House of Commons
Tuesday 4 December 2018
The House met at half-past Eleven o’clock
[Mr Speaker in the Chair]
Oral Answers to Questions
Foreign and Commonwealth Office
The Secretary of State was asked—
Leaving the EU: Diplomatic Co-operation
I have recently discussed post-Brexit diplomatic co-operation with my French, German, Belgian and Norwegian counterparts, and I am confident that it will continue post Brexit.
When the Cabinet met to discuss the Prime Minister’s deal, the Foreign Secretary said that it risked leaving the UK in what he called the “Turkey trap”, and that the backstop could in fact become an indefinite “frontstop”. Given those entirely valid concerns, will he explain why he is backing this terrible deal?
I do not comment on confidential Cabinet discussions, except to say that I started my comments at that meeting by saying that this is a time when all of us owe our loyalty to the Prime Minister, who has an extremely challenging job. And like many Members of this House, I am looking forward to a delicious roast turkey for Christmas.
It is not a coincidence that Russia has chosen this opportunity to take further military action against Ukraine and to continue to stir up trouble. Why does the Foreign Secretary think that so many former diplomats and others are totally opposed to the deal that the Government are putting forward on Brexit? Is it because it will undermine our diplomatic capacity in the world and our ability to stand up to those who would seek to divide and undermine Europe and this country’s national interests?
On the contrary, I think this deal allows us to project ourselves with confidence and strength across the world. I have had conversations with the Ukrainian Foreign Minister, who is grateful for the staunch support that the UK has given his country in this challenging situation. It is fair to say that the UK has been one of the leading voices, if not the leading voice, among EU countries on foreign policy issues such as this, and I am confident that we will continue to do that.
When he spoke to Andrew Marr last weekend, the Foreign Secretary said that the Prime Minister’s proposed deal
“mitigates most of the negative impacts”
of leaving the EU. Can he tell us which of the negative impacts of leaving the EU the deal does not mitigate?
That is a very clever partial quotation. What I said was that this deal gets us most of what people voted for, and that it can be a staging post to getting everything that we voted for. That is why I shall be supporting the deal.
Both the United Kingdom and France have permanent seats on the United Nations Security Council. We get to keep our seat after Brexit, but there is growing pressure by the European Union to take over France’s seat. What is the Foreign Secretary’s view on that?
With the greatest of respect to my hon. Friend, I think that is a matter for France. In my short time in this job, I have noticed that it is very difficult to get a consensus across the European Union to take common positions. We sometimes succeed and we sometimes do not. It is much easier to get the French to take a strong position, even though sometimes we do not agree with that, either.
As we are talking about British-European co-operation on diplomatic matters, I wonder whether my right hon. Friend could talk about the events that we are seeing in Ukraine and the importance of working together to reinforce a country that is under severe threat and suffering severe abuse by a neighbour. It really does need the help of our institutions, both UK and European, to ensure that it is able to stand up to such aggression.
I am pleased that my hon. Friend has raised this issue. He is absolutely right to say that, on an issue such as Ukraine, we have to stand four-square with our European friends, and we have indeed been doing so. We have extensive discussions about taking a common position with them, and I am pleased to say that there is unity not only among the European nations but with the United States that what Russia did is totally and utterly unacceptable. It is against international law and we do not condone it—we condemn it.
Will the Foreign Secretary confirm that he made it clear in his discussions that, while we are leaving the European Union, we are not leaving Europe, and that we will continue to work through NATO and the many other international forums to ensure the peace and security of the whole continent?
My hon. Friend is absolutely right. It is important not to underestimate the influence that we have. We are a member of the G7, the G20, the OECD and the Organisation for Security and Co-operation in Europe. We are a member of 60 international organisations. With the EU, we have built up a huge amount of trust and common ground over recent years, which is why I am confident that it is in both sides’ interests that that continues.
Climate change is the biggest challenge that we face, and one that we should perhaps spend more time discussing in this Chamber. Being able to take a common position with our EU partners on this has been an incredibly powerful diplomatic tool for pushing that message forward. I am sure that the Foreign Secretary will join me in welcoming the fact that the First Minister is in Poland—where Scotland’s actions have been hailed internationally—to push that message as well. How will we continue to work with our EU partners to push that important diplomatic message?
My right hon. Friend the Minister for Asia and the Pacific will be in Poland on Friday and Saturday for further discussions on such issues. This issue does not respect any national boundaries and can be solved only by countries across the world working together. We have a strong common position with other European countries and that will continue.
I thank the Foreign Secretary for his response. There is a concern that the UK is being left isolated in terms of Brexit and the broken relationship. In maintaining that common position as we go forward, will he commit to working as closely as we have done with our European partners? Additionally, in terms of our international ambitions, can Scotland help to act as a bridge between the UK and the rest of the EU?
The best bridge Scotland could be is by not creating a wall between Scotland and England and not trying to become independent. If we act as one voice, as a United Kingdom, we will be a more powerful voice abroad. We have had an independent foreign policy during our whole time as a member of the EU. That is not going to change, but we have found that it is incredibly effective to work closely with our European neighbours and friends on a whole range of issues, and that is also not going to change.
I thank my hon. Friend for that excellent question. In fact, I raised that issue when I was in Tehran on 19 November. It is essential that we give full support to media freedom in all parts of the world. We have a lot of common ground on that with other European countries that share concerns about the recent deterioration in the situation.
Only a month ago, the Foreign Secretary was one of eight Cabinet Ministers who said that they could not decide whether to back any Brexit deal unless they had seen the full, unedited legal advice given to the Prime Minister, saying that they could not repeat the failures of the Iraq war and rely only on an edited summary. The Foreign Secretary was right to take that entirely sensible and rational position just four weeks ago, so why should the same principle not apply to the whole of Parliament?
For the same reason that the previous Labour Government did not publish all the legal advice that they received: it would make the practice of Government totally and utterly impossible. I am delighted that the right hon. Lady has come in on this question, because she said on TV on Friday:
“I like the idea of us remaining in the EU.”
On this side of the House, however, we rather like the idea of implementing the will of the British people in a referendum.
I am unsure why the hon. Gentleman thinks that any of that is going to change, because the political declaration could not have been stronger in the commitments made to continue diplomatic co-operation between the UK and the EU. That is one of the first issues that European Foreign Ministers have raised in every single discussion that I have had with them, and there is total and complete unanimity.
No, it is not. We strongly support the JCPOA, but we strongly condemn missile activity by Iran in the region, because it is extremely destabilising. Military activities in Yemen, Lebanon, Syria and Iraq are causing enormous problems for many people in the region, and we will not settle the issues in the middle east unless Iran starts to change its approach and act peacefully towards its neighbours.
Our policy on the death penalty has not changed, and we continue to raise human rights issues with the Kingdom of Saudi Arabia and other countries.
I am sure that the Foreign Secretary is aware that my right hon. Friend the Member for Twickenham (Sir Vince Cable) yesterday asked the Prime Minister whether she would make an appeal for clemency on behalf of the 12 men who currently face imminent execution. Is the Foreign Secretary or the Prime Minister willing to do that?
We continue to make representations on all cases of the death penalty in Saudi Arabia, and I will look carefully into the case the right hon. Gentleman raises. I have to be direct with him and say that, because it is connected to sharia law, we think it unlikely that Saudi Arabia will change its policy on the death penalty, so most of the interventions we make tend to be in cases where a juvenile has committed the offence, or where we do not think the offence is egregious and where we think we will have the best chance of success.
The Government would have us believe that our close ties with Saudi Arabia have led to the regime behaving more humanely. Given that almost 100 Yemeni children were recently killed by Saudi airstrikes, and given the brutal murder of Jamal Khashoggi, there is very little evidence to back up that claim, so can the Foreign Secretary point to the evidence that the UK is making the Saudi regime more humane and more responsible?
Perhaps this simple fact: yesterday, 50 Houthi rebels were airlifted to Oman, which was the essential precondition for peace talks starting in Stockholm, and they may start tomorrow or on Friday.
Last month, the United States imposed Magnitsky sanctions on 17 individuals accused of involvement in the murder of Jamal Khashoggi. Many of them now face the death penalty in Saudi Arabia. Of course I would not ask the Foreign Secretary to comment on any individual cases, but can he simply tell us how many of those 17 individuals accompanied Crown Prince Salman on his visit to the UK in April?
The Home Office is doing a lot of work on what happened with all those 17 individuals, and there have been media reports that some of them did accompany the Crown Prince when he came to the UK. We want justice in the case of Khashoggi. It is an appalling case, and the Prime Minister made that clear to the Crown Prince when she met him in Buenos Aires. We have made it clear in my private meetings, too.
Sino-British Joint Declaration: Rule of Law
The rule of law and the independence of the judiciary are the foundations of Hong Kong’s continued success and prosperity. The UK remains absolutely committed to the joint declaration and to upholding “one country, two systems.” I raised the concerns about the erosion of the rule of law when I visited Hong Kong only last month, and we will continue to monitor that situation closely, as detailed in the Foreign Secretary’s six-monthly reports to Parliament.
I thank the Minister for that answer. Recent events in Hong Kong have seen the movement restricted of those critical of the Hong Kong Government, including political opponents and journalists. What steps are the UK Government taking to protect British interests in Hong Kong and the rights of British national (overseas) passport holders?
I reassure my hon. Friend that we take very seriously our long-standing and ongoing duty to uphold the joint declaration. We have raised publicly our concerns about the decision, for example, not to renew the visa of Victor Mallet, of the Financial Times, and the subsequent denial of his re-entry into Hong Kong, as well as other developments. These call into question Hong Kong’s high degree of autonomy. We have also made it clear in private to the Chinese and Hong Kong Governments that it is vital that Hong Kong’s rights, freedoms and high degree of autonomy, which are set out in the joint declaration, are fully respected.
What will the Foreign Office do if the Government in China continue not to allow the likes of Victor Mallet, Benedict Rogers and others to have access to Hong Kong, as is correct and proper in a country with which the UK has such a long-standing relationship?
I agree with the hon. Lady that it is right and proper that such individuals are entitled to be there. We are concerned by the specific decision not to renew the visa of the Financial Times journalist Victor Mallet. As I said in Hong Kong the day I was there, that incident on 9 November undermines Hong Kong’s freedom of speech and, indeed, freedom of the press, which are guaranteed under the Basic Law. This, in turn, risks undermining Hong Kong’s economic success in the longer term. We will continue to raise those concerns.
Does the Minister share concerns about the trial that began on 19 November of nine leaders of the pro-democracy Hong Kong umbrella movement on such vague charges as “incitement to incite” public nuisance, and about the implications of such charges for freedom of speech and the rule of law in Hong Kong? Will Ministers raise such concerns with the Government there at the earliest opportunity?
I thank my hon. Friend for her tenacious work in this regard. The trials are a matter for the Hong Kong courts. I met Roberto Ribeiro, the deputy chief justice, and the head of the Hong Kong Bar Association when I was there in November. I have every confidence in the continued independence of the Hong Kong judiciary, which remains in high international esteem. But I hope that the incidents to which she refers will not discourage either lawful protests or the young from engaging in politics in Hong Kong.
The banning of a pro-independence party in September marks a disturbing new phase in the erosion of democratic rights and freedoms by China. It is a clear breach of the spirit of the 1984 declaration, yet the Government are so desperate for a post-Brexit trade deal that they have done nothing. Is Chris Patten right to describe the Government’s policy as “craven”?
May I reassure the hon. Lady that we have done rather a lot? We do not support Hong Kong independence as we feel that would be a clear breach of “one country, two systems”. Nevertheless, as she rightly says, the right to stand for election, and the rights to free speech and to freedom of association are absolutely enshrined in the Basic Law. We are also concerned that, if not the letter, then certainly the spirit of “one country, two systems” is being breached by this matter. We have issued a statement and we will continue to apply pressure through diplomatic means; we will do so on an ongoing basis. I share many of her concerns, but she should not believe that there is not a lot of work going on, both from our consulate general there and from London on this matter.
Brazil: Incoming Administration
The Prime Minister has written to President-elect Bolsonaro. Our ambassador in Brazil has seen him, many of the future Ministers and the transition team, and we look forward to working very closely with Brazil in the time ahead.
The great Sir David Attenborough said yesterday that climate change is humanity’s “greatest threat”. We all know that the Amazon rainforest is known as the planet’s lungs, yet we are seeing an alarming and irreversible rate of deforestation in the Amazon and worrying noises are coming out of the new Administration about their approach. So will our Government play a strong global leadership role in ensuring that the new Brazilian Administration understand their responsibility to protect the rainforest and the consequences if they do not do so?
The answer to the hon. Lady’s question is a very clear yes—the UK, of course, is fully committed. The Brazilian Government come into office on 1 January. The President-elect has already said that Brazil will remain a party to the Paris agreement. Our ambassador has already discussed this with the incoming Government and we will continue to put pressure on and lobby in the same way as we always do in favour of climate change legislation and adherence to the Paris agreement.
In any discussions the Minister may have with the new President, will he ensure that the understanding comes across that the populism that is sweeping across much of the democratic world is because of mainstream Administrations internationally leaving many of the populations behind? That is giving rise to the populism we see today.
I understand exactly what the hon. Gentleman is saying. I think that all Governments need to serve the needs of all their people. We have seen the rise of the right in quarters closer to home across Europe, including in regional elections in Spain last week. I agree that populism has its serious dangers. We want to see all Administrations serve the needs of their country, as we would all wish to see.
Hazara Population in Afghanistan
We have consistently urged the Afghan Government to protect the rights of all ethnic and religious groups, including the Hazaras, in line with the Afghan constitution. The Foreign and Commonwealth Office is deeply concerned by recent reports of security incidents affecting the Hazara community, particularly in Ghazni and Uruzgan. We will continue to call on all parties to the conflict to protect the civilian population.
Recently, Hazaras lobbied me and other hon. Members, saying that they are now in deep fear of an ISIS attack. This comes after they have suffered massacres at the hands of the Taliban, and they have a history of being the subject of genocidal attacks by other ethnic groups in Afghanistan. Given the amount of money we have put into Afghanistan, can the Minister not do more?
We fully understand the deep concerns about civilian casualties and displacement and, as the hon. Gentleman rightly says, the threat from not only the Taliban but potentially ISIS, too. Only last week, staff from the British embassy in Kabul met Hazara representatives for Ghazni from the Afghan Government, to hear those concerns at first hand. The Afghan national defence and security forces are working to stabilise the security situation, and of course they do that in tandem with UK forces.
In the light of the recent Taliban offensive and the atrocities that occurred as a result and bearing in mind the deep insecurity currently felt by the Hazara community, what additional support is NATO’s resolute support mission contributing to the Hazaras’ safety?
We are obviously working together with many of our allies, particularly at NATO level. NATO’s resolute support mission is helping Afghans to build their own self-standing capability and capacity. We very much hope to see the fruits of that in the years to come with the Afghan national defence and security forces. That work is happening in several parts of Afghanistan. The hon. Gentleman will appreciate that we are obviously concerned about the humanitarian side, particularly when we see civilian populations under threat. This is going to be a long haul. The hon. Gentleman will recognise that, working together with allies and the US in particular, we are no longer governed by an electoral timetable. We want to leave the country in a better place, which means working to build up that capacity.
The UK has been working with the United Nations to agree a global compact on refugees, which is set for adoption by the end of the year. It provides a comprehensive global framework that goes beyond life-saving humanitarian support, enabling a longer-term response, offering refugees a viable future.
The UN’s global compact on refugees is indeed welcome—it recognises our common humanity and interconnectedness—but I am concerned that it is non-binding. How will the Government work to strengthen it? Will the Foreign Secretary and Home Secretary work together to review our restrictive rules, which prevent refugee families from being together?
I am glad that the hon. Lady welcomes the UK’s role, and I assure her that the UK has been fully engaged throughout the whole process since the United Nations agreed to move forward on this issue. We have been working on the wording and the direction of travel, to make sure that it is an agreement that can work for the whole world.
Exactly what are we signing up to at Marrakesh?
We are signing up to the global compact on refugees. I should clarify for the House that it is a different document from the one that has perhaps generated more controversy: the global compact on migration.[Official Report, 5 December 2018, Vol. 650, c. 9MC.]
Following numerous political attacks, search-and-rescue vessels have found it difficult to operate in the Mediterranean. Given the death toll, which Médecins Sans Frontières reckons is approaching 1,300 people this year, what are the Government doing to support the non-governmental organisations that wish to provide search-and-rescue facilities in the Mediterranean sea?
The hon. Lady is right to raise this important issue. She will be aware that two Border Force cutters are in the area right at this moment. I know she will welcome the fact that over the course of the operation, UK naval assets have rescued more than 30,000 souls in the Mediterranean. Of course, we are doing further work in respect of the UK allocation, which so far has totalled some £175 million.
I recently attended a humbling and moving event in Taunton Deane to celebrate all the Syrian families—almost 20 of them—who have come to Somerset. Will the Minister join me in praising and thanking Taunton Welcomes Refugees, which is a model organisation? So many church people, individuals and council workers are involved in the organisation. It is just wonderful, and the families were so delighted. Will the Minister also please confirm our commitment to helping the most needy of Syrian refugees?
Mr Speaker, have you ever come across in this House a representative more passionate about her constituency than my hon. Friend? I am happy to endorse what she says and to endorse the work done in my county of Worcestershire. I inform the House that, nationally, the UK is well on track to achieving our commitment of 20,000 vulnerable people resettled in the UK by 2020. In fact, as of September, I understand that that total is now more than 15,000.
The Minister is absolutely right. I have learned more about Taunton Deane in the past three years than I knew for the previous 52—that is correct.
Many refugees are fleeing religious persecution. The Archbishop of Canterbury has said that Christians in the middle east are on the brink of extinction, facing the worst crisis since the 13th century in the birthplace of Christianity. What are the Government doing to support Christians in the middle east and to grant asylum to those who are fleeing that persecution?
