?

I ask the hon. Gentleman to look at the document that is published, to hear the Attorney General and to come to any view that he may think is appropriate after that.

I found some of the comments of the right hon. and learned Member for Holborn and St Pancras (Keir Starmer) surprising, to say the least, given his former role as Director of Public Prosecutions. Does the Solicitor General share my concern at the precedent that the Government might be setting, by releasing legal advice in this instance, for the advice given by previous Directors of Public Prosecutions?

I am here to answer questions on behalf of the Law Officers. Although I superintend the Crown Prosecution Service, it is an independent body, and I think it would be inappropriate for me to comment on the content of any advice that it may give.

Given that the Government have already ridden roughshod over the Sewel convention in respect of the devolution settlement, what faith can we have that they will uphold its integrity on this occasion?

I am tempted to get into a debate with the hon. Gentleman about the first part of his question, which I am afraid is just wrong, but we are not riding roughshod over anyone. I have already explained what we are going to do: on the next sitting day, my right hon. and learned Friend the Attorney General will be here to answer questions.

It is easy and cheap populism to make the demands that we have heard today, but is the reality that this would undermine the ability of the Solicitor General and the Attorney General to do their job now, and the ability of all their successors to serve future Governments as well?

My hon. Friend has put it eloquently. Populism is no substitute for responsible government or responsible opposition.

I do not see how a unanimous vote in the House could ever be seen as cheap populism. The House said unambiguously that it wanted the Attorney General’s legal advice to be published in full. Given that the withdrawal agreement is looking increasingly like a burst ball, does the Solicitor General not think that ignoring the will of Parliament and hiding behind the “national interest” excuse just adds to the public perception that this is a Government descending into chaos?

Some of us actually believe in talking up our country, rather than talking it down. I am fed up with the attitude of some Members who seem to revel in the idea that the House wants to connive in chaos, as opposed to stepping up to the plate and playing its responsible democratic role. The public are looking to us to make an important decision in two weeks’ time; let us show them that we are worthy of it.

It is absolutely right that we hold the Government to account. We are doing that now, and we will do it again on Monday with the Attorney General. However, does the Solicitor General share my unease about the undermining of core principles that are accepted by the whole country, such as client confidentiality?

It is very easy, in the eye of a storm, to cast caution to the winds and throw away sensible and well worked out convention. This is not the time for us to do that.

May I express my sympathy for the Solicitor General, who has been sent out today to defend the indefensible and take one for the team? May I also say, however, that responsible government means respecting the will of the House? How on earth can the Government ask the House to support the withdrawal agreement if at the same time they show contempt for a previous major decision that the House has made?

The hon. Gentleman is a reasonable man and an honourable Member. I ask him to listen carefully to the Attorney General, to read the documents—as I know he will—and then to reach a judgment after the next sitting day, when he will hear in full the legal basis for the Government’s decision.

We know that the good negotiator never shows his hand. Does my hon. and learned Friend agree that it would not be appropriate to reveal the Government’s legal advice while we are, in essence, still at the negotiating table, securing and protecting the national interest?

My hon. Friend is right. We are in a continuing negotiation, and that is why the national interest really is at the heart of this.

The Solicitor General has a wonderful Welsh gift for words, but may I remind him of what Disraeli once said?

“A majority is always better than the best repartee.”

There was a majority—in fact, a unanimous vote in the House—in favour of a motion for a return, which is not a request for a statement but a request for information to be published with the protection of parliamentary privilege. It is the duty of the Government to publish that information following the decision of the House, but if they still do not want to do that, the Solicitor General has already said that they could do it voluntarily. The full legal advice will come out eventually, and history will not look kindly on the Government, or on any members of the Government, if they have kept from the House relevant information within that legal advice.

The hon. Gentleman is a compatriot of mine and is no stranger to the wizardry of rhetoric. He reminds me of Disraeli’s comment on Gladstone that at times he might be inebriated by the intoxication of his own verbosity— but not today. I take his point, but I will say this to him: I would be failing in my duty if I did not defend robustly the Law Officers convention. That is what I am doing today, and that is what I must continue to do.

The correct reference is

“inebriated with the exuberance of his own verbosity”,

but what I would say is that the Solicitor General is no more in a position to level that charge at the hon. Gentleman than I would be.

I am very pleased that the Attorney General is coming before the House on Monday, but while I have the utmost respect for him, ultimately his advice is just that: advice. Is not the most important thing what the Government’s interpretation and position is and what the Government are going to do?

My hon. Friend is right to remind this House—[Interruption.] I see that my right hon. Friend the Member for South Holland and The Deepings (Sir John Hayes) is with us. Perhaps I will say no more about—

Order. The right hon. Member for South Holland and The Deepings thinks that the Solicitor General’s historical recollection is correct and that mine is at fault. He might be right, but in the end it is a fairly minor point in the great scheme of things.

Hansard will come to our rescue, I have no doubt, Mr Speaker.

Going back to the important point made by my hon. Friend the Member for East Renfrewshire (Paul Masterton), in the end this is a policy decision made by the Government after looking at a range of options. This is a matter of politics, and to try and dress it up in a way that would be unhelpful, inappropriate and, frankly, misleading to the public is not how we should conduct ourselves.

The Solicitor General has been pugnacious in his responses this morning, and it makes me wonder what he has to hide. We are about to make one of the momentous decisions Parliament has ever had to make on behalf of our country; surely we should have time to consider over the weekend the legal advice that the Government got?

