EU Withdrawal Agreement: Legal Advice

– in the House of Commons at 12:52 pm on 13th November 2018.

Alert me about debates like this

Photo of Keir Starmer Keir Starmer Shadow Secretary of State for Exiting the European Union 1:05 pm, 13th November 2018

I beg to move,

That an humble Address be presented to Her Majesty, that she will be graciously pleased to give directions that the following papers be laid before Parliament: any legal advice in full, including that provided by the Attorney General, on the proposed withdrawal agreement on the terms of the UK’s departure from the European Union including the Northern Ireland backstop and framework for a future relationship between the UK and the European Union.

I will go into the details of the argument in just a moment, but may I first attempt to set out the context for today’s debate? Last December, the Government signed the joint report—the phase 1 agreement. It contained a number of important points, including, of course, in relation to Northern Ireland. I remind the House that the phase 1 agreement committed us, first, to maintaining the north-south co-operation provided by the Good Friday agreement; and, secondly, to avoiding a hard border, including any physical infrastructure or related checks and controls in Northern Ireland. Those, of course, are commitments that will apply “in all circumstances”. The idea is for a legally binding backstop to kick in

“In the absence of agreed solutions”.

That was the commitment made, and I know the Government are solemnly committed to it.

Photo of Nigel Dodds Nigel Dodds Shadow DUP Spokesperson (Reform and Constitutional Issues), Shadow DUP Spokesperson (Foreign Affairs), Shadow DUP Spokesperson (Brexit), DUP Westminster Leader

Does the right hon. and learned Gentleman agree that that report also made a commitment, in paragraph 50, that there would be no differences between Northern Ireland and the rest of the United Kingdom, unless it was with the agreement of the devolved legislature in Northern Ireland?

Photo of Keir Starmer Keir Starmer Shadow Secretary of State for Exiting the European Union

It did. A number of other important commitments were made in that agreement, but I am focusing for the moment on the two that relate to the Northern Ireland border. Since then—and it has been 11 months—a number of options have been mooted to meet that commitment. First, the EU proposed a Northern Ireland- specific backstop earlier in the year. The Prime Minister was right to point out the threats that that posed to the UK. Then, the EU proposed a UK-wide backstop, certainly in so far as a customs arrangement or union is concerned, but that runs into the problem that the EU wants an insurance measure that applies until something equally robust replaces it, whereas the UK wants a provision for unilateral withdrawal—and so that got stuck. A third option has been proposed, which is a UK-wide backstop of some sort, with unilateral withdrawal but with a Northern Ireland-specific backstop as a backstop to the backstop. After 11 months, this is unresolved.

I am not going to stand here and pretend that any of this is easy, because it is not—these are complicated negotiations and very serious commitments—but I am sure I am not the only one in this House who feels as though we have lived and re-lived the same week over and over again in the past few months. We begin the week being told, “There is going to be a deal. Cabinet meetings are scheduled. Dates are due—votes are being held in Parliament; there will be emergency summits in Brussels.” By the end of the week we are told, “Next week is decision time.” We have been going around that circuit for some time, and this can go on for only so long. The important point is this: if a deal is reached, it is proposed that the backstop will be legally binding as part of the withdrawal agreement. So it is in the legally binding part of the agreement, not the political declaration. That is a very important provision. Under section 13 of the European Union (Withdrawal) Act 2018, this House will of course be asked to approve that withdrawal agreement, or not approve it, so there is a special statutory process for this House that everybody in this House is well aware of.

On 17 October, it was reported that the Attorney General had been asked by the Cabinet to provide a full assessment of the legal ramifications of the backstop. I pause here to identify and emphasise what it is that the Attorney General has been asked to do: to provide a full assessment of the legal ramifications of the backstop. That is important for later, when I shall get into questions of privilege and non-disclosure.

Photo of Sylvia Hermon Sylvia Hermon Independent, North Down

The right hon. and learned Gentleman will be well aware that the Belfast/Good Friday agreement has particular constitutional significance for Northern Ireland. Do he and his colleagues therefore agree that it is of the utmost importance that the people of Northern Ireland understand and have sight of the legal advice given to the Government about the impact on the Belfast/Good Friday agreement of any Brexit deal negotiated by the Government?

Photo of Keir Starmer Keir Starmer Shadow Secretary of State for Exiting the European Union

I do agree, and I shall develop the point about why we are making an exceptional ask today. In relation to everybody throughout the United Kingdom—

Photo of Oliver Heald Oliver Heald Conservative, North East Hertfordshire

Will the right hon. and learned Gentleman give way?

Photo of Keir Starmer Keir Starmer Shadow Secretary of State for Exiting the European Union

I am just answering the previous intervention.

In relation to everybody throughout the United Kingdom, but particularly those in Northern Ireland, this is an important measure, as it is to all those who represent people in Northern Ireland.

Photo of Oliver Heald Oliver Heald Conservative, North East Hertfordshire

I am very grateful to the shadow Secretary of State for giving way. Does he not accept that with a live negotiation continuing, the Attorney General is giving legal advice about the situation, probably with several options? That is the sort of advice that is never revealed. It is of course different if we get to the point at which a decision has been made and that decision is being presented to the House, which is when the Government would always justify their legal position, but to give away the Attorney General’s legal advice while the negotiations are still continuing would be completely unacceptable.

Photo of Keir Starmer Keir Starmer Shadow Secretary of State for Exiting the European Union

I understand the point made by the right hon. and learned Gentleman—I had the privilege of working with him when I was Director of Public Prosecutions—and I shall address that directly, because I do understand the distinction between legal advice that is being given in real time and legal advice that may come to be given when a backstop is agreed and presented. [Interruption.] I will address that directly to make it absolutely clear what we are asking for, but I recognise the distinction that is being made and shall address it in due course—

Photo of Desmond Swayne Desmond Swayne Conservative, New Forest West

But even on the basis of that distinction—

Photo of Keir Starmer Keir Starmer Shadow Secretary of State for Exiting the European Union

Perhaps it is better if I actually get to the distinction between real-life legal advice given in real time and the sort of advice that may be presented when the deal is being put to Parliament. I will deal with it, I am well aware of it and I know the distinction between the two. If I duck it, I am sure to be challenged later. Let me make some progress.

The chronology is this: as I said, on 17 October the Attorney General was asked by the Cabinet to provide a full assessment of the legal ramifications of the backstop. A few weeks later, on 6 November, it