Well, indeed, it is a very sobering Christmas thought from the Archbishop of Canterbury. In fact, there are 25.4 million refugees worldwide, and the UK, of course, stands as one of the most significant supporters of refugees whatever their religious persuasion. There is a service in Westminster Abbey later today to which all colleagues are invited. I know that this is an important piece of work that the UK will remain steadfast in supporting.
Will my hon. Friend outline what new mental health support is being given to the children in Lebanon and Jordan who are affected so badly by the fighting that is ongoing in Syria?
Yes, if Mr Speaker will allow me to put on my other hat from the Department for International Development just very briefly, I will say to my hon. Friend that he will be aware that the Secretary of State for International Development recently announced a range of new programmes to provide support in what has been a neglected area in terms of the psycho-social support and mental health support that particularly children in refugee situations need.
Yemen: Peace Process
Peace talks to resolve the terrible conflict in Yemen are due to start in Stockholm tomorrow and attendance is looking positive.
I am grateful to the Foreign Secretary for his response and for the support that he has given to these critically important peace talks. What reasons does he have for thinking that the Houthis and their Iranian backers will negotiate in good faith?
It is difficult to know the answer to that question, because what has bedevilled these talks to date is that both sides have thought that a military victory is possible. This is the first time for two years that the parties have come round a table together. I do think that the mood has changed, so we want to do everything we can to support it.
The UN says that more than 60% of civilian deaths have been the result of Saudi-led airstrikes. Will the UK Government therefore confirm that they will undertake any and all measures to ensure that Saudi Arabia is no longer armed and trained by the UK and that every impression is made on it to reach an agreement that means that no more Yemeni civilians die at its hands?
With respect to the hon. Lady, whose views I listen to carefully, it is important to remember that the cause of this conflict was the illegal taking over of power in Yemen by the Houthis, and the Saudi military offensive was authorised by resolution 2216. We have a relationship with Saudi Arabia, which we are using to encourage it to do everything possible to come round the table to talk about peace.
Some humanitarian agencies are warning that, next year, Yemen could have the worst famine in a century. Is it not incumbent on the civilised world, therefore, to lift every sinew to broker a peace settlement under the auspices of Martin Griffiths, our UN special negotiator?
My hon. Friend speaks extremely wisely. There are 8.5 million people on the brink of starvation; 14,000 people are getting cholera every week; and 85,000 children have already died of starvation. That is why we have to do everything possible. Martin Griffiths is doing a fantastic and very difficult job.
Houthi rebels pushed the legitimate Government in Yemen from power, and they have fired Iranian-backed missiles across the border into neighbouring countries and commercial shipping lanes. Does my right hon. Friend agree that any vote in the US Senate to withdraw American support from the coalition would undermine efforts to reach a ceasefire?
My hon. Friend is absolutely right to point out that there can be no lasting settlement to the terrible conflict in Yemen unless Iranian missiles are stopped from firing from Yemen into Saudi Arabia and even as far as Riyadh. That is why we must have a balanced way forward that recognises both the humanitarian needs and Saudi Arabian security.
The Prime Minister said yesterday that the situation in Yemen could only be resolved with a “long-term political solution.” To make that possible, should we not be strongly urging restraint on the part of the Saudis, given that when total war has been waged on civilians—often using weapons supplied by this country—it is hard for calls for a political solution to carry any meaningful weight or credibility?
We are strongly urging restraint on both sides. I recognise what the hon. Gentleman says about the urgency of the situation, but I also think it is encouraging that, for the first time in two years, the participants are coming together this week in Stockholm.
Some 85,000 children under the age of five have starved to death in Yemen over the past three years. Does my right hon. Friend agree that a political solution is the way to a lasting peace and that, more urgently, we need to ensure that imports of food can make it through the port of Hodeidah in the light of the Save the Children Fund report?
My hon. Friend is absolutely right. Hodeidah opening is crucial; it is also important to get access to the Red sea mills, which have enough wheat to feed 3.6 million people. The fighting has lessened, but it has still not stopped, which is why we need these peace talks to succeed.
Fifty wounded Houthi rebels are to be flown from Yemen to Oman. Does my right hon. Friend agree that that flight on a UN plane for treatment is at least a good sign of good will in advance of the peace talks and that we should pay tribute to all those involved and be hopeful for the future?
Yes, my hon. Friend is absolutely right. That was one of the conditions that the Houthis made for their participation in the talks in Stockholm, and the Saudi agreement to do so was actually announced when I was in Riyadh a few weeks ago.
It is hugely welcome and encouraging that the peace talks in Stockholm are finally starting tomorrow. Will the Foreign Secretary update us, in parallel, on what is happening regarding getting a new UN Security Council resolution?
I am happy to do that. We have circulated a text, and the truth is that we will finalise that text after the talks have concluded. If we could choose what the text would say, we would love it to announce a ceasefire, but there is no point doing that unless it is agreed by all the parties. That is why we want the peace talks to succeed.
May I thank the Foreign Secretary for the amount of time that he has spent on the Yemen issue since assuming office? This is a very special moment. The guaranteed treatment of the Houthis in Oman is critical, but may I ask the Foreign Secretary to go to Stockholm on one of the days and show the support of the highest level of this Government for the peace process?
In principle, I have no problem with doing anything that will help this process along. As my hon. Friend the Member for The Cotswolds (Sir Geoffrey Clifton-Brown) said, this is by far the worst humanitarian crisis in the world today and possibly the worst that we have had for 100 years. However, I will always be guided by Martin Griffiths on whether my presence would be helpful.
As long as the bombing continues, can the Foreign Secretary describe the surveillance that British embassy officials have over the activities of the Saudi air force, as required by export licence conditions?
The right hon. Gentleman is absolutely right to point that out. Indeed, he oversaw those export conditions when he was working in government. It is because of the contracts that we have with the Saudis that we are very closely involved in looking at things like their targeting to make sure that they are indeed compliant with international humanitarian law.
I thank the Foreign Secretary for his update on the Yemen peace talks. I would like to ask him some more questions about the UK’s draft UN resolution. May I ask him a question that I have asked three times now—at the Dispatch Box, by letter and in a written parliamentary question—without ever getting an answer, yet it is such a simple question? Did the version of the draft UN resolution shown to Crown Prince Salman by the Foreign Secretary on 12 November include a call for independent investigations of war crimes—yes or no?
First, I did not show a text of the draft resolution to King Salman or the Crown Prince when I went to Saudi Arabia, but I can confirm that both the original text and the current text refer to international humanitarian law. But in the process of getting that text agreed, did we make compromises to please the Saudis? Yes. Did we make compromises to please the Houthis? Yes, we did. As a result of that diplomacy, the talks are happening this week. Rather than criticising that, the right hon. Lady should be celebrating the brilliant work done by British diplomats.
It would be very helpful, in those circumstances, if the Foreign Secretary put a version of that draft resolution in the Library so that we can all see it for ourselves. In the meantime, the House will be aware that this week the US Senate is due to vote on whether America should continue supporting the Saudi assault on Yemen, even as millions of children face starvation. If the Foreign Secretary genuinely believes in the sovereignty of this Parliament, when will he show it? When will he ask Members of this House to vote on whether the UK support for this war can any longer be justified?
I simply say to the right hon. Lady that when it comes to the question of arms exports to Saudi Arabia, she seems to feel rather more strongly about it today than she did in 2007, when Labour Foreign Office Minister Kim Howells talked about shared values with Saudi Arabia following a big arms deal. The truth is that we follow the guidelines put in place by a Labour Government. That is what we do. They are the strictest in the world, and if she wants to change them, she should say so.
Human Rights and Freedom of Religion or Belief
The FCO’s 2017 human rights and democracy report demonstrates the breadth of the issues we work on and how we mobilise our diplomatic network to champion universal rights. This of course includes freedom of religion or belief. As a testament to that commitment, on 4 July the Prime Minister appointed my FCO colleague, Lord Ahmed, to the role of special envoy on FORB—and end to which I can assure this House he works tirelessly.
The biggest recipient of UK aid, Pakistan, has received £2.8 billion over the past 20 years—that is nearly £400,000 a day. Should we not suspend aid until Pakistan promotes freedom of religion and belief for its minorities and allows an innocent woman, Asia Bibi, falsely imprisoned for nine years, to leave Pakistan, and should we not be offering her asylum in the United Kingdom?
I know that a number of Members have concerns about this question. As the Prime Minister has stated, our primary concern is the safety and security of Asia Bibi and her family. We want to see a swift and positive resolution to the legal aspect of this case in Pakistan. I should perhaps say that one allied nation has, for some years, been in detailed discussions about providing a safe destination for Asia Bibi and her family once the current legal process is complete. The House will appreciate that going into detail on these discussions would compromise that safety.
Having recently returned from the Holy Land with a cross-party delegation of women MPs—and, indeed, your Chaplain, Mr Speaker—I am very concerned about the human rights abuses that I saw. Does the Minister agree that there is a renewed urgency to find a solution to the conflict in this area?
I thank my right hon. Friend for her question. I could not agree more. We will continue to work as closely as we can with all parties. As I have pointed out, we do a lot of work underneath the radar. The Foreign Secretary and my right hon. Friend the Minister for the Middle East work very closely in relation to these issues and will continue to do so, looking after the rights of religious minorities across the world.
I know that my hon. Friend the Minister for Africa has recently been in Cameroon and speaks regularly with counterparts. We are extremely concerned about the issues in the Anglophone area. As the hon. Lady will be aware, a considerable amount of work goes on with Boko Haram on the porous border between Cameroon and Nigeria. We will continue to do all we can to protect the interests, particularly in the Anglophone area
Cambridge PhD student Peter Biar Ajak was detained without charge by the authorities in South Sudan in July for doing nothing more than speaking out on the human rights of his fellow citizens. The Government said at the time that that was of great concern. Can the Minister tell us what action has been taken since then to secure Peter’s release?
I thank the hon. Lady for her question. We remain appalled by the conflict and deteriorating humanitarian situation in South Sudan. We welcome the regionally led peace agreement signed on 12 September. We believe that that is the only real chance and opportunity for the people of South Sudan, who have suffered for so long. There are positive steps, but I accept, as the hon. Lady points out, that progress is very slow and inconsistent. We welcome reductions in violence, and we work with our mission there to try to move towards ceasefire violations coming to an end.
Journalists’ Rights and Freedoms
We are very concerned at the increasing number of attacks on journalists throughout the world, which is why next summer we plan to host a major conference in London on protecting media freedom.
I am grateful for that answer. This issue is close to my heart. Will the Foreign Secretary confirm that the UK Government will continue to press other countries to protect the freedoms, rights and securities of journalists, wherever they might be working and however inconvenient their reporting might be in those jurisdictions?
I am happy to confirm that. When I was in Burma, I talked to Aung San Suu Kyi about the two Reuters journalists, Wa Lone and Kyaw Soe Oo, because we have serious concerns about how due process was applied in their cases. We should remember in this House that 65 journalists were killed last year, and nine out of 10 times, no perpetrators were brought to justice.
The Foreign Secretary knows that, out of Europe, we are more and more not only under the radar but on the periphery of the periphery. The plight of journalists and aid workers is very similar, in terms of the dangers they have to face doing good work. Will he speak to the president of the International Rescue Committee, David Miliband, about that?
I met David Miliband when I went to New York in September, and I think it would be a good idea to have those discussions. We have great concerns about the safety of aid workers, but our concern with respect to journalists is that this trend seems to be increasing, and it seems to be the new border between free and unfree countries.
The BBC is still banned from Rwanda. Is the Secretary of State hopeful that that ban will be overturned by the Commonwealth Heads of Government meeting in 2020?
My hon. Friend the Minister for Africa has just indicated to me that she is very hopeful that the ban will be overturned before then.
Ah yes, the Political Studies Association’s Back Bencher of the year, Diana Johnson.
Thank you, Mr Speaker. I listened carefully to what the Foreign Secretary said about Iran and journalists. With the UN special rapporteur on freedom of expression, David Kaye, describing the recent attacks in the state media and online in Iran on the BBC Persian service as “deplorable”, what more can we do to support those journalists who so bravely work in the BBC Persian service?
I, too, congratulate the Back Bencher of the year.
I raised this issue when I was in Tehran on 19 November. I pointed out to the Iranian Government that if they are unhappy with the coverage of the BBC Persian service, there is a very simple thing that they can do: allow their representatives to be interviewed on it and allow them to put across their point of view, at which they smiled and changed the subject. We will, however, continue to press on that point.
Illegal Wildlife Trade
We will continue to work with international partners to drive progress in tackling this terrible crime and deliver on the commitments made at October’s London conference. Some 57 countries have adopted the conference’s declaration so far.
Will my hon. Friend update the House on the progress that is being made towards the Government’s target of halving the number of elephants killed for ivory by 2024?
We are leading from the front. As my hon. Friend knows, we are bringing in an ivory ban in the UK. We have formed a high-level political coalition, the Ivory Alliance 2024, and we are urging everyone to tackle something that is extremely urgent, because the number of African elephants has declined by 30% over the past seven years.
May I ask the Minister, who will share all our concerns about this illegal wildlife trade, to redouble her efforts to get other countries involved as well as her own and to get international organisations involved? What has happened is deplorable, and the wildlife across this planet is disappearing before our eyes.
I thank the hon. Gentleman for his endorsement of the work, and we truly are working very energetically and vigorously, following the incredibly important and wide-ranging conference. As I say, 1,000 people attended it, and 57 countries have signed up to the declaration. We are encouraging everyone and leading by example with our ivory ban.
Order. We are out of time, but I do not want Lewes or Stockton North to lose out. Extreme brevity is required.
Israel and Palestine
The recent upsurge of violence in Gaza reminds all of us of the need to ensure that the middle east peace process gets moving, because that is the only thing that will make a difference. Both the Foreign Secretary and I have recently seen US envoy Jason Greenblatt, and we will continue all our efforts.
The UN General Assembly is scheduled to vote on Thursday on the US-sponsored resolution condemning Hamas for the increasing violence and attacks on civilians and for the worsening situation in Gaza. Will the UK Government be supporting that resolution?
We do not disclose the intention to vote in advance. What I would say is that it is very clear that we condemn Hamas’s action and conduct; we call for a permanent end to its terror and rocket attacks in relation to Israel; and we continue to proscribe the military wing of Hamas, to impose sanctions against individuals and to have no contact with Hamas.
Given the Government’s view, which I know the Minister shares, that Israeli settlements are illegal under international law, why do the Government allow the import of goods from those settlements and investment by British companies?
We allow the import of goods, but the labelling makes that clear, so customers can make their own choice about whether to buy goods from those areas.
What assessment has my right hon. Friend made of the Hezbollah terror tunnels from Lebanon into Israel that have been discovered?
The tunnels demonstrate the continual threat to the state of Israel from those who would mean it harm. Again, however, that emphasises the need—I am sure the whole House shares this view—to ensure that there is a resolution of the issues between Israel and its neighbours, so that there can be permanent peace and security for all in the region.
Ministers keep telling us that they want to wait and see President Trump’s long-awaited middle east peace plan. In the meantime, we have seen an escalation of violence, death on the Gaza border, a worsening humanitarian crisis, continued demolition of Palestinian homes and the ending of US support for the United Nations Relief and Works Agency. Is it not time that the UK said very clearly, “You cannot have a two-state solution if you only recognise one state”?
We have said very clearly that we recognise a two-state solution. We are keen to ensure that when the envoy’s proposals come forward, they get a strong reception, and people can work on them to try to bring a resolution to this long-standing crisis. It is the only thing that will deal with the concerns that the hon. Gentleman raises.
Economic and Diplomatic Relations: Africa
Mr Speaker, congratulations on getting through the whole Order Paper.
We are opening posts in Chad, Niger, Eswatini, Lesotho and Djibouti and increasing the number of staff working on Africa by up to one third.
With the African Union developing a continental free trade area, what additional resources are the Government putting into Addis Ababa to deal with the increasing opportunities for working with the African Union?
My hon. Friend is right to highlight the importance of the African Union and its work in Addis Ababa. In the years to come, we will increase the number of posts working with the African Union by, I think, 12.
Given the stresses and strains in British politics at the moment, I thought I might share with the House some good news: we will open a new British embassy in the Maldives. That small country has made important strides towards democracy with the recent elections and we wish to extend it every support possible, doubtless supported by several colleagues making fact-finding visits.
I wonder whether the Foreign Secretary is opening the said embassy, or whether he is generous enough to devolve that to his deputy.
I will be first up for coming on the opening visit.
Does my right hon. Friend agree that through programmes including the prosperity fund, but particularly through working with MPs in Parliaments in developing counties, the UK could establish itself as a leader in accelerating renewable energy, electric cars and other business opportunities to promote sustainable development and climate action in developing countries?
Mr Speaker, given that we wish to encourage parliamentary democracy in the Maldives, you might be the right person to go there on that important occasion and I am happy to expedite the process if it would help.
I completely agree with my hon. Friend about the importance of zero emissions, and Britain can certainly play a leading role.
A nice easy one. Perhaps I should say that I am the last British Minister to visit Malé, the capital of the Maldives, and I would not recommend it for more than a weekend, though the islands around might be more fun. I think that that is why my right hon. Friend the Foreign Secretary suggests that you should go there, Mr Speaker.
I will keep my answer to the hon. Member for Plymouth, Sutton and Devonport (Luke Pollard) simple: yes, of course, I am happy to meet him at any point.
I know that my hon. Friend contributed to the Westminster Hall debate that took place last week, thanks to the hon. Member for Strangford (Jim Shannon) and the Backbench Business Committee. In that, I outlined the way in which our high commission is working with not only the national Government, but the state Government and community and religious leaders, and offering its help to support reconciliation and mediation in this growing crisis.
We are still pressing the Israeli authorities in relation to exactly what we said previously. That is the best way to try to find an answer to the tragedy that happened in Gaza.