I can assure the hon. Gentleman that when he hears the Attorney General and reads the documents on the next sitting day, he will have ample time between then and the vote, which will not be until 11 December, to assess the information, ask more questions about it, probe the Government and come to an informed view. That is what I want him and all hon. Members to have, and that is what they are going to get.

I have the utmost respect for the Attorney General, but does the Solicitor General agree that if we went to Chancery Lane we could get another opinion that would completely contradict his own remarks?

My hon. Friend knows that the documentation—the withdrawal agreement and the future relationship document—is all out there in the ether for the public and for informed and, shall I say, less well informed commentators to make observations about. There is a plethora of opinion, some of it legal, out there, and my hon. Friend makes that point very well.

The Solicitor General referred in an earlier answer to the legal advice that was published on the Iraq war, and he said that was exceptional. I think we are currently in more exceptional times than ever before, and publishing the full legal advice for all Members of this House to see before they cast their vote on a decision that is going to affect generations to come is absolutely vital.

The hon. Lady makes a proper point, but there is another important distinction to be drawn between today’s scenario and the Iraq war. With regard to the Iraq war, a decision was made by Government as to whether or not to use armed force in another country. The legality or otherwise of that decision was clearly a material and key issue as to whether or not an action should be taken. This is now a different set of circumstances: a Government taking a policy decision based on a range of outcomes, with potential risks and outcomes that would result. It is wholly different. I do not think, with respect to the hon. Lady, that the precedent of Iraq is appropriate.

I draw the House’s attention to my entry in the Register of Members’ Financial Interests. Is not maintaining the principle of legal privilege also essential to maintaining the confidence of every citizen in this country who seeks advice from a lawyer that they can expect the justice for which this country is globally renowned?

My hon. Friend, as a lawyer, knows that all too well. I have already explained the double importance of professional privilege and the constitutional centrality of the Law Officers’ convention.

This is commonly described as the most important decision that this House has made since the second world war. The Government refuse to publish the legal advice despite Parliament agreeing that they should do so, and they refuse to publish the economic analysis despite previously agreeing to do so. This is a blindfold Brexit with no clarity for our economy, our agriculture or our working rights. Does the Minister seriously expect us to vote for it blindfold?

I can assure the hon. Lady that she will not be voting for it blindfold. Whatever her final decision might be, she will be in a position, come the vote, to have heard the Attorney General, to have read the Government’s position and to fully understand and appreciate the issues at stake. I know that she will do all that and make her decision.

Despite the Welsh origins of the Solicitor General, does he agree that there is no wizardry in legal advice, that it is simply the accumulation of the collected knowledge of our culture, history and agreed norms, and that in many ways we can read all that in the press that we are seeing every day? We may seek legal advice in this place, but I have been given tons for free by every lawyer in the country, as far as I can tell. Does he therefore agree that the Attorney General’s advice is relevant, but not essential?

Instead of expressing faux outrage from the Dispatch Box, the Solicitor General could have shown some backbone and voted against the motion. We have had more than two years of the UK Government telling us that no deal is better than a bad deal, but now suddenly the deal that is on the table is the only show in town and we are being told that no deal would be an unmitigated disaster. Given the Government’s ineptitude over this entire process, how are we supposed to believe their position statement on impartial legal advice?

The hon. Gentleman talks about backbone. It is time for him and his colleagues to show some backbone and to back a deal that serves the interests of Scotland, Northern Ireland and the rest of the United Kingdom in a way that could not be achieved by any other Prime Minister.

For the avoidance of doubt, will my hon. and learned Friend advise the House on what the role of the Attorney General is in advising the Government and this House?

As I think most hon. and right hon. Members know, the role of the Attorney General is to be the Government’s chief legal adviser. He has a role in advising the Cabinet. He is not a member of the Cabinet but he attends Cabinet. The advice that might or might not be given can assist in collective Cabinet decision making. He is the lawyer, and his client is the Government. That lawyer-client relationship allows for the lawyer to provide impartial and proper legal advice, unencumbered by political considerations. That is why the convention exists. That is why it must be maintained.

The Solicitor General was in post at the time and will know the answer to this question. Did the Prime Minister ask the opinion of the Attorney General, as laid down under the clear requirements of the ministerial code, which insists that, in respect of critical legal considerations, all Ministers must ask the opinion of the Attorney General “in good time” before the considerations are implemented by the Cabinet? I ask that both in respect of the Chequers proposals on 6 July, when the Cabinet was clearly bounced, and in respect of the incompatibility of the withdrawal agreement with the withdrawal Act and the express repeal of the European Communities Act 1972, before the signature of the withdrawal agreement over the weekend?

My hon. Friend will know the answer that I must give, which is that the convention applies. I can neither confirm nor deny the position with regard to the Attorney General as to the issue that he raises.

I hope that the Solicitor General is correct in his interpretation of the Humble Address motion and the Government’s response to it, but if he is wrong, the House might well bring proceedings of contempt against the Government, which is the most serious charge that the House can bring. When was the last time that a Government were held to be in contempt of the House of Commons?

I am not going to start speculating in reply to my hon. Friend’s question. It would not be right of me; this is a matter for Parliament. I would like to think that people understand that my respect and support for this place know no equal.

Can my hon. and learned Friend confirm that, as every lawyer knows, advice depends on the quality of the questions sought? Can he therefore assure us that he or our right hon. and learned Friend the Attorney General will set out on Monday all the questions in respect of which advice has been given to the Government, so that we can be sure that all the right questions have been asked?

My hon. Friend knows our right hon. and learned Friend the Attorney General, and I can assure him that in response to any question he asks, he will get the most comprehensive of answers, for free.