My hon. Friend is absolutely right about the soft power access of the Chevening scholarship programme, which creates lasting, positive relationships with future leaders, influencers and decision makers from 145 countries around the world. We now have some 50,000 Chevening alumni since the project was set up in 1983. Last year, with 75 scholars, China was the single largest part of our Chevening ambition.
As with all countries, I urge anyone thinking of travelling to look at the travel advice, which we offer in a very disciplined way on the Foreign Office website. Should the hon. Gentleman wish to discuss an individual case, then of course I would be very happy to see him as he asks.
Yes. The Foreign Secretary does indeed wish to widen the pool of talent from which we select ambassadors. Irrespective of that initiative, we are very keen to develop economic and commercial ties with Albania. We will do that in conjunction with the Department for International Trade. One thing that would help those commercial opportunities would be if Albania itself reforms its justice sector.
We are very concerned about the current chaotic political situation in Sri Lanka to which the right hon. Gentleman refers. It is causing great damage to that country both politically and economically. I made statements on 26 October, 29 October, 9 November and, as he knows, earlier this week at the meeting of the all-party group for Tamils. We will continue actively to co-ordinate our response with the international community in Colombo and in the UN.
First and foremost, we want this to be resolved by Sri Lanka in line with its own constitution and laws. We welcome the statement made on 5 November by the Commonwealth secretary-general, who I understand will be meeting the Foreign Secretary to discuss a range of matters. Obviously, Sri Lanka will very much be at the forefront of that conversation. We want to encourage ongoing dialogue and to offer the support of the Commonwealth, if required, to the Government and the people of Sri Lanka. We are in an ongoing dialogue with the Commonwealth and other partners to ensure a co-ordinated international response.
I am sure I speak for all members of the Foreign Affairs Committee when I say how much we are looking forward to scrutinising the work of our new embassy in the Maldives.
What assessment have the Government made of the human rights of Palestinians living under the brutal dictatorship of Hamas, which routinely imprisons people without trial, tortures them, executes people and is reported today to have sentenced six people to death? Does that not show, along with the indiscriminate attacks on Israel, why Hamas is the main barrier to the peace process that we all want to see?
Yes; there is all too little emphasis on looking at the rule of Hamas in Gaza and the human rights abuses that are conducted, not least the pushing of people towards the fence during the course of the summer, which led to some of the deaths and woundings that have taken place. That is why we have a long-standing policy of no contact with Hamas.
Will my right hon. Friends update the House on the work they are doing with the Department for International Trade on securing UK accession to the World Trade Organisation’s Government procurement agreement?
Yes, I am very happy to announce that we were successful in our application to join the GPA and we were strongly supported by a number of allies all over the world.
The 3.9 million Christians in Pakistan are among the most persecuted in the world. Will Ministers assure the House that they are working with colleagues in the Department for International Trade to make sure that any future trade deals are not made at the expense of those people?
I assure the hon. Lady—I know the Foreign Secretary feels the same way—that clearly this is a major concern. As she rightly points out, we want trade deals with that country and we want to normalise relations, but we are particularly concerned about the freedom of religious belief, which applies not just to Christians but to many other religious minorities in that country.
On a recent visit to Sweden, I was rather disturbed to see a leaflet being delivered to every household entitled, “Om krisen eller kriget kommer”, which translates as “If crisis or war comes”. Will my right hon. Friend confirm that we are doing all that we can to stand by and support our closest allies not just in Sweden, but across Scandinavia and the Baltic, who see themselves on the frontline of this new cold war?
Apart from my hon. Friend’s primary duty of defending his Swedish wife, I can confirm to him that we are, of course, not in any way resiling from our commitment to defend our friends and to understand growing threats in eastern Europe and to the north.
The Foreign Secretary said earlier that they had achieved a great deal from the EU as part of the Government’s proposals. What parts has the Foreign Secretary not achieved?
As I said earlier, we have achieved a large part of what we wanted to achieve. The question is whether by accepting this deal we can go on and achieve everything that we want, and I believe that we can.
What assessment has the Minister for Africa made of the preparations for the forthcoming elections in the Democratic Republic of the Congo, which are so vital?
I can share with the House that our assessment is that they are on track to take place, in accordance with the accord of Saint-Sylvestre, on 23 December. My hon. Friend will know that the UK has been very involved in funding 20,000 of the 60,000 election observers who will be there to observe the process.
My constituent, Mr Nkemgo, is from Cameroon. Many close members of his family have been shot and killed, and their villages have been burnt. What urgent action has the Secretary of State taken or will he take, and what does he say to my constituent?
I can say to the hon. Lady’s constituent that she is absolutely right to raise this very serious situation, that the UK Government are doing everything that they can to encourage the Government in Cameroon to engage in a dialogue with what has become an increasingly armed separatist movement. We are working with the United Nations on what further assistance can be given to the populations who are being displaced in this crisis.
Nappies (Environmental Standards)
Presentation and First Reading (Standing Order No. 57)
David Linden, supported by Patricia Gibson and John Mc Nally, presented a Bill to establish environmental standards for nappies; to make provision about the advertising and promotion of nappies with regard to those standards; and for connected purposes.
Bill read the First time; to be read a Second time on Friday 25 January 2019, and to be printed (Bill 299.)
Motion for leave to bring in a Bill (Standing Order No. 23)
I beg to move,
That leave be given to bring in a Bill to limit the grounds of appeal against decisions on planning applications consistent with a neighbourhood development plan or local plan; and for connected purposes.
I am introducing this Bill to try to provide reassurance to communities who spend considerable amounts of time and money producing a neighbourhood plan that their work is valued, that it plays an important part in the planning system and the determination of planning applications, and that, together with the local plan produced by the district or borough council, it is a fundamental document—[Interruption.]
Order. This is something of a discourtesy to the hon. Gentleman who is moving his ten-minute rule motion. It might not be front and centre stage in the minds of all right hon. and hon. Members, but it is extremely important to the hon. Gentleman and to a lot of people. Whether people are interested in listening or not, they should do him the courtesy of affording him a respectful silence.
Thank you, Mr Speaker.
I want to reassure those communities that neighbourhood plans are fundamental documents and that the effort made in producing them is worthwhile. In my own constituency, two more plans recently passed referendums by 94% and 98%, which shows how much they are valued by communities. The Bill would provide that, where a district or parish has taken control of the planning requirements in their area, that view is an important and determining one for taking applications forward.
I introduce the Bill having held the position of Government champion for neighbourhood planning. In that role, I have been around the country talking to groups of parish councils and their Members of Parliament about why they should produce a neighbourhood plan. I am grateful to the many colleagues—far more than the 11 supporter slots available—who have supported the Bill.
In my constituency, in a village called Sonning Common, the local community and district council are reported to have spent £90,000 defending the village’s new neighbourhood plan against an appeal. The subject of the appeal was an application for 95 dwellings on a site located in the neighbourhood plan for just 26. Why the application was able to be taken to appeal is part of the reason for the Bill. The application was inconsistent with the Sonning Common neighbourhood plan and there were no mitigating circumstances. Local residents had worked very hard on the neighbourhood plan, and continue to do so. The question we have to ask is: why was the existence of the neighbourhood plan not sufficient?
In order to set the scene for the Bill, I will go back to what prompted me and the then Planning Minister, my right hon. Friend the Member for Tunbridge Wells (Greg Clark), to introduce neighbourhood plans in 2011-12. The starting point was the recognition that the previous system of taking parish views on applications into account by ticking one of three boxes was inadequate. The boxes were: “yes”, “no” and “no firm opinion”. As we live in a plan-led system, it was crucial that anything that replaced it was part of the plan-led system—hence a new plan, the neighbourhood plan. This has proved to be a much better way of crystallising local views of development.
The neighbourhood plan becomes part of the local development plan when it is approved at a referendum and thereby carries the full legal weight that the local plan does. It is not a nimby’s charter. The plan needs to conform with the strategic objectives of the local plan, particularly the housing numbers, which should be seen as a minimum figure, and they have in practice allocated some 10% more sites than originally detailed by the district or borough council. About 2,500 communities around the country are producing a neighbourhood plan, and many have already passed a referendum with North Korean-style majorities. Nevertheless, despite the work of the local plan expert group, on which I served, to simplify the production of neighbourhood plans, the process is becoming more complex and time-consuming for ordinary people to carry out, and I pay tribute to the volunteers who spend so much of their time putting these plans together.
There is a bigger problem that the Bill seeks to address. Imagine a parish that has committed considerable money and time to producing a neighbourhood plan. It has been through the exercise of allocating sites. It may even have allocated more than it was told was appropriate by the district council. A developer wants to make a planning application that falls outside the neighbourhood plan. He makes the application. It is rightly refused as being not in accordance with the neighbourhood plan, yet he can still appeal to the Planning Inspectorate. That appeal will need to be defended. It will require vast amounts of time from the local people who put the plan together. It may require the services of a QC or other specialists, depending on the nature of the defence. As at Sonning Common, they and the district council may end up having to spend around £100,000 on defending it. Moreover, the chances of the neighbourhood plan being upheld are open to doubt. In other words, all that effort and all that money could be wasted. The question I am always asked is why, when we have a neighbourhood plan, should the developer be allowed to appeal?
How would the Bill work? Let me give three examples. First, we have the situation where there is a robust five-year housing land supply in place—or indeed, where appropriate, a three-year housing land supply—as well as a fully approved neighbourhood plan and local plan. In this case, a developer makes an application for development that is contrary to the neighbourhood plan and is earmarked for refusal on the basis of neighbourhood plan policy. The local planning authority first decides that the application is outside the plan, or contravenes a policy in it, and refuses it. It also makes a formal decision, which is published as a formal notice in the minutes of the planning committee, that the application is contrary to the neighbourhood plan: in other words, that the neighbourhood plan holds sway. In this instance the developer would have no right of appeal, because it would be withdrawn.
In the second case, there is still a five or a three-year housing land supply, but in reaching its decision, the local planning authority does not follow due process. It makes a decision in which there are processual errors. It is not possible to evaluate the significance or impact of those errors, and whether that would ensure that the decision could be overturned or whether it would make no difference at all. In this case, too, the finding of fact is that the application is contrary to a neighbourhood plan. The developer would have to make an initial referral to the court by way of judicial review of the processual issues, meaning that the bar for decision was a high one, and he would seek leave to appeal to the planning inspectorate. It would be for the court to review the processual errors rather than the issue of fact.
In the third example, there is no five or three year-housing land supply, but the local planning authority still refuses the application. In this case, the rights of the developer to appeal against the application to the planning inspectorate would continue as now. That would have a number of effects. First, it would send a strong message to developers that neighbourhood plans are to be taken seriously. I am fully aware of one developer who has devoted considerable resources to undermining neighbourhood plans and regularly submits objections to local planning authorities. The issuing of a notice by the local planning authority makes it clear that there is a finding of fact that the application is contrary to a neighbourhood plan.
Secondly, only through such action will we return real democracy to the towns and villages of this country, as we originally envisaged in the Localism Act 2011. It will have no bad effect on housing numbers: as I have said, neighbourhood plans provide for some 10% more housing than originally envisaged. It could even make the allocation of land for more houses more attractive to towns and villages, because they will be protected from rapacious interests. Thirdly, it will give those towns and villages confidence that producing a neighbourhood plan is worthwhile, and will be seen as producing a determinant for the planning system.
Fourthly, this can be seen as another step in the reform of the neighbourhood planning system, which has adapted to changing circumstances throughout. First, there was the Barwell ministerial statement, which in certain circumstances reduced the housing land supply to three years. More recently, changes have been included to simplify the process for updating a neighbourhood plan.
Lastly, the Bill will encourage communities to prepare plans, including local district and borough councils, and to support neighbourhood plans. Our Local Plans Expert Group report quoted the then national planning policy framework, which states that plans should be
“the key to delivering sustainable development that reflects the vision and aspirations of local communities.”
However, we also commented that less than a third of the country was suitably covered. There are many examples of good practice in plan making; the Bill will add to that stock of good practice.
Question put and agreed to.
That John Howell, Sir Oliver Letwin, Sir Nicholas Soames, Sir David Evennett, Nick Herbert, Sir Geoffrey Clifton-Brown, David Hanson, Kevin Hollinrake, Gillian Keegan, Victoria Prentis, Damien Moore and Stephen Lloyd present the Bill.
John Howell accordingly presented the Bill.
Bill read the First time; to be read a Second time on Friday 25 January 2019 and to be printed (Bill 300).
Privilege (Withdrawal Agreement: Legal Advice)
The right hon. and learned Member for Holborn and St Pancras (Keir Starmer) has tabled a motion for debate on a matter of privilege, which I have agreed should take precedence today. I must inform the House that I have selected the amendment in the name of the Leader of the House.
I beg to move,
That this House finds Ministers in contempt for their failure to comply with the requirements of the motion for return passed on 13 November 2018, to publish the final and full legal advice provided by the Attorney General to the Cabinet concerning the EU Withdrawal Agreement and the framework for the future relationship, and orders its immediate publication.
I move this motion in my name and in the names of the relevant spokespeople for the Scottish National party, the Liberal Democrats, the Democratic Unionist party, Plaid Cymru and the Green party.
The issue before the House on this motion is very simple: have the Government complied with the order made by this House on 13 November this year to publish the final and full legal advice by the Attorney General to the Cabinet concerning the EU withdrawal agreement and the framework for the future relationship, yes or no? That order was binding. Mr Speaker, on 13 November I sought your advice on that issue and you ruled in the following terms:
“The ruling I give is simply that the motion is effective—I have been advised thus. It is not just an expression of the opinion of the House; it is an expression of the will of the House that certain documents should be provided to it.”—[Official Report, 13 November 2018; Vol. 649, c. 236.]
Yesterday, the Government published a reasoned position paper. That was not legal advice. It simply described the deal: it was a synopsis; it was in the nature of an explainer—an explainer having already been published when the deal was published. It was a long way from legal advice. The Attorney General made a statement to the House and then answered questions, but the Government did not publish the full and final advice by the Attorney General to the Cabinet. That is the long and short of it. The Government are wilfully refusing to comply with a binding order of this House, and that is contempt.
Yesterday, the Attorney General as good as admitted it when he said:
“I wish that I could comply with the request of this House but if I did, I sincerely believe that it would not be in all of our interests.”
And slightly later he said:
“although the House says that I should disclose, I believe that the public interest compels me not to. I am sorry.”—[Official Report, 3 December 2018; Vol. 650, c. 534 and 564.]
That is a plea of mitigation; it is not a defence.
I make three points about the Government’s position. First, as the hon. Member for North East Somerset (Mr Rees-Mogg) made clear yesterday, for the Attorney General to say that in his view it is not in the national interest is not good enough. The hon. Member for North East Somerset went on to say:
“When the Government lose a vote, they must follow the will of this House under an Humble Address, according to all precedent. It is no longer a matter for the Government to judge; it has been decided by this House, which is a higher authority.”—[Official Report, 3 December 2018; Vol. 650, c. 563.]
My second point is this: if the Attorney General feels so strongly about this matter that he is prepared now to put the Government in contempt of Parliament for refusing to comply with a binding order, why on earth did he not vote against the order in the first place, or anybody else on the Government Benches? That was not an oversight: the Government knew very well what was being asked for. The Attorney General must have known what was being debated and voted on. Yet it appears from answers given by the Attorney General yesterday that he was not asked before that vote for his view on the wisdom of not voting against the order, nor did he offer any advice, directly or indirectly.
Again I quote the Attorney General:
“I had no discussions with the Chief Whip on this subject. None was sought.”—[Official Report, 3 December 2018; Vol. 650, c. 569.]
I do not doubt the Attorney General’s word for a minute, but really—before that vote nobody asked the Attorney General’s views on the consequence of not opposing the order?
The truth is that the decision not to oppose the order was a political decision, taken by the Government because they feared they would lose the vote. They did not want the short-term humiliation of losing a vote, and the price of that was higher than voting against the order—and none of them did that. That is not the first time that has happened.
Will the right hon. and learned Gentleman give way?
I will in a moment.
For months the Government have ignored Opposition day motions, and now their tactic has got them into very deep water indeed. The Government cannot now come to this House and say, “We took a political decision not to oppose the making of the order to publish the full and final legal advice by the Attorney General and then we took a decision not to comply with that order, but somehow we are not in contempt of Parliament.”
My third point is about the Government’s amendment in the name of the Leader of the House asking this House to refer the matter of whether the Government’s response fulfils the motion to the Privileges Committee. The short point is this: there is nothing to refer. A binding order was made and the Government are refusing to comply with it. The reality is that, yet again, by their amendment the Government are simply playing for time in the hope that this ends up in the long grass until the crucial vote is long gone.
So this motion is extremely important. It has huge constitutional and political significance. Bringing the motion is not something I have done lightly. [Interruption.] On the contrary—[Interruption.] On the contrary—[Interruption.] On the contrary—[Interruption.] On the contrary—[Interruption.]
Order. [Interruption.] Order. I do not need somebody yelling rather stupidly from a sedentary position “Give way.” The right hon. and learned Gentleman will give way if and when he wants to do so, and that is the end of the matter. And the same will apply when the Leader of the House is on her feet. Let me just make it clear: these are extremely serious matters and the public is entitled to expect that this debate will be conducted with courtesy. However long it takes—[Interruption.] However long it takes, that is what will happen.
I have not taken the decision lightly because I understand the constitutional and political significance of this motion. On the contrary, we have raised points of order on a number of occasions about this order, and we have asked urgent questions, and I have repeatedly urged the Government to reconsider their position both publicly and privately, making clear the consequence of not doing so. But the Government have chosen not to do so. I urge the Government now, even at this eleventh hour, to think again: to pull back from the brink of being found in contempt of Parliament.
This motion is a last resort. The issue before us is simple: this House passed a binding order; the Government are wilfully refusing to comply with that order; that is contempt of Parliament.
Order. The right hon. and learned Gentleman has very clearly completed his speech. To move the amendment, I call the Leader of the House.
I beg to move amendment (a), leave out from “House” to the end and insert:
“refers to the Committee of Privileges the question of whether the Government’s response fulfils the motion passed on 13 November 2018 and requests the Committee to consider the constitutional and historic context and the proper use, ambit and scope of the motion for return procedure.”
I want to start by thanking my right hon. and learned Friend the Attorney General for putting himself at the disposal of the House yesterday for over two hours, to provide information about the legal impact of the withdrawal agreement. He did so with his characteristic candour and integrity. The use of this motion has happened very rarely in the history of Parliament, and I do not think that any Member can be in any doubt that the information that the Attorney General provided yesterday was a very frank assessment of the legal position. The questions posed by Members on both sides of the House addressed the key issues we must all consider on the legal effects of the withdrawal agreement. My right hon. and learned Friend responded to all those questions in comprehensive fashion.
Alongside yesterday’s session of nearly two and a half hours, the Government have also provided a 48-page legal commentary that sets out the legal effect of each part of the withdrawal agreement. The information provided to the House is the detailed legal position on the withdrawal agreement and, as the Attorney General said to the House yesterday, he continues to be at the disposal of parliamentarians to answer further questions.
I would, therefore, in responding to the contempt motion before us today, urge the House to exercise caution in this matter. The issue at hand is not one of substantive content. As yesterday’s questioning illustrated, there is no real dispute as to the meaning and legal effect of the withdrawal agreement. The Attorney General could not have been clearer about the legal position yesterday. No hon. Member could say in all honesty that the Attorney General has done anything other than treat this House with the greatest respect. There can be no question that he, or the Government, has acted in a manner that is contemptuous of this House.
The Leader of the House says that the Attorney General answered with candour. Indeed, he did, when he said that
“although the House says that I should disclose, I believe that the public interest compels me not to.”—[Official Report, 3 December 2018; Vol. 650, c. 564.]
He made it clear that he was deliberately in contempt of Parliament.
The hon. Gentleman is not correct. As I have just set out, the Attorney General answered questions from all Members with the most possible frankness on the clear legal position.
Does my right hon. Friend share my disquiet about some of the sincerity expressed by the right hon. and learned Member for Holborn and St Pancras (Keir Starmer)? The letter that he produced in support of the motion was signed and sealed on Thursday. They clearly had no interest in what the Attorney General had to say on Monday.
I agree with my hon. Friend that the House needs to exercise some caution, and I wish to explain precisely why.
The issue we are debating today is the Government’s duty to protect Law Officers’ advice in the national interest. The House has previously recognised the importance of the principle that information cannot always be disclosed. This is always guided by the need to protect the broader public interest. This is directly reflected in the Freedom of Information Act 2000, brought in under a Labour Government, which sets out a careful scheme for balancing the twin imperatives of transparency on the one hand, and of safeguarding the public interest on the other. The consequences of not following those principles are obvious. The House might request, by way of a Humble Address, information that could compromise national security or which might put the lives of our troops in danger.
Obviously, parliamentary sovereignty and the duty of Government to obey motions is extremely important to the House, but my right hon. Friend is rightly describing the other problem of the confidentiality of legal advice, which Labour and Conservative Governments need as well. Is there not a sensible solution to this, as opposed to this current party political exchange? The Opposition could agree to receive a confidential briefing on Privy Council terms, look at the documents and have the Attorney General point out those parts that, in everybody’s view, might damage the national interest or damage the negotiating position of any Government of any party, and in effect agree to redact the documents. The politically embarrassing bits, which are what the Opposition are after, and all the rest of it can come out.
Both the conventions—that the House must be obeyed and that the Attorney General’s legal advice should be confidential—should be protected, and that is a possible way of reconciling them.
I am grateful for the advice of the Father of the House, but he will appreciate that the right hon. and learned Member for Holborn and St Pancras (Keir Starmer) wants all legal advice to be put into the public domain without any attempt to protect the national interest.
I will not give way for a while.
The consequences of not following the principles of transparency on the one hand and safeguarding public interest on the other are obvious. The House could request, by way of a Humble Address, information that could compromise national security. It would mean releasing information with no method for the House itself to review or assess the information in question, before its full release into the public domain. It would not be possible under the Humble Address procedure to weigh up any potential consequences of such a disclosure. It is simply an irresponsible thing to do.
Turning to the present case concerning Law Officers’ advice. As the House is aware, this is the subject of very long standing conventions which are enshrined in the ministerial code, and recognised in “Erskine May”. First, without the authorisation of the Law Officers, the fact that—or indeed whether—their advice has been provided to Government should not be disclosed. Secondly, such advice must not be provided to those outside of Government without the Law Officers’ express authorisation.
The purpose of the conventions is to provide the best possible guarantee that Government business is conducted in the light of full and frank legal advice. This is a fundamental principle of the rule of law. If Government knew that they might be forced to disclose the advice that they had received, it could seriously compromise the sorts of request for advice that would be made, and totally impede the ability of the Law Officers and Government lawyers to provide it. In turn, that would seriously compromise good government.
The motion we are debating today would undermine these vital conventions, and it would do so through the blunt instrument of the Humble Address, an arcane parliamentary procedure which, until very recently, was last used in this way in the 19th century. Moreover, there is real doubt about the ambit of the procedure: as I said earlier, it contains no mechanism by which information can be reviewed to ensure that its disclosure would not seriously harm the public interest. In considering today’s motion, hon. Members must reflect carefully on this—and on the potential consequences not just for this Government, but for all future Governments.
As this House knows, the Government have worked extremely hard to comply with Humble Addresses that have been passed previously. We have also sought to do so in response to the case we are debating today, while at the same time, taking steps to protect the national interest. The conventions that I have spoken about stand and endure because they respect the proper balance between the Government and Parliament—and the principle that Ministers should be as open with Parliament as it is possible to be, provided that disclosure of information does not compromise the wider public interest. We chip away at them at our peril; today’s motion is not in the interests of Members and it is definitely not in the national interest. What we break now may be very difficult to fix later.
The Leader of the House has been commenting on the use of the Humble Address mechanism to compel the disclosure of information. We were told by the Attorney General yesterday that this information would be prejudicial to the national interest. Is it not impossible to debate openly in this House whether that information should be disclosed without knowing what the information is? Would it not be more appropriate to make the decision in a confidential tribunal about what may and may not be disclosed, analogous to a judge making such a decision when a matter of disclosure arises in a court of law?
Again, my hon. Friend points out the problem, which is that the right hon. and learned Member for Holborn and St Pancras’s motion seeks that all the information be placed in the public domain without anyone on either side of the House having the ability to consider whether it is in the national interest to do so.
I want to turn now to the contempt motion itself. We recognise that concerns have been raised as to whether the Government’s response meets the terms and spirit of the motion agreed on 13 November. We consider that the spirit and intent of that motion have been fully complied with. As I said earlier, the Government have now provided a 48-page paper setting out the legal effect of the withdrawal agreement, and the Attorney General came to the House yesterday. Anyone present in the Chamber for his statement and his subsequent responses to questions can be in absolutely no doubt that the Attorney General gave a full—[Interruption.]
Order. The Leader of the House must resume her seat momentarily. Mr Russell-Moyle, you are a very excitable denizen of the House. If you were on your feet, you would be entitled to express your views. When you are in your seat, you are not. I hope that that basic rubric is now clear to you and will require no further explanation.
Thank you, Mr Speaker. Anyone present in the Chamber for the Attorney General’s statement and his subsequent responses to questions yesterday can be in absolutely no doubt that he gave a full and frank exposition of the legal position of the withdrawal agreement. I simply reject any suggestion that the Attorney General has done anything other than treat this House with the greatest respect.
Turning to process, the motion before the House today seeks to find the Government in contempt of Parliament, without having taken the important prior step of referring the matter to the Committee of Privileges, as is normally the case. This is a matter of due process. First, those facing this extremely serious charge of contempt should each be given the opportunity to make their case and to follow the due process of this House. They should be given the opportunity to explain how they have come to their decision about how best to balance the Government’s responsibilities to Parliament with their ministerial duties, including the need to consider the national interest. That opportunity is a vital element of any such procedure, and in this mother of all Parliaments, we are surely nothing if we do not uphold our own constitutional practices in the appropriate way.
The Privileges Committee will also want to consider the question of compliance with the motion in its full constitutional and historical context. The Government would strongly welcome the Committee having the opportunity to consider the more general scope of the motion for the Humble Address procedure, in particular as regards confidential information and the national interest. The Committee could consider these complex matters in a full and impartial way, away from the heat of the present debate and in fulfilment of its parliamentary duty as established by this House. I am grateful to the Chair of the Committee, the hon. Member for Stretford and Urmston (Kate Green), for the conversation that she and I had today in which she agreed that her Committee would be happy to consider that.
The members of the Committee are accustomed to the consideration of complex and contested issues. That is the very essence of their role. Although it would be for the House itself to reach a final determination on whether a contempt had been committed, it should do so on the basis of the full and impartial consideration of the facts by the Committee of Privileges. I therefore appeal to all hon. Members right across the House that if they seek to pass this motion, they should refer it to the Committee in line with our parliamentary procedures. I urge all hon. Members to support the Government’s amendment.
I must say that I found the answers given by the Attorney General yesterday extremely difficult to understand in the terms in which they were expressed—that is, of relating to the national interest, because that is a question that is contained in the results of the referendum and the European Union (Withdrawal) Act 2018. Following reports that I have heard, I also find it most unsatisfactory that this issue is regarded as a parlour game, and that we have been told to stop messing around with the process and to grow up. I think that that somewhat underestimates the significance of what we are dealing with here, but I will leave it at that, because people in these circumstances sometimes use language that underestimates the importance of the matters that are being dealt with.
I would like to say to the Leader of the House and to the Law Officers that the question of conventions turns on the reason for the rule. In this context, the reason for the application of this particular convention, which includes the question of the ministerial code, clearly demonstrates that, unless we know what the Attorney General has actually given by way of a full disclosure, it is extremely difficult to know whether or not the public policy that has been pursued is consistent with the legal advice that he gave.
Ivor Jennings was one of the greatest constitutional authorities on these matters. He said that
“conventions are observed because of the political difficulties which arise if they are not.”
I suggest that nothing could better illustrate the current situation, and in particular the issues relating to the ministerial code. The ministerial code states:
“The Law Officers must be consulted in good time before the Government is committed to critical decisions involving legal considerations.”
The Chequers proposals lie at the heart of the beginnings of the issues with which we are considering the withdrawal agreement, and I have been informed that the Law Officers were not consulted before the Chequers proposals. This has had dire consequences. Indeed, I said to the Prime Minister on 9 July that I did not think she would be able to reconcile the Chequers proposals with the express repeal of the European Communities Act 1972 in the European Union (Withdrawal) Act 2018, which was passed on 26 June, 16 days before Royal Assent was given. We were then presented with the Chequers proposals. Everyone knew, when Royal Assent was given, that the express repeal of the 1972 Act had been enacted, yet it was clear, because it happened only a few days later, that an 80-page White Paper was being produced, the effect of which was to demonstrate that the 1972 Act was going to be considerably altered. I regarded that as a massive breach of trust, but it could have been resolved if we had had the full advice of the Attorney General at that time.
Under that same convention, and with respect to the present withdrawal agreement, it is essential for us to know now whether the present Attorney General gave advice on the issue of incompatibility between the express repeal of the 1972 Act in the European Union (Withdrawal) Act and the withdrawal agreement. There is no indication in the Attorney General’s introduction to his legal statement yesterday that he addressed that question as a matter of fundamental constitutional importance. Indeed, he states that the agreement needs a new Act of Parliament in domestic law, but as I pointed out in The Sunday Telegraph that is no more than a wing and a prayer.
I asked the Prime Minister about such matters during her statement last Monday and in the Liaison Committee, but I received no satisfactory answer. I also asked the Attorney General a similar question yesterday, requesting that he draw his attention to a Queen’s bench division that was cited as a precedent for the disclosure of the Attorney General’s advice. There are four other precedents, but Factortame is particularly significant due to the incompatibility between the 1972 Act and the withdrawal agreement.
If we do not have the full disclosure of the Attorney General’s opinion, that is relevant to the question of whether the actual withdrawal agreement itself is invalid under the Vienna convention, because a fundamental failure to comply with internal domestic constitutional law amounts to grounds for the invalidity of such a withdrawal agreement.
Will my hon. Friend give way?
Just one moment. If there is a danger that the withdrawal agreement could be invalid, that is a matter of fundamental importance on which I would have expected the Attorney General to include his opinion, but there is no evidence whatsoever that he referred to that in his opinion, and that is why we need full disclosure. I also understand that there are sheaves of papers within governmental circles unpacking the repeal of the 1972 Act with respect to the prospective withdrawal and implementation Bill, which is again a matter of extreme public importance. By any standards, all these matters fall not only within the ministerial code, but within what I would have hoped and expected the Attorney General to deal with in his opinion and the statement he gave yesterday, but there was nothing there to give me any comfort whatsoever.
To say that we should move on and get real and that what the Attorney General thinks is in the national interest actually is in the national interest does also bear on the question of whether the European Union (Withdrawal) Act is a matter of extreme public interest and fundamental importance. The failure to address that question in the introduction and in the legal statement seems to be a mistake of the first order and, furthermore, to be inconsistent with what I would have expected from the legal opinion of the Attorney General.
As to the role of the Attorney General, I simply refer to the authoritative work “The Attorney General, Politics and the Public Interest”, published in 1984 and written by Professor John Edwards. In his chapter dealing with ministerial consultations with the Law Officers, it is made clear that all legal advisers from all Departments will ultimately turn on the view of the Attorney General. Edwards states that there will be times when the Attorney General, perceiving the legal implications of a Department’s proposed course of action—in this case, No. 10 and the Department for Exiting the European Union—will find it necessary to oppose a Minister’s preferred policy. Such opposition must also derive from the legal implications of the proposed policy.
As Edwards says on page 190 of his authoritative work, for the Government to reject such advice would be quite exceptional and would reasonably lead to serious questioning by the Attorney General himself of his continuing to serve as the Government’s chief legal adviser. Without full public disclosure of his opinion, it will be impossible to get to the bottom of all the considerations that are at the heart of the issue of public trust to which the former Secretary of State for Exiting the European Union referred regarding the manifesto and the reasons for his resignation and the conduct of the Government, to which I have referred myself in terms of broken promises made in the House recently.
The reason why my European Scrutiny Committee is making a full inquiry into this situation is, in a nutshell, because we want to get to the bottom of the conduct and the processes and the outcome of these negotiations, and we will do so by taking evidence. I trust that the Government will take note of the seriousness of the suggestions and the arguments that I am putting forward, because they go to the heart of public trust, the referendum vote itself, the repeal of the 1972 Act, whether the Attorney General has fully addressed the consequences for the withdrawal agreement of the opinion that he has given, which we have a right to see, and whether it is really in the public interest for it not to be disclosed.
I commend those hon. and right hon. Members who secured this debate and thank you, Mr Speaker, for allowing it. I also pay tribute to the stamina of my hon. Friend the Member for North East Fife (Stephen Gethins) and of other colleagues who ensured that you had ample time last night to consider the response to the original application.
Later today, we begin five days of debate on possibly the most important peacetime decision that this Parliament will ever take. Also today, Ofsted has described the Government’s treatment of thousands of vulnerable schoolchildren in England as a “national scandal”, we have a major investigation into alleged profiteering by funeral companies, and we have had reports from the UN special rapporteur and the Joseph Rowntree Foundation highlighting the appalling poverty that exists here in one of the wealthiest economies on the planet. What does all that have to do with the motion before us now? The only reason why we are allowed to know and discuss those things openly and without fear is because the power of the state to prevent us from knowing about them is tempered by the rights of this democratically elected Parliament—not tempered nearly enough in my humble opinion. Elections to this Parliament are not democratic enough, but we do have an elected Parliament to hold back the excesses of the Government, and that is what today’s motion is all about.
We have a Parliament of 650 people, and each of us is entrusted to exercise sovereignty on behalf of those who have sent us here. A contempt of this Parliament is a contempt for the fundamental principle of the sovereignty of the people. A Government who seek to place themselves above the express will of Parliament are a Government in contempt of the people. They are a Government who have already taken a dangerous step down the road from democracy to dictatorship.
Today’s debate is not about the rights and wrongs of the original motion presented to the House on 13 November. Astonishingly enough, the time for debate on those questions was on 13 November. Let us not spend time today on questions of convention and precedence, of the confidentiality of legal advice or of when that confidentiality should be waived. The time for opposition to the terms of that motion was when that Question was put to the House, but the Government instructed their MPs to do nothing. They instructed their Members not to oppose the motion. I welcome the degree of humility that they have shown in admitting that they got that wrong, but that admission is not an excuse for the Government unilaterally to seek to change the wording of or meaning behind a binding decision of this Parliament. They have the audacity to come here yesterday and today and say that they, not Parliament, know what Parliament decided. They are placing themselves above Parliament. That is a contempt of Parliament.
As for the “legal position” document published yesterday that was going to fix it all, it could hardly have been more patronising if they had included pictures to colour in and wee join-the-dots puzzles every so often just to keep us interested. It was not a legal position by any accepted definition. It was possibly an attempted sop to some Conservative MPs, who are in a very difficult position—struggling between their understandable loyalty to their Government, to their party and to individual Ministers and their overriding loyalty to the people and to this Parliament.
As the right hon. and learned Member for Holborn and St Pancras (Keir Starmer) said, the Government have made a habit of not turning up if they think they are going to lose. Maybe the problem is that they are so used to being allowed to ignore the views and opinions of Parliament that they forgot that sometimes Parliament takes decisions they are not allowed to ignore. Maybe that is why they are so upset now. Maybe it is because, alongside the issues of what should and should not be made available to Members of Parliament and to the public, this decision has laid bare the incompetence at the heart of a Government who do not even know the basics of parliamentary procedure.
Does the hon. Gentleman’s commitment to openness now mean that he will be asking the Scottish Law Officer to publish all her advice to the Scottish Parliament in future?
I have absolutely no doubt that, if the Parliament that represents the sovereign people of Scotland gave a binding direction to the elected Government of Scotland, the elected Government of Scotland would comply with that binding direction. No such binding direction has been given, so let us not try to deflect attention from the clear and blatant contempt that has been committed against this House with completely false accusations of contempt elsewhere.
We have a Government who are behaving like a football team who do not turn up for friendlies if they think they will be beaten and then discover that they have missed a cup final and have forfeited the tie with a notional 3-0 score. Not only are they asking to be allowed to replay the final, but they are complaining that the score is void because the three notional goals would all have been offside if they had been there to defend them.
We are not talking about a game of football with a trophy at stake, and we are not talking about the sanctity or non-sanctity of the confidentiality of legal advice; we are talking about the most fundamental principle that governs our nations, the principle that Parliament can tell the Government what to do, not the other way around. This is not just some temporary individual aberration; it is part of a pattern of Government attempts to keep Parliament out of this altogether. They want to restore sovereignty to Parliament by keeping Parliament out of its own sovereignty.
The Government went to the Supreme Court to stop us having any say on the triggering of article 50, and they lost. They did their damnedest to stop Parliament having any say on the withdrawal agreement, and they lost. They spent thousands of pounds of our money trying to prevent a group of Scottish parliamentarians from finding out whether article 50 can be unilaterally revoked, and they lost. The Court of Justice of the European Union will now almost certainly find that article 50 can be revoked.
I pay tribute to the parliamentarians from five political parties and three national Parliaments who took that case to the Court. What they have won will prove to be a pivotal victory, but it raises a question that is too important to be treated as rhetorical, and a question that is highly pertinent to the substance of today’s debate. What kind of Government go to court to prevent their own citizens from knowing that the Government have legal powers but have chosen not to use them? What legitimate reason can there be for a Government to want their people to believe something is legally impossible when the Government already have legal advice telling them it is perfectly possible?
This morning’s preliminary opinion from the CJEU is simply another example of this Government’s attitude that the path they have chosen unilaterally is the only one worthy of consideration and that nobody is even allowed to know that other paths might be possible. They have their priorities completely wrong. They repeatedly tell us, and the Leader of the House said it often enough in moving the amendment, that their ultimate duty is to act in the public interest, but in fact they are demanding that Parliament and the public act at all times in the Government’s interest—that is not the same thing at all. The Government, and not the Parliament that holds sovereignty on behalf of the public, have taken upon themselves the right to decide what is in the public interest. The Government declare themselves to know better than Parliament what is in the public interest. The Government place themselves above the decisions of Parliament, and they place themselves in contempt of Parliament.
Early next year we will see the 370th anniversary of the day when a crowned king of Scots was executed, just a few hundred yards up the road from here, for defying the will not of this Parliament—this Parliament did not exist then—but of one of its predecessors. I do not think anyone is suggesting a similar fate for those who are found in contempt of this Parliament, but we should be under no illusions about the gravity of what we are discussing, and we should be under no illusions as to how the mockery from the Conservative Benches is being perceived by those who believe this Parliament should be allowed to tell the Government what to do.
The elected Parliaments of our four nations, for all their faults, flaws, imperfections and ridiculously outdated, arcane procedures that the Leader of the House sometimes does not like, represent the rights of our citizens. No one, but no one, has the right to wield power over the people without the consent of the people. In a parliamentary democracy, that consent is expressed through Parliament, not through the office of the Prime Minister or any other office of state.
When Parliament speaks, it speaks on behalf of the people and the Government must listen. When Parliament instructs, it instructs on behalf of the people and the Government must comply. Parliament has spoken, and the Government must listen. Parliament has instructed. It has not asked, opined or suggested; it has instructed. The Government can disagree, moan or complain as much as they like, but they must comply with the instruction of Parliament.
Instead, the Government seek to defy the instruction of Parliament. They seek to defy the sovereignty of the people, as expressed through their elected representatives. It is now for Parliament to take the only course of action open to us to compel the Government to back down.
I apologise at the start, because I will have to absent the Chamber quickly to chair the Finance (No. 3) Bill Committee.
I begin my short remarks by referring to the comments made on the radio this morning by the right hon. Member for Carshalton and Wallington (Tom Brake). He conflated the Iraq war debate and the legal advice that was then issued with what is happening now, but the advice that was then issued, wrongly, by the previous Administration and that resulted in Members of this House going into the Lobbies misinformed and without the required information was about the legalities of the Iraq war, whereas this, as the Attorney General made clear yesterday, is a political decision, not a legal decision.
The comparison was about the risk of cherry-picking, and I do not think anyone would argue. On the Iraq war, the position set out by Lord Goldsmith cherry-picked the advice to maximise the Government’s position and to press their case.
I do believe that the two issues were conflated and that that was used to argue for revealing the legal information on the wrong predication.
I have been in a quandary about the vote today. I would like to see the full legal evidence, as I am sure everybody in the House would, but there are conventions and other people to consider, and civil servants fall into that category. They serve us all with true and absolute independence. I do not know how any Government would ever be in this place if we could not depend absolutely on the impartial legal advice we receive from civil servants. If this motion was passed today, what civil servant or legal adviser would ever want to advise any future Government without first putting in place a filter of self-preservation, by considering the advice they give? Who would want to do that as a civil servant? Although I would love to see this legal advice, we have a duty to consider others: the people who serve both the public and us. I have 100% respect for civil servants. They work amazingly hard; they are truly independent; and they serve us without any political bias, and that should absolutely be considered.
On the public interest and the points the Attorney General made yesterday, none of us, apart from him and a select few, knows whether there are any issues in that legal advice that pertain to intelligence, national security or any other of those issues. I have to assume only that when he spoke yesterday about public interest, he was talking in the much broader context. This is an important issue. As he said yesterday,
“There is no procedure by which this House can have redactions or entertain circumstances in which it could weigh the competing public interest against the interest in disclosure, as a judge would do.”—[Official Report, 3 December 2018; Vol. 650, c. 557.]
Given what happened with the publication of the summary of the legal advice during the Iraq war, this inevitability that is happening today should have been foreseen then. We live in a changing world, one where people demand transparency and have a right to know all the full information. I believe that a resolution should have been passed in this House to give powers to this House—after all, Parliament is a court—and a process in this House whereby this House, probably through the authority of your office, Mr Speaker, via the Clerks and independent judicial advice, should be able to take a decision and redact matters of national intelligence and security from legal advice, so that people in this House can see legal advice. I hope that as a result of what has happened today, and given that demands to see legal advice will be made again in the future, the House will take cognisance of that and decide to pass a resolution that will ensure that we do not find ourselves in this position again.
As far as I am concerned, we have been told the worst; the Attorney General pulled no punches. He said:
“There is nothing to see here.”—[Official Report, 3 December 2018; Vol. 650, c. 557.]
But he told us what needed to be seen, so let me again quote his words. He said:
“There is therefore no unilateral right for either party to terminate this arrangement. This means that if no superseding agreement can be reached within the implementation period, the protocol would be activated and in international law would subsist even if negotiations had broken down.”—[Official Report, 3 December 2018; Vol. 650, c. 547.]
He told us the worst: we will be in the backstop in perpetuity. That was as bad as it gets. If we cannot withdraw from the backstop following the decision of this House, we are trapped, as somebody said from a sedentary position yesterday. I believe that no MP with any conscience, given what the Attorney General told us yesterday, could vote for the withdrawal agreement, because he pulled no punches—he told us the worst it can be. I commend him for that.
I want to finish, because I have to, with a comment about us. I listened to the right hon. and learned Member for Holborn and St Pancras (Keir Starmer) when he said what he said at the Dispatch Box. One day, and I hope he is white in hair and long in tooth before he gets there, he may be the Attorney General, and his words may come back to haunt him at some time in the future. I have watched him many times and I could see that thought going through his mind. As a former legal adviser to one of most eminent law firms in the country, he knows full well, when stands at that Dispatch Box, what he is saying and what he is doing. I hope you never find yourself in the position that you have put our Attorney General in. I would like to finish—
Order. I cannot quite understand why the hon. Lady thinks that someone of my limited capabilities aspires to the high office of Attorney General.
I should know better, Mr Speaker, and I apologise. I would like to finish by saying that before we are Attorney Generals, Mr Speakers and Front-Bench spokesmen, we are all MPs—we are all elected Members. I believe that the Attorney General came to this Dispatch Box yesterday with honour and in good faith, and he was honest. If this motion is passed, the integrity, reputation and honour of a good man will be traduced. It would be a disgrace for this House to do that, because any one of us may one day be in that position. I hope that this motion does not pass today for that reason.
It is a pleasure to follow the hon. Member for Mid Bedfordshire (Ms Dorries). I do not agree with the main thrust of what she said, but she did make some useful and pertinent comments about what the Attorney General said yesterday in terms of the analysis of where we find ourselves. I agree with her and with other right hon. and hon. Members who have praised the Attorney General, his candour, his honour and what he brought to the House yesterday in terms of more truthfulness about what this deal actually means. By contrast to others who have been prepared to say things to the press and media, he came here, as a member of the Cabinet, and told us some of the unvarnished truth about this agreement. So I praise him for that and join the hon. Lady in what she has said, as I went through the adjectives that he used in his devastating commentary yesterday. He said that this deal was “a calculated risk”; that it was “unattractive”, “unsatisfactory” and “undesirable”; that it provided “no unilateral” exit clause for the UK; and that it was indefinite, with
“no unilateral right…to terminate”. —[Official Report, 3 December 2018; Vol. 650, c. 557.]
Yet he asked us to take it on trust that it would all never happen because, believe it or not, having spent 18 months negotiating all this, the EU and the Irish Government do not actually want to implement any of it.
The fact is that despite all the candour and all that was said yesterday, coming to this House to make an oral statement lasting two and a half hours and taking all the questions and providing the reasoned position paper does not actually fulfil the order given by the motion that was passed by this House, which was for the final and full advice provided by the Attorney General to the Cabinet to be published. The Government may not like the fact that that was passed by this House, but they cannot simply wish it otherwise.
During the debate on 13 November, they argued that they would do precisely what they have now done, and that was rejected by the House—the House passed a different motion. We do not particularly single out the Attorney General here, because, as he said in his statement yesterday, he wished that he was not in the position he was in. The Government as a whole are collectively responsible for deciding that they would simply ignore this binding, effective motion and revert to doing what they said they would do during the debate. Frankly, that cannot be allowed to stand. We have heard a lot of talk about precedent and about conventions of this House and respect for all that—surely, this is one area where the Government must respect the will of Parliament. They simply cannot set it aside.
The right hon. and learned Member for Rushcliffe (Mr Clarke), the Father of the House, in his intervention earlier, made an interesting and positive contribution about a way around this. Interestingly, the Government did not take that up. They did not take it up during this debate and they have not taken it up previously, so clearly it appears they are not interested—they certainly have not said anything publicly up to now—in taking that suggestion forward. What they have done is say, “No, no, it doesn’t matter what is said by this House. It doesn’t matter what other suggestions are out there. We are going to stick to the plan.” Obviously, the Government have a grid somewhere, where it is on the plan that they will publish this reasoned summary position paper and have a statement, and that is it. This House will have the final say, and I hope that it will reiterate what on 13 November it ordered to be done.
We are told that this situation is unprecedented. It was said in the other place yesterday that such advice can be published in exceptional circumstances. I have also heard the argument used that the advice is privileged, but of course in the lawyer-client relationship privilege belongs to the client, not to the lawyer—not to the person giving the advice. The lawyer has a duty to protect the client’s privilege, but the reality is that if the client waives that right, the lawyer—the provider of the advice—is quite at liberty to disclose it. So the argument about privilege is bogus.
The Attorney General said yesterday that he wished he could comply with the order of the House, but that it is not in the national interest or the public interest. I am afraid it is not the duty or job of any Minister to decide that. The House has decided what it wishes to do and it is not for a Minister unilaterally to override that with no good reason.
The right hon. Gentleman is a patriot, and he therefore understands national security and the national interest. Does he agree that it is quite probable that in the legal advice that the Attorney General gave to the Government would have been an analysis of the strengths and weaknesses of the Irish Government’s position and that to publish that in full would hand to the Irish Government an advantage in any subsequent negotiation?
I think the massive advantage to the Irish Government, other Governments and the European Commission in respect of future leverage over the negotiations is handed over in the withdrawal agreement. I do not accept what the hon. Gentleman says, because the Attorney General went on the record yesterday to say:
“There is nothing to see here.”—[Official Report, 3 December 2018; Vol. 650, c. 557.]
So there is obviously nothing of concern about national security in his advice. That is what he said himself.
The reality is that we had this debate on 13 November. The Government had the choice to vote against the motion and decided not to because they feared they would lose the vote. Their abstaining from a vote on an Humble Address cannot invalidate the motion, because that would set a very serious precedent.
Some of the legal advice that the Attorney General has given to the Cabinet—the advice it is crucial that we must have—has already been leaked by members of the Cabinet to the press and media. I think the Attorney General accepts that. The reality is that members of the Cabinet have already released to members of the press and media some of the advice given by the Attorney General in terms to the Cabinet. The Attorney General is somewhat estopped, if I may use a legal term, from saying that the rest of us are not entitled to have that advice. If some members of the media and press are entitled to have it, Members of this House are entitled to have it.
Does my right hon. Friend agree that as the Government and the Prime Minister are going around the country trying to convince the populace that it is a good deal, this secretive approach only confirms in people’s minds that there is something to hide? If anything, the Government are scoring an own goal by refusing to publish the advice.
I thank my right hon. Friend for that intervention. Indeed, that very point about the Government actually scoring a massive own goal, in their own terms, has been made not from these Benches but by a former Cabinet Minister on their own side and by many Government Members. My right hon. Friend sums it up very well. What is there to hide? Given that the Attorney has said that there is nothing to see and given the fact that the clear motion was passed by this House, it is now vital that that decision is enforced and the bogus arguments against it rejected.
I am not sure that members of the public who come to watch our debates necessarily appreciate our role as the High Court of Parliament, but that is what we are. By virtue of history, we have been given a whole range of powers normally enjoyed only by others of Her Majesty’s courts, by which we regulate our affairs and maintain our own privilege—which also means, by virtue of the Bill of Rights of 1689, that we cannot be impugned in any other court—and by which we have coercive powers for dealing with those who transgress in front of us, and that can include Government Ministers. The difficulty we have—I say this having served on the Standards and Privileges Committee and having also been a Law Officer—is that our powers are entirely archaic, almost completely un-useable, and in many cases so old-fashioned and antiquated that any attempt to use them would probably run foul of most modern principles of justice. I am afraid that this situation has been allowed to prevail for decade after decade by a mixture of a failure of the House to grip the problems it faces and, of course, the happy complacence of Government, who have known that in reality the teeth are not really present for this House to be able to assert its authority.
Nowhere do we see all that come to a head more than with this issue. It is all very well criticising the right hon. and learned Member for Holborn and St Pancras (Keir Starmer) for using a blunt instrument, but there are only blunt instruments to be used. He was fully entitled to table the motion and to seek from the Government the documents that he wanted. The Government chose—slightly to my surprise, I have to say—not even to oppose the motion, even though there were compelling arguments that could be presented. Indeed, I continue to be of the view that the Law Officers’ advice should not be published because it undermines the ability to provide proper confidential advice to Government.
That said, the method that was adopted—this may simply have been because of the speed with which the drafting took place—was undoubtedly very blunt. Given its ordinary meaning, as I interpret it the Humble Address extends not just to the Attorney General’s advice but to every bit of advice about the development and impact of the withdrawal agreement that was provided through the civil service to Government at any time during the two and a half years of tortuous negotiations with the EU. I have no doubt that most of that advice is unlikely to be of great relevance to what the House wanted to see. Moreover, some of it may undoubtedly contain confidential material that, if put in the public domain, could well jeopardise the national interest. To take an example, I do not suppose that the House would seriously contemplate requiring the Government to disclose the name of agents who work for MI5 or MI6. But we have to face that fact that this House does have the coercive power to make such a request. That highlights not only the untrammelled nature of the House’s sovereignty but the extent to which it can be open to abuse.
During the course of the debate on the Humble Address, I think the right hon. and learned Member for Holborn and St Pancras became aware that the terms of the motion were rather widely cast, because at that point he restricted them to seeking
“the final and full advice provided by the Attorney General to the Cabinet concerning the terms of any withdrawal agreement.”—[Official Report, 13 November 2018; Vol. 649, c. 235.]
Having been a Law Officer and supplied advice to Government, I simply make the point that although it may surprise the House a little, I have simply no idea whether there ever was a final and full advice of the kind that was identified. In my experience, the advice provided by Law Officers comes in a continuous stream of dribs and drabs which, by letter to the relevant Department, to the Prime Minister and, if necessary, to the Cabinet, touches on a multiplicity of things without necessarily being drawn into a whole. I must say, therefore, that what is being sought is about as easy to measure as the length of a piece of string. It is not at all clear what the motion was seeking to grab on to, although I accept that in so far as it was seeking to acquire the original documents of some of the advice that was provided, it is manifestly clear that it has not been complied with; that is apparent.
Faced with that problem, where should the House go? Within this House there will, of course, be differences of view: the Government wish to protect their position; and the right hon. and learned Member for Holborn and St Pancras and all those on the Opposition Benches, and indeed some on my own Benches, who wish either to embarrass the Government or just to see this information, are going to be profoundly dissatisfied. The question of the culpability of Ministers is in any case not uniform. In defence of my right hon. and learned Friend, the Attorney General, he is not a member of the Cabinet, although he attends Cabinet, and, as the point has been made, he is covered by legal and professional privilege when it comes to disclosing the advice that he provides to his client. The one person who cannot be blamed for this mess is him. He came along to provide the best explanation he could yesterday, but the fact is he is not responsible for making the decision as to whether the documents that the House wants are disclosed. I assume that that may have been a collective decision of the Cabinet, although knowing the way that the Cabinet works, I am not even sure that that is necessarily the case. It may be an individual Minister, or it may indeed be my right hon. Friend the Prime Minister. Whichever it is, this also emphasises the blunt nature of the instrument, which is then reflected in the motion that has been brought before the House today.
Referring the matter to the Committee of Privileges may be seen to be getting the Government a little off the hook, but it is not a stupid course of action. I can, I am afraid, anticipate a little how it is likely to progress because, in its session, the Committee of Privileges will immediately come to the awareness of just how complex and bedevilling this entire area is because of the lack of clarity of both our Standing Orders and the processes of this House. However, simply to go ahead without doing that and to move to a statement of contempt—I am not quite sure and it has not really been explained where, if that is passed, we would proceed next—does not seem to me, on balance, to be the better course of action. I say on balance because I have sympathy with the position of the right hon. and learned Member for Holborn and St Pancras. However, I acknowledge that, on the face of it, we have processes in this House and if this House is to work properly, they should be capable of being met.
What this highlights over and over again for me, and has done for many years since I came here and particularly after I became a Law Officer, is that our processes and powers bear no relation to the real world in which we have to operate and that, as a consequence, they can cause serious injustice. That is something that all of us should be very careful to prevent.
May I start by praising the Attorney General for spending more than two hours answering questions, but may I also gently chide him for the manner in which, occasionally, his style of delivery descended rather into Vaudeville? Finger-pointing, faux bonhomie and expansive arm gestures may work in court, but perhaps he might like to leave those at the Bar of the House.
The Leader of the House referred to an arcane procedure and Government Members have talked about Opposition Members playing parlour games. The arcane procedures and the parlour games to which the Government Members refer are about holding the Government to account on a matter of contempt. Arcane they might be, but, clearly they are essential as well. Members will know that Parliament’s bible, “Erskine May”, makes it very, very clear that the Government’s actions are in contempt. The Government’s refusal to release the advice is an act that impedes the House in the performance of its functions, and what could be a more important function for this House than to be able to take the decisions in the next week or so in full knowledge of the impact of Brexit having seen the full legal advice on Brexit? That is why we are here today. That is why, Mr Speaker, I wrote to you on 28 November and subsequently signed the joint letter raising this issue of contempt.
The Government came forward with a reasoned position paper. The right hon. and learned Member for Beaconsfield (Mr Grieve) did a good job of explaining quite how complex and extensive the legal advice is that the Attorney General will have received, but that rather reinforces the point that the Attorney General’s producing a synopsis of said extensive legal advice spread over much correspondence runs the risk of presenting that synopsis in a way that is most advantageous to the Government. In relation to my intervention on the hon. Member for Mid Bedfordshire (Ms Dorries), who is no longer in her place, the only point that I was making again—I am very happy to get it on the record again—in relation to the advice about the Iraq war is that, clearly, that advice was cherry-picked, massaged and presented in a way that reinforced the Government’s case. That is the only comparison that I am making, with the possible risk of the Government, unintentionally perhaps, doing exactly the same thing in relation to the full legal advice that Ministers have seen—and indeed that Ministers have leaked. While a reference was made to that leaking, the Attorney General simply shrugged his shoulders as if leaking that advice selectively to the media by the Government is perfectly normal and acceptable in the daily course of Government business.
We know what happened in relation to that advice about the Iraq war, and, as for the Government’s amendment, we know clearly what the purpose of that is. Even with undue alacrity, the prospect of the Committee of Privileges addressing this before 11 December is precisely nil, so we will clearly not get that clarity, guidance and direction to the Government before 11 December. I must say that I suspect that that is what motivates the Government in pushing that amendment. This is, of course, a pattern of Government unwillingness to allow Members of Parliament access to the legal advice that we need in order to take the decisions that we need to take. The article 50 case is a very good example of that, as the Government have repeatedly refused to say whether article 50 is revocable, hiding behind the fact that they will not seek to revoke it, so Parliament does not need to know. I am very pleased that, today, the Advocate General has given a recommendation—it is only a recommendation, but one that is very likely to be adopted by the Court—that makes it very clear that article 50 is revocable. For Members of Parliament voting next week, it is critical to know whether, if a people’s vote is secured and if, at the end of that campaign, people vote to stay in the European Union, we have a means of revoking article 50 to bring that into effect.
On that point, does the right hon. Gentleman believe that the Attorney General gave advice to the Government on the revocability of article 50 and has hidden that advice from this House, and that is why we have not had that disclosure?
All we know for a fact is that a number of Members of Parliament, including, I suspect, the hon. Gentleman, have repeatedly asked the Government to confirm their position on that and they have not been willing to do so, which is why, on these Opposition Benches, we very much welcome the fact that the European Court will resolve this matter in the next couple of weeks.
Just on that issue of article 50, I wanted to thank the hon. and learned Member for Edinburgh South West (Joanna Cherry) for leading that charge, along with Members of the Scottish Parliament, and indeed also the hon. Member for Nottingham East (Mr Leslie), who is not in his place today but who has joined me in a supporting role to the hon. and learned Lady.
I am really pleased that the right hon. Gentleman, my hon. Friend the Member for Nottingham East (Mr Leslie) and the hon. and learned Member for Edinburgh South West (Joanna Cherry) took the risk of taking this case to the Court to establish an important principle. If the decision now is in line with the advice that is being given, then that is in the interests of the democracy of this country. We should all register our thanks to him and the other Members.
I thank the hon. Gentleman for registering those thanks.
The critical point for Members of Parliament to know is that, if we go beyond 21 January without a deal and start going down the track of no deal, it is open to this House and this Government to revoke article 50 to avoid a catastrophic exit from the European Union. I would argue, and many Opposition Members have argued, that we are entitled to know that information, and it is remiss of the Government to have kept it from us.
To conclude—[Interruption.] I knew that would cause celebration on the Government Benches, so I will speak for a little longer than I had intended. I accept that it is not a simple choice that Members have to make today. Publishing the full legal advice has serious implications—of course I accept that, and I think everyone on these Benches accepts that—but the ramifications of the Government ignoring the express demand of Parliament are of even greater import. That is why I urge Members to vote for the motion today.
I think we need to start with why parliamentary privilege is so important, particularly those of us on the Government side, because there will come a time when we are not on the Government side, at which point the protections provided for us by parliamentary privilege are all the more important. Governments who run roughshod over parliamentary privilege when they are in government find that, when they are in opposition, their position is much harder to defend and uphold. When the Conservatives were in opposition, we disliked the streamlining of parliamentary procedures that made it easier for the then Government to get legislation through, because we found it harder to have the full debates and discussion that we wanted—the ability to discuss and sometimes even to delay things to which we were deeply opposed. That was a loss to us in opposition, even though it was a benefit once we were back in government.
My right hon. Friend the Lord President of the Council mocked the Humble Address procedure on the basis that it was ancient, but every morning when we come into this House and pass through security, we are exercising a right that dates back to 1340. Whether we have our pass on or not, we are entitled to come into this House and nobody is entitled to obstruct us. This is an important right because in times less benign than ours, people have wanted to obstruct Members coming into Parliament. We sit in a House where there is a very slim margin and it may be that, rushing back for a Division—perhaps a Division of confidence in the Government—somebody obstructs Members coming in. That would be a breach of our privilege and, though it is one of our most ancient privileges, it is actually a great safeguard of the proper democratic operation of this House.
We heard from the Treasury Bench and from other right hon. Members a very good argument for why the Humble Address should not have been passed in the first place, but today is the wrong day for that debate. That debate should have been held on 13 November and voted on, or not, according to whether or not it were the will of this House for the Humble Address to go through. The tradition of Humble Addresses is very clear—that the Humble Address is followed. Now, that does not mean that this House is irresponsible in passing Humble Addresses. We have heard suggestions that we might seek information from the security services. This House has never passed a Humble Address of such an unwise kind.
Although I am not, dare I say, the greatest admirer of the socialists on the Opposition Benches, I accept that they are responsible enough not to wish to endanger the security of our nation, but that Parliament has the power does not mean that Parliament will exercise the power. Indeed, and importantly, this House constrains its right of free speech in relation to the sub judice issue. We have passed Standing Orders, and we give power to Mr Speaker, to stop hon. and right hon. Members breaching the sub judice rule in order to ensure that the system of justice in this country proceeds properly. Likewise, we are entitled to limit the means of Humble Addresses and the information that can be received from a Humble Address, but we did not do so before 13 November. Therefore, what happened on 13 November ought to be complied with, because if we simply say that motions of this House according to great antiquity and precedent can be ignored because the Government feel like it, what is this House here for? How are we protecting the rights of the people we represent? How are we able to seek redress of grievances?
The Humble Address may have been unwise. Indeed, had there been a Division on 13 November, I would have voted against revealing the Attorney General’s information and advice to the Government. I did not think that the Humble Address was well advised, but the Government decided to accept the motion. Having done so, it was not then up to the Government to say that it was not in the national interest to do so. I am afraid that is a classic confusion; the Government interest and the national interest are different things. The Government interest is a political interest, and the national interest is a higher interest. In my view, the national interest is better served by respecting the privileges of Parliament than the convenience of the Law Officers. Therefore, in the national interest—not the government interest—this legal advice ought to be produced because Parliament has said so.
This is clearly a right that this House has. Every Select Committee has the delegated right to send for persons and papers, and this is simply an exercise by the whole House of requiring that papers be produced. But the Government, with their majority—perhaps a majority they cannot always achieve, but at least with a technical majority thanks to our friends in the Democratic Unionist party—ought to be able to stop any papers being produced that they believe are too confidential. Indeed, it is still open to the Government to bring forward a motion suggesting that the previous motion be overturned; there is precedent for overturning a Humble Address and seeking to do the opposite. There is a proper process for the Government to follow if they do not want to release these papers, rather than sticking their feet in the mud and saying no.
Then we come to the motions before us today, and here I agree with my right hon. and learned Friend the Member for Beaconsfield (Mr Grieve). I do not think that the motion before us actually works because it is too indistinct about who it is criticising—that is, it is criticising Ministers broadly, rather than the ones specifically concerned. The motion needed to be more specific about who it was objecting to and who it was holding in contempt, and indeed it ought to have used the rights of Parliament to inflict some punishment on the person who is deemed to be in contempt.
If the hon. Gentleman feels as he has described, why did he not table an amendment to the motion in the name of my right hon. and learned Friend the Member for Holborn and St Pancras (Keir Starmer), setting out what he thinks ought to have been done?
Because the Government have tabled an amendment that I feel I can support—[Interruption.] We are not in pantomime season quite yet. [Hon. Members: “Oh yes we are!”] All right, I give in on that one. I am defeated on that particular point, but not on the substantive one.
I am happy to support the Government’s amendment, because I think it is right that a Committee of this House look at the issue in broad terms. It may be right that the House wishes to take a self-denying ordinance on the extent of Humble Addresses. It may be that we would like to say specifically that they would be deemed disorderly, and therefore not tabled, if they related to matters concerning the security services or other types of information where there would be a broad consensus that those matters should not be brought forward. The ability to demand papers could require—dare I say it?—that the tax returns of Opposition Members be brought to the House—[Interruption.] Mine would be of so little interest that I cannot imagine it happening. That would be a clear abuse of the precedents that we have. So it may well be right that the Privileges Committee should consider broadly how Humble Addresses should be used to ensure that they are effective, because currently they ought to be effective and the Government ought to abide by them.
I am following my hon. Friend’s remarks with a great deal of interest. He will know, since he is an expert on “Erskine May”, that it says very clearly on page 168, from memory, that the Humble Address should not normally be used on matters that touch directly on Bills before Parliament, as this clearly does. So was the Humble Address being used correctly, in his view, or incorrectly?
I am sorry to say that my hon. Friend is not quite right. There is not a Bill before Parliament on this issue—there is a motion before Parliament on this issue. Those two things are clearly separate matters that are not to be confused. I have no doubt, Mr Speaker, that had a Humble Address been brought forward on a Bill before Parliament, it would have been ruled disorderly and therefore would not have been a subject for debate. For the benefit of the Hansard reporters, Mr Speaker is nodding, and I therefore hope that this can go into the record as an authoritative reply.
I have one concern about the reference to the Privileges Committee, and that is of course that the Attorney General is himself a member of that Committee, though a non-voting member who does not affect the quorum.
The Law Officers would recuse themselves from any such meeting.
I am extremely grateful for that. It gives me complete confidence in supporting the Government’s amendment. But I absolutely reiterate that, however the vote goes today, the Humble Address must be obeyed unless overturned. For the Government to fail to do so would not be treating Parliament properly. We on the Government Benches must remember the great need for us, when we are in power, to defend the rights of Parliament for those occasions when we will not be.
The question before us is whether there is additional information that was in the legal advice that is relevant and pertinent to the crucial question that we must ask ourselves in voting on the withdrawal agreement. Against that, the Government have suggested that there are security and national interest matters to defend. The motion says that Ministers should provide
“the final and full legal advice provided by the Attorney General to the Cabinet concerning the EU Withdrawal Agreement and the framework”.
That does not imply that every email and every jot and tittle is required. In terms of national security and the national interest, that means that there is not a great risk.
The question is whether there is a reason to believe that critical legal advice has been withheld. I suggest that there is such a reason. Yesterday, I put it to the Attorney General, following advice from counsel in two chambers, that the European Union (Withdrawal) Act 2018 gives the Prime Minister the right to submit article 50 based on an advisory referendum, but if that referendum has been found to be conducted illegally and subject to cheating and lying, then the advice is flawed and so the notice should be withdrawn—and we have heard from the advocate general that in all probability it can be withdrawn. Was this advice tendered to the Government or discussed with them by the Attorney General? He did not mention it at all, and yet it is advice that is available. That suggests to me that the advice that has been given to this House is incomplete for us to draw our conclusions.
I turn to the argument that the Government should now revoke article 50 on the basis that the advisory referendum was flawed. First, we already know that the leave campaign misled the country during the referendum, deliberately or not. Secondly, multiple investigations by the Electoral Commission have found that the leave campaign broke campaign finance law. Thirdly, had those offences committed by the leave campaign been committed in a general or a local election, the result would have been legally void. Fourthly, the Government have a legal duty to take all relevant considerations into account when making a decision. Therefore, the fact that in any other election the referendum result would have been void due to one side’s illegal conduct is a relevant consideration when deciding whether to give effect to the result—that is, in ratifying the withdrawal agreement that would give Brexit effect.
In essence, then, the advice on the withdrawal agreement that the Attorney General should have considered would be whether the Government were failing in their duty by promoting an agreement when the animating factor of the agreement—the referendum—was so fundamentally compromised. Therefore, the Government are acting illegally by moving forward with Brexit without giving proper consideration to these facts. This whole debate and discussion was not included. Whether or not one agrees with it, this discussion would presumably have occurred within the ambit of the Attorney General, but we do not know that. That is a key reason to believe that the advice being given has been doctored for party political reasons. We need the full and latest advice.
As we have heard, the advocate general is saying that article 50 may be revocable. What was the view of the Attorney General given in the legal advice to the Government? We have not been told. The Attorney General must be aware of these points of law but has not listed them, and so we must conclude that he is withholding from the House relevant issues not for the national and public interest but for party political reasons, and is therefore in contempt of this House.
The hon. Gentleman has just made very serious allegations. Does he not recognise the importance of the legal professional privilege that attaches between a lawyer, as an adviser, and their client?
Of course I do. The whole point is that this House is entitled to the full legal advice. The Government are hiding behind this cloak of saying, “Oh, the national interest; oh, negotiations; oh, security.” That has nothing to do with it.
What I am illustrating with these legal arguments is that there are alternative views that need to be fully discussed so that we can take the right decision on the withdrawal agreement in full knowledge of the facts. We have had a doctored version that is politically spun in the interests of the Government getting their objectives through. They are protecting themselves by saying, “Oh, there might be issues of national security, MI5, the public interest, etc.” I have great support, I must say, for the Father of the House’s suggestion that if there were such problems with national security and so on, those parts could be redacted and we could see the full legal advice.
This motion focuses clearly on the legal advice provided by the Attorney General on the EU withdrawal agreement. Implicit in that, in my interpretation, is that we obviously do not need lots of details about MI5, national security, the negotiating position and so on. What we want to know is the legal position in respect of article 50 and of the illegalities during the advisory referendum that made it flawed, thereby undermining the power that the Prime Minister has under the EU (Withdrawal) Act based on the advisory referendum that we now find is flawed. None of this was brought before the House. Why? Either because the Attorney General and his colleagues are incompetent or because they are withholding that information.
As the hon. Gentleman says, the Government are hiding behind the national and public interest and claiming to be the final arbiter of public interest. Does he agree that they are not the final arbiter of public interest, despite what some on the Government Benches may think, and that it is not in the public interest for the UK Government to be governing in secret, with Members of this House not having all the information to make a proper, educated decision?
Yes, that is precisely right. What the House wants is the complete legal arguments on either side of the debate on the EU withdrawal agreement. These are difficult issues; we all accept that, and we are all grown up. They might say, “Well, there are all these things about national interest, negotiation and security,” but people are not interested in that. We want the full facts. I have made some simple legal points that show the full debate has not occurred.
Is the hon. Gentleman interested, like I am, in legal advice given to the European Commission and its negotiators by its lawyers, which presumably the European Commission would like to be privileged in the same way as advice to the Cabinet is? Has he interested himself at all in that side of this negotiating process?
Yes, I am sure we would all be interested in that if it were available, but the issue on the table is whether the Government are in contempt, and there is reason to believe they are in contempt, because a lot of the legal arguments are simply being taken out.
My hon. Friend referred to the suggestion of the Father of the House. Does he recall that the last time a Humble Address was passed by the House, which instructed the Government to hand to the Select Committee on Exiting the European Union the exit analyses, I made it clear to the Government on behalf of the Committee that the Committee would take the decision about what was released? In the end, having read all the pages, we released 36 or 37 of them and held three back, because we accepted the argument made by the Government at the time, that those might not be in the national interest, given that negotiations were taking place. That is an example of the way in which a Committee of the House has been able to exercise that judgment on behalf of all Members.
That is a very helpful intervention, and it builds on the proposal of the Father of the House.
There is a time constraint here. Obviously, the idea behind the amendment is to kick this into the long grass so that we do not have full legal clarity to make an informed decision when we vote next Tuesday. It is critical that all the legal advice is available to Members before then. If there were a facility to enable the redaction of irrelevant and possibly dangerous facts, figures and information in relation to our national interest, national security, negotiating position and so on, obviously that would be much better. The main question is, are we going to have the full legal advice, or are we going to say, “What can you do? They’ve played the national interest card”? As my right hon. Friend the Member for Leeds Central (Hilary Benn) said, there should be—I hope there will be—a way through this maze, so that we have the full advice before the crucial vote.
I follow up entirely on what has just been said by the hon. Member for Swansea West (Geraint Davies). He and the right hon. Member for Leeds Central (Hilary Benn) obviously have some sympathy with what I said.
It seems to me that the House is facing an extremely difficult dilemma, which was exactly the one faced by the Attorney General yesterday. There are two very important constitutional principles involved here that are important to people on both sides of the House, and unfortunately the present situation puts them in direct conflict with each other. The first is the sovereignty of Parliament and its ability to instruct the Government to do things that the Government do not want to do.
I will not repeat what my hon. Friend the Member for North East Somerset (Mr Rees-Mogg) said, because I entirely agree with everything he said, but the Humble Address is an extremely important weapon of this House. It is the duty of Parliament sometimes to instruct the Government to do things. We know that whenever the Government lose a vote, they think Parliament is wrong—they disagree—but they should comply. Parliament in recent years has greatly weakened its powers vis-à-vis the Executive. We should all think ahead to future Parliaments and simply not weaken it any further.
The Government did not vote against the motion when it was before the House because they knew they were going to be defeated. We all know why they asked Conservative Members not to vote at all. I disapprove of that. A Humble Address is an instruction. I disapprove of refusing to vote on Opposition motions and other motions. It may well be that constitutionally they are not legally binding, but we have never previously had a Government that just said, “Well, the House of Commons can express opinions if it wants, but as they’re not legally binding, we won’t bother to attend, and not many of us will listen to it.” That is a very unpleasant step.
Ahead of us are votes, including the meaningful vote on the withdrawal agreement and votes on the Bill that is necessary to implement that. Particularly on the meaningful vote, I hope that the Government abandon the idea that the only vote of any legally binding significance is the one on the Government’s proposal—yes or no—and that if the House wants to pass amendments or motions or express a different opinion, that is very interesting and a matter of opinion, but the Government will ignore any amendments. That was virtually what was being urged on the Procedure Committee a few weeks ago.
I hope that when we get on to sorting out the procedure for next week’s vote on amendments and the motion and for the Bill that ultimately follows, we go back to the standard procedure, whereby amendments can be tabled to Government motions before the motion is put, and when amendments are carried, the only vote remaining of the House is whether it approves of the motion as amended. With great respect, I do not think we should take any notice of all this stuff about the Government’s duty being to listen to what the House says and then decide, in their opinion, whether the public interest justifies complying with it. I am entirely on the side of the critics.
On the other hand, as my hon. Friend the Member for North East Somerset said, the Conservative party will deeply regret when one day it is in opposition that it has challenged the authority of Parliament, and the Labour party might well come to regret when it gets into government its attempts to override the convention that Governments are entitled to confidentiality when they get legal advice from the Attorney General. It is quite ridiculous to throw out either of those principles, because there are occasions when they are both extremely important.
I am not a lawyer in the same rank as my right hon. and learned Friend the Attorney General, though I have practised for many years. I once declined an offer of an appointment as a Law Officer, because I preferred to stay in the departmental job I was then in. I am now totally out of date—I accept that—but I am very familiar with the circumstances when a lawyer gives advice to his clients and gives honest opinions of the legal advice. Of course a lawyer is talking about the circumstances of the case, but Law Officers’ advice in particular, which I have seen many times when I have been given it as a Minister, is all muddled up with questions of policy, the law, arguments about tactics and comments on what the other side might do. Advice is given to a client in a way that 100% should be an accurate expression of the lawyer’s opinion of the law, but it will be coupled with lots of other things, because the lawyer does not just sit there ignoring the merits or what the client wants to achieve.
My right hon. and learned Friend is making a powerful argument. He is saying that the House should not have to choose between those principles, and what we should have expected was more leadership from those on both Front Benches in order to reach a proper, thoughtful solution on how to strike the right balance—just as we have on security matters, for example. This is a unique position we find ourselves in, but it was not beyond the wit of the political leaders in our country to reach a solution and avoid this point.
My right hon. Friend summarises my argument in a very neat way. That is exactly the case. I will not do the Father of the House “What it used to be like” and all that sort of thing, but I would have expected—it would easily have happened in my time—the usual channels to sort this situation out.
Well, perhaps the usual channels were more reliable in the past. We would get together and agree that the House has passed a resolution, but there are these problems, and we satisfy the Opposition that their political desires can be satisfied and they can get all the documents with the embarrassing political opinions of the Attorney General—though I do not think they will find much, because the Attorney General is pretty candid. He is a very sound Brexiteer. He and I do not agree on Europe in the slightest.
They can excise things such as security, which we have talked about. I do not know what is being excluded or held back, but it is likely to be comments on the negotiating position of the Commission, the strengths and weaknesses of the Government’s case and where there are risks. A great deal of a lawyer’s advice is, “This is my opinion, but the risks involved are this”. Some of these comments about other Governments, the Commission and so on may well not be in the public interest to disclose. There are reasonable people on both sides of the House and on the Procedure Committee, and I would have thought that we should certainly consider where we are going.
Will my right hon. and learned Friend give way?
Will my right hon. and learned Friend give way?
I will not give way, because I am concluding. It will not take too long, because it is just my one suggestion that I am pursuing. I have made it twice now, so I will not labour it too long.
It seems to me likely that the motion we are debating is going to be carried. There must be a very considerable risk of that. I do not know whether the Chief Whip thinks he has a majority for resisting this motion. Even then, I would hope that we will consider how to do this in a responsible way that does not prejudice the national interest or the interests of British Governments. I would also hope—I am not sure that the Committee of Privileges is the best place to do this, but it was done in the case of the Exiting the European Union Committee, as we have been reminded—that somebody nominated as responsible by the Opposition could have a look at the documents and give the Attorney General the opportunity of explaining why, yesterday, he was so obviously wrestling with a dilemma or problem of conscience about its simply not being in the national interest to put all this in the newspapers. The previous problem was solved by redactions, and I still urge that there should be redactions.
Nobody in the Opposition is going to allow the Government just to hold back things that are politically embarrassing, somewhat at odds with what the Government are now saying or advocating a tactic that the Government in the end chose not to use, and all that. Because we lost the motion for a Humble Address, I fear that Conservative Members have to be braced for that if these documents do come out. However, there is a public interest in not undermining the confidentiality of the legal advice.
I repeat my suggestion. No one knows where we are going in politics, who will be in government and who will be in opposition for very long, but what matters is that this Parliament is not weakened any further and that the ability of Governments of whatever party to rule in the national interest is not undermined. I repeat my suggestion, and I think that if the Opposition are victorious, they should in the public interest consider how far they wish to press it. I am sure that the House as a whole would accept it if they held back in some ways and the Law Officers’ confidentiality was left intact.
Order. Before I call the next Member wishing to speak, may I very gently point out to the House that, although many Members still wish to speak, afterwards we have the business of the House motion to consider and the debate itself with a protected period of eight hours? I make this point simply so that Members can factor that into the equation and no doubt take account of the mood of the House. That is the only consideration I am inviting colleagues to contemplate. From my point of view, there are, outside family, few joys greater in life than listening to right hon. and hon. Members on both sides of House and from all points of view. [Interruption.] I should get out more, somebody says from a sedentary position. I am the servant of the House, so I am not complaining—it is a joy—but people might want to bear in mind that their own enthusiasm to speak is not always matched by a comparable enthusiasm of everyone else to hear them. I call Mr Chris Bryant—and that is not personally directed at him. It was not personal.
Your wisdom, Mr Speaker, in always making that point just before you call me is shared by the whole House, I am absolutely sure. So we are all united now and everybody can just agree with what I am about to say.
Although I sympathise with the arguments made by the Father of the House and for that matter with the points made by the hon. Member for North East Somerset (Mr Rees-Mogg), I disagree with the conclusion to which they have come. I am delighted that the motion does not mention the Attorney General by name because I do not think this is a matter of the Attorney General being a dishonourable man at all. I am very fond of the Attorney General. I think he is a wonderful man. I think he is entirely honourable and, yesterday, he did his level best in the Chamber to provide what he thought he could, within the terms and the strictures given to him by the Government. However, I would say that we are today facing an extraordinary moment. I cannot in the history of Parliament find a moment when the Government have referred themselves to the Committee of Privileges. The best argument they have today, in response to the motion moved by my right hon. and learned Friend the Member for Holborn and St Pancras (Keir Starmer), is—“Instead of deciding already on the House’s behalf that the Government are in contempt, we will refer it to the Committee of Privileges.” Always in the past, that has been to decide, prima facie, that there is a case to answer. So the Government themselves accept at the very least that there is a case to answer about their being in contempt. I cannot think of another moment in our history when that was true.
In fact, as several Members have already said, the Attorney General himself in a sense confessed his own guilt to the charge of contempt yesterday. He said on the motion for the debate we had previously:
“We should have voted against it.”—[Official Report, 3 December 2018; Vol. 650, c. 579.]
Of course we should have done. It would have been good if the Government had made in the debate back then all the arguments they are making today and made yesterday afternoon. Some of us might have listened to the argument about national security then. It might have been an appropriate argument then, but it was not an appropriate argument yesterday and, for that matter, it is not an appropriate argument today.
The Attorney General repeated time and again yesterday that he knew he was not fulfilling the will of the House. That is what we are asked to decide today—whether the Government are fulfilling the will of the House. He himself said yesterday that he was not fulfilling the will of the House. In an extraordinary moment, he said:
“The House has at its disposal the means by which to enforce its will.”—[Official Report, 3 December 2018; Vol. 650, c. 574.]
That is what we are doing now. To all intents and purposes, the Attorney General yesterday asked us to do what we are doing this afternoon and I think he fully accepts that the House has to be able to have its way in the end.
I say to the right hon. and learned Member for Beaconsfield (Mr Grieve) and the hon. Member for North East Somerset, the other thing that is extraordinary about the motion before us—the Opposition motion, supported by the other Opposition parties—is that there is no sanction involved in it. In fact, the only thing it requires to happen is that the will of the House is abided by. That is the only thing. It may be that we have to return to this if the Government choose to ignore it, but my suspicion and hope is that, if the Opposition motion is carried today, the Government will say, “Alright. Fair do’s. That’s twice we’ve been told now. We do actually have to abide by the decision of the House.”
Could the hon. Gentleman help the House by explaining what the next step would be if the Government did not then publish the information and what procedural effect could be had or what motion could be brought forward to follow up on the motion before the House today?
I do not want to go back to 1340, as the hon. Gentleman did, and I am not going to. I prefer to cross my bridges one at a time. I am hopeful for all the good reasons that he himself adduced that, if the House for a second time decides to insist on its will, the Government will then comply. To be honest, if that were not to be the case, I hope other hon. Members who today are dubious about this procedure would want to stand in favour of more robust measures. The anxiety is of course that there is a time factor. We cannot let this roll on until after next Tuesday because then the Government would have completely defied the will of the House beyond the time necessary.
A few moments ago, the hon. Gentleman referred to having to implement the will of the House. Does he believe that there should be any limitation on the House’s ability to impose its will, for example, if it came into conflict with an individual’s personal or civil liberties?
In the debate that would transpire, I do not think that hon. Members would vote for such a motion. The hon. Gentleman asks me a hypothetical question, and we have been dealing with lots of hypotheticals. I have tried to search through history for a moment when the Government refused to abide by the will of the House when there was a Humble Address and I simply cannot find one. We should therefore deal with the actuality rather than the hypothetical. I say to Conservative Members that it is all very well when sitting on the Government Benches to say that the Government should have their way, but that does not normally serve the long-term interests of the nation, and in our current system, the Government have phenomenal power.
The hon. Gentleman knows that our Committees often ask for papers and sometimes the response to such requests is to say that the documents are legally professionally privileged. In those circumstances, the House tends to use a bit of discretion and common sense and often an agreement is reached about exactly what is to be disclosed. Is not that what is needed here?
It would have been interesting if the Government had made that argument, but they did not. They made no argument—they allowed the motion to go through. If they had said in the meantime, for example, yesterday afternoon, “We will provide the document that you want. We’ll give it to the Chair of the Exiting the European Union Committee, which has a majority of Conservative Members, and it can decide what should be in the public domain”, I think the House would have been content. That would have been a perfectly logical process to adopt, but the Government have not done that. Perhaps they will do it later today if they lose the motion—I do not know.
Let me consider the important substantive point. Can the House require the Law Officers to provide their legal advice to Parliament? It is important that Select Committees can require documents of all sorts of people outside Parliament, and it is difficult to enforce that if we cannot even require documents of Ministers. Yesterday, the Attorney General referred several times to “previous editions of ‘Erskine May’” to show that “the motion to return” is traditionally always
“confined to documents of public and official character.”—[Official Report, 3 December 2018; Vol. 650, c. 563.]
That was his argument for saying that “Erskine May” did not really allow for Law Officers to provide anything that was sought by the House, even though the current 24th edition does exactly that. He suggested that the 22nd or the 23rd edition had changed the rule and that we should return to a previous version.
Perhaps the Attorney General was referring to the 10th edition of “Erskine May”, which, as I am sure the hon. Member for North East Somerset knows, came out in 1893. In that, the traditional version of this doctrine, which I think the Attorney General meant, is laid out:
“The opinions of the law officers of the Crown, given for the guidance of ministers, in any question of diplomacy or state policy, being included in the class of confidential documents, have generally been withheld from Parliament.”
I think that the Attorney General believes that that should still be the case, although that has been superseded. Unfortunately for the Attorney General, “Erskine May” goes on to say:
“In 1858, however, this rule was, under peculiar and exceptional circumstances, departed from, and the opinions of the law officers of the Crown upon the case of the Cagliari, were laid before Parliament.”
I will not go into the instance—I know that hon. Members are saddened by that.
The point is that, when the House has required that the Law Officers provide the information, they have always done so. The Attorney General’s argument therefore does not stand.
That also appears in the 17th edition of “Erskine May” from 1964, to which I will refer if Mr Speaker calls me. In the case to which the hon. Gentleman refers, in the middle of 19th century, the Minister voluntarily gave that advice, which was not demanded by the House.
It was required by the House. Indeed, it was required by the House of Lords and the House of Commons. The point about the 1893 version, which survived for a while, was that the information was provided
“under peculiar and exceptional circumstances”,
but they were peculiar and exceptional in a remarkably similar way to the current case, because the information dealt with international treaties and the relationship between other countries in Europe.
The House must surely be able to require documents. Just as the Speaker is the servant of the House, so in the end, the Government have to bow the knee to Parliament. It is not good enough for the Government to say, “You’re all wrong; you’re benighted; you don’t understand the full implications. We, the Government, are the only people who have seen the whole truth and understand the security implications.” If they want to find some other arbitration method through the processes of the House, such as a Select Committee, that is fine, but that is not what they have done.
In the end, we reach the simple point, which I do not think a single one of my constituents would understand: the Government look as if they are trying to keep something secret; the Law Officers want to say one thing in private, in Cabinet, and another in Parliament. That is not to accuse anybody of hypocrisy. It is simply to say that my constituents would not understand why the Government would want to keep the information secret. I say to Government Members: one day, you will sit on the Opposition Benches and if you vote against this being contempt and therefore against requiring the Government to produce the documents, that power will be gone forever.
Order. In inviting an illustrious lawyer next to address the House, it is perhaps more in hope than in expectation that I reiterate the plea for brevity. I call Bob Neill.
I am grateful, Mr Speaker, and in an endeavour to fulfil that injunction, I say, as lawyers would, that I adopt most of the arguments that my right hon. and learned Friend the Member for Beaconsfield (Mr Grieve) made, particularly his masterly analysis of some of the matters, and I do not intend to repeat them.
However, it is important to recognise that there is a potential conflict between two important concepts: the revived use of the Humble Address, which may be of value to the House, and the imperative of protecting the concept of lawyer-client privilege generally, and particularly as it relates to advice given to Government. Having been a much less distinguished member of the Government than my right hon. and learned Friend the Member for Rushcliffe (Mr Clarke), I confirm what he said about the way in which legal advice is received by Ministers. The impression has been given that it is as if, a little like in private practice, we are asked to produce one big rolled-up opinion as a nice document for which one charges appropriately. That is not what happens in practice here. We need to draw that distinction.
Another point concerns the particular nature of the Law Officers’ convention, which goes beyond the normal lawyer-client privilege. The hon. Member for Rhondda (Chris Bryant) rightly conceded that it was wrong to attack the Attorney General because he is not the client but the Government’s lawyer. Having known my right hon. and learned Friend the Attorney General professionally and personally for the better part of 30 years, I have absolute faith in his integrity. I believe that he did everything he could to fulfil the injunctions placed upon him. I have absolute confidence that he spoke frankly and that he would not, as the right hon. Member for Carshalton and Wallington (Tom Brake), who is not in his place, unworthily suggested, cherry pick. My right hon. and learned Friend has never approached his responsibilities as a lawyer or a politician in that way. In a sense, the wrong person has been put in the dock.
I will support the Government amendment because the conflict between the use of the Humble Address and protecting parliamentary privilege requires something more than the summary disposal that will come at the end of the debate. The way in which we deal with the interaction between those two matters warrants serious consideration. If the Humble Address process is to be updated, perhaps it is a matter for not just the Committee on Privileges, but the Procedure Committee to look at. I offer that as a constructive suggestion.
For a proportionate way forward, the Committee on Privileges is best placed to consider the matter in a dispassionate and evidence-based way and I therefore support that. Perhaps the Committee might look at the option that the Father of the House floated. However, for today, I urge hon. Members to accept the Government amendment and not to imperil a fundamental legal and constitutional privilege.
Much of the debate today has been about what the debate should have been back in November. I am going to dismiss those arguments. Had a vote taken place in that debate, I would have voted with the Government. However, they did not put it to the vote and they accepted the motion. That is a matter of fact. It is therefore clear that not providing the information is a contempt.
The Father of the House, my right hon. and learned Friend the Member for Rushcliffe (Mr Clarke), and my hon. Friend the Member for North East Somerset (Mr Rees-Mogg) argued the problem that it breached the other important aspect—confidential legal advice for the Government—which I also accept. It seems to me, however, that the only way we will get something like what the Father of the House suggested is if we vote for the contempt motion, so that the Government can then come back, overnight if necessary, to suggest that option. I do not see how we get to that if we vote for the amendment because it will go off to the Privileges Committee.
I was undecided before I came into the Chamber, but because of the arguments from my hon. Friend the Member for North East Somerset, the Father of the House and, for that matter, the hon. Member for Rhondda (Chris Bryant), it seems to me that the motion before the House, signed by spokesmen for six different parties in this House, is not actually critical of any particular Minister. All it says is what the original motion said—it is perhaps even more precise than the original motion—about publishing the legal advice. Unless something changes very dramatically between now and the end of the debate—I have to leave the Chamber, Mr Speaker, as the Chief Whip would like to have a word with me—I think that, if the House votes for the contempt, a compromise will happen and we will get hopefully properly redacted information before we vote next Tuesday.
I am most grateful to you, Mr Speaker, for letting me speak now. I have been able to listen to the debate before deciding whether to speak. That may be unusual.
I rise to speak because the Public Administration and Constitutional Affairs Committee is in the process of concluding our inquiry into the status of resolutions of this House. We have been looking at the question of what we call “motions of return”: how they should be dealt with and what their legal status is. At the moment, how a Government responds to a Humble Address is merely a matter of precedent and convention. It is not a matter of law. It is not a matter of statute law or of common law. Therefore, this is not a device that should be overused or used irresponsibly. I am not casting aspersions on anybody’s motives. I just make that observation.
This House operates on the basis that it is not the Government. The Government exist as a separate legal entity and function when this House is not sitting, when Parliament is prorogued and even when Parliament is dissolved. Parliament holds Ministers to account and we scrutinise the work of the Government. We make the laws that bind the Government, and this House controls the supply of money to the Government and the Crown. But we do not run the Government. We have parliamentary Government, but not Government by Parliament. The point about labouring this little constitutional essay is that if we forget that, there is then confusion and we risk creating more confusion about how the distinct roles and responsibilities of Parliament and Government have to be divided if we use our powers and procedures irresponsibly, unpredictably, in the wrong circumstances, or—dare I say?—as a bit of oppositionism.
Where does that leave this Humble Address, a device that until very recently was not used since the 1850s? We find ourselves in a very abnormal political atmosphere. I will come back to that point in a moment. This device is known as a motion of return. If it was to be used indiscriminately and frequently, if the Opposition were to use the vulnerability of the Government to demand the advice to Ministers as well as legal advice, the minutes of internal meetings, previous drafts of policy or speeches, or matters of national security, it would be impossible to conduct the Government business. That does not happen, because we rely on the self-restraint of Parliament.
The credibility of the unwritten powers of this House depends on their responsible exercise. As they cease to have credibility, they will not be respected. Incidentally, the Select Committee has just returned from a visit to the US Congress. The US, of course, has a written constitution. One might think that that would provide all kinds of solutions, but it does not. They are suffering from exactly the same problems and exactly the same kind of breakdown in the understanding of the norms and conventions that surround their written constitution. Even in the US, it is not unknown for the Executive to ignore new laws passed by Congress.
I referred earlier to the normal atmosphere that we usually enjoy in politics and how, until very recently, motions of return had fallen into what our learned Clerks call “desuetude”—that is, they had ceased to be recognised as functioning bits of the constitution. So why are they being revived now? First, we have a minority Parliament. In particular, we have a minority Parliament where the confidence and supply agreement with the Democratic Unionist party appears to have broken down. Secondly, as in the US, politics has become extremely polarised, particularly between the two factions of remain and leave. The referendum demonstrated that the balance of opinion is different in the country than it might be in this House. That presents particular challenges. Thirdly, just as in the US, there is a breakdown of trust: trust in politicians generally, and trust, restraint and respect between the political parties and between factions. We have noticed—have we not?—how deeply embittered some of the political arguments are particularly around the referendum and the European Union question. As in the US, norms of procedure and convention become overshadowed by partisan dispute and political opportunism. I invite the House to look at the US and the endless confected rows about matters of supposedly fundamental constitutional importance, which we can see from this distance are really just partisan politics.
There is a strong case for reviewing and codifying in some way many of the ancient devices, procedures and powers of this House, but that would not resolve what we should do today. The right hon. and learned Member for Holborn and St Pancras (Keir Starmer) underlined the real weakness of the justice in his case. Its weakness is a matter of procedure that is in the public interest. He warned the Government that they faced being found in contempt of the House. That supposes we are a high court of Parliament, which we are not, and that we are operating as some kind of judicial authority on this matter. But of course this Chamber is not behaving like anything we would recognise as a court. I am afraid that this vote is likely to divide on party lines. There is very little that is objective about this finding of contempt, which he invites the House to do in this debate.
The Government have made a sensible compromise. The hon. Member for Rhondda (Chris Bryant) said that the Government seemed to admit that they were in contempt. The amendment is an admission that there may be a contempt, by referring the matter to the Privileges Committee where there might be a slightly less partisan and heated atmosphere and where there might be a more objective atmosphere in which some of the ideas and procedures for sorting this out as quickly as possible could be reached.
I invite the Leader of the House to consider whether she would accept a little addition to her amendment—that the Committee should be required to report by 10 pm on Monday, so that there is no suggestion that the Committee is being used as a device to knock this into the long grass. I am going to give her my unqualified support for her amendment anyway, but I suggest that she could accept that proposal, or at least invite the Committee to report early next week in time for the debate—not that I think many people will change their minds as a result of what the Government may or may not publish. I think this issue has got caught up in this great dispute about our future relationship with Europe. It is the elephant in the room in the debate, and this is not necessarily the best circumstance under which the absolutist device of a Humble Address should have been exercised in the first place.
I am neither a lawyer nor a constitutional historian, but I concur with my right hon. and learned Friend the Member for Rushcliffe (Mr Clarke), the Father of the House, and indeed, my hon. Friend the Member for North East Somerset (Mr Rees-Mogg), in suggesting that it is regrettable that we have got to this position. One would not—Government Members, certainly—start from this position if we had to choose, but as hon. Members, we have to make a decision about the facts before us. The point I put to the Opposition is that they have failed to answer a very obvious question. Their motion is a take-it-or-leave-it, all-or-nothing approach, which does not recognise the sensitivities of the situation at hand, which has been built up by convention over decades, if not centuries, in trying to balance the will of Parliament with the national interest.
Many of us in this place have no problem with the concept that the will of the House of Commons should be recognised by the Government, but there is a delicate balance on issues of national interest. I do not think that anybody in this place would question the national interest when it comes to, for example, the role of our special services or our intelligence services, or indeed, Cabinet minutes freshly laid. That is generally accepted, but there is a grey area that we have to approach very carefully, and the Opposition’s all-or-nothing approach risks establishing a principle that they may come to regret one day. It is very important that there is honesty and honour in this place, but we also have to recognise that there needs to be a filter for claims about the national interest by Governments, and the Opposition motion lacks that filter. What the Opposition would be doing is putting everything out on the table, but there may be issues in that disclosure that are sensitive when it comes to the national interest. It is a reckless idea that risks riding roughshod over decades of convention when it comes to trying to establish that balance.
I make no bones about it: I do not like where we are as a Government on this issue, but we have to judge the situation as it is now, and the filter that could achieve the delicate balance that is needed in this situation is with regard to the Committee of Privileges. Although it is not a perfect answer to this situation, it would serve as a means of filtering information that is perhaps against the national interest.
I will support the amendment this afternoon—one hopes—but I urge the Opposition to think this through very carefully. On the balance of opinion, I think that the Government may lose this, but I suggest that the Opposition act with restraint in the follow-up, because there is a real danger that they could one day regret what they have done, and they should be careful what they wish for.
I am very grateful for the opportunity to contribute to the debate, Mr Speaker. So far I think I am the newest Member to do so, so this is clearly the first time that I have witnessed a privilege motion coming before the House.
I want to reflect on how we have come to this position. I had to nip out for five or six minutes to attend a Delegated Legislation Committee upstairs this afternoon. Before that Committee began, Government Members were talking about the importance of the Humble Address and how the House must adhere to it. I had been reflecting on the fact that before that, I had been down here, and we find ourselves in the very sorry circumstances of our debating a privilege motion before the House. This is somewhat unprecedented for the vast majority of Members.
Since I entered the House in 2017, time after time, we have seen the Government ride roughshod over this Parliament. This is a Parliament that is meant to be taking back control, but it has been denied money resolutions, it is not adhering to Opposition day votes and it is not adhering to a binding motion of the House calling for the release of this legal advice. It might be uncomfortable for the Government to release that legal advice, but the reality is that the House has voted for that. Members claim regularly that Brexit is an opportunity for us to take back control. Well, I am afraid that Government Members cannot have their cake and eat it. If they are serious about the House taking back control and about adhering to the will of the House that was outlined in November when the original motion was passed, they should vote for the motion in the name of the right hon. and learned Member for Holborn and St Pancras (Keir Starmer).
A number of interesting things have come out during this debate about our general procedures and our way of handling matters of the sort we have been discussing—in relation to procedures and privileges, and the nature of the Humble Address and whether it is an appropriate vehicle for advancing Labour’s essentially political aims. I think there is one thing on which we can agree: we need to find a sensible way forward, and it seems to me that the Government’s amendment, although not perfect, is a sensible way through this particular conundrum. The Government are clearly not in principle averse to being as transparent as possible, but they have to safeguard the national interest. My right hon. and learned Friend the Member for Rushcliffe (Mr Clarke) made a sensible suggestion, as one would expect, on the use of Privy Councillors to examine this matter. Of course, we have the Privileges Committee, which is up and running already. As a number of right hon. and hon. Members have said, although it is imperfect for the purposes of examining this issue, it is at least there and we could at least support that in determining whether the very serious charges of contempt are reasonable or not.
We have to understand that some serious allegations have been made. Lawyers and legislators understand full well what contempt is. The general public probably think that it means something rather different, and they can be forgiven for that. Contempt is a very harsh term. If it is associated with individuals—I am not suggesting that the Attorney General has necessarily been associated with this, but Ministers have been—and it sticks, that is very serious, even if we have not decided yet what the penalty might be. Of course, when this language was being got up hundreds of years ago, the penalties may have been very severe indeed. Mercifully today, that is not the case, but we have yet to determine what happens if individuals are found to be in contempt. That is left uncertain, but one thing that we can agree on is that this is a very serious allegation to make and the consequences are potentially significant, so we have to get this right. Simply to use an arcane measure such as the Humble Address to make this determination, untrammelled, seems unfair to me.
If we accept that this is a rather archaic vehicle, which is more traditionally used not for legislation or things that might lead to legislation, but for providing gifts to Commonwealth countries, as suggested in “Erskine May”—which I cited in my intervention on my hon. Friend the Member for North East Somerset (Mr Rees-Mogg)— we must also accept the possibility of using a measure that is not ideal for determining this issue, and that, in my view, means the Privileges Committee.
Does the hon. Gentleman agree that what has upset Members on both sides is the fact that the Government several times now have ignored the will of the House? That has antagonised a lot of Members.
The hon. Gentleman is right. The difficulty is that a court of law has available to it a judge who can determine what may be disclosed. The Freedom of Information Act, passed fairly recently, put significant constraints on what may be disclosed and gave powers to the Information Commissioner to use their discretion to permit, or otherwise, information to enter the public domain. We do not have that here.
The Government are mindful not only of potentially setting a precedent, but of the very real possibility that in the advice given—in this case, by the Attorney General—there might be something that is embarrassing to this country internationally or which has security implications. It is irresponsible of the House not to recognise that dilemma, which the Government now face. They are trying to reconcile their duty to be as candid as possible with their duty to safeguard the public interest, and specifically the interests of individuals who might be adversely and directly affected by such a disclosure.
On contempt, it is appropriate to dwell for one moment on the nature of the advice the Attorney General gave to the House yesterday. Nobody in this place could fail to have been impressed by his candour, and it seems wholly inappropriate to associate the word “contempt” with anything he said.
I have grave reservations, as a former Minister in the Ministry of Defence and the Northern Ireland Office, about the impact that this could have on the disclosure of sensitive information. I am worried about that, knowing what I do about the nature of some of the material that the Government would like to keep unto themselves. It has nothing to do with the precedent in 2005 cited today in relation to the Iraq war, where it came two years after the event and dealt with whether the Government had behaved lawfully. That is not a question facing the House today—clearly the Government are behaving lawfully—so the two cannot be compared or contrasted in any way. The Government amendment is a sensible and pragmatic way forward that reconciles the House’s desire for openness and transparency with their legitimate desire to ensure that they put nothing in the public domain that might harm individuals or set a dangerous precedent.
It is an honour to speak in this important debate and to follow my hon. Friend the Member for South West Wiltshire (Dr Murrison), who made some excellent points, all of which I agree with.
It is worth restating the fundamental issue that we are dealing with, which is the clash between Parliament, as a sovereign institution and the highest court in the land, and the right of the Government—any Government—to have access to independent, unvarnished, honest legal advice. I suggest that this is a moment when all Members, on both sides of the House, ought to engage in a period of cool, calm reflection. I would further suggest that the Government’s amendment is the correct way to do that.
Does my hon. Friend agree that traditionally the Law Officers’ advice can only be released with their consent? The information has now been revealed via a statement—that is self-evident—but there is that convention to bear in mind.
I am grateful to my hon. Friend, who, as always, makes an excellent contribution. It is normally the case that the client has the ability to waive legal advice if they wish, but, in the case of Government Law Officers, there clearly is another layer to that, and their position is of enormous importance.
The Government’s amendment is the correct, cool, calm way to look at this matter. We are in uncharted territory. The very fact that we are all discussing constitutional and historical precedents today means that we all ought to avail ourselves of more time in which to study those in detail so that the Privileges Committee can consider the real constitutional and historical ramifications of any decision we take.
To be honest, there are a number of questions to which I do not know the answer. Does a Humble Address trump privilege? It would be helpful if somebody were to look into that and consider it. I do not think there is a straightforward answer because I do not think it has ever been tested—I may be wrong. My point is that a period of cool, calm reflection on such points would be of benefit to everybody in the House. Further, where does the line fall in terms of disclosure? Is there a question of redacting elements of advice? If so, where does the line fall?
Many Members will be clear that the line falls when we are talking about national security—that is relatively straightforward perhaps—but what about the national interest? It is not so easy to define, but it is something that we ought to consider carefully before rushing into what are extremely serious matters, not just of party politics—although of course there is a big element of that in this—but of constitutional and legal theory and practice that could have profound consequences for any Government. The Opposition ought to be aware that at some stage—I hope not for a long time—they might be sitting on these Government Benches and should consider the position they would wish to take.
Is my hon. Friend interested, as I am, in the position of the European Commission? A number of right hon. and hon. Members would be interested in the advice given to the European Commission by its legal service. I suspect that it would take a very dim view of any request that might prejudice the position taken by the Commission’s negotiators.
My hon. Friend makes an excellent point. In the middle of a negotiation, in any discussion that by necessity is high profile and tense, any disclosure of advice that might undermine a negotiator is clearly to be regretted. The Commission will have its legal advice, and we might like to see it, but there is a good reason why we cannot see it and why the Commission should not be able to see ours.
The Government are approaching this matter in a better way than the Opposition’s motion because, as hon. Members have mentioned, they have used an archaic procedure. It was not designed to deal with this situation. [Interruption.] I hear an hon. Member say the whole House is archaic. The whole House is old and historic and flexible, but this procedure has not been used for many years and is not designed for a matter of such sensitivity. It is designed for the production of documents, not legal advice
What does my hon. Friend think the Director of Public Prosecutions, say, might think if he were asked to give private legal advice that would then be made public?
That is an excellent point.
If and when I was ordered, as Director of Public Prosecutions, to do something by order, I complied.
I am grateful to the right hon. and learned Gentleman for making that point. Of course, he has considerable experience in those matters, but we are dealing here with a wholly different consideration. He deals with circumstances in which he has been subject to a court order, which brings me precisely to my point. No doubt he will say to me that Parliament is a court—it is the high court of Parliament, the highest court in the land—and I accept the force of that point, but the court before which he has been used to appearing, and the court before which I have been used to appearing at the Bar, has a procedure for dealing with such matters that we do not have here.
A number of Members have already referred to the Freedom of Information Act, which contains exemptions for certain purposes. The right hon. and learned Gentleman will also be aware of public interest immunity applications, which are made when cases are being prosecuted, and a judge can look confidentially at documents and there can be redactions and so forth. None of that applies here, because this procedure is not designed for the purpose for which it is being employed by the Opposition. There simply is no mechanism for this procedure to deal with issues of the gravity of those with which we are dealing now. To its great credit, the Government’s proposal offers a way of looking at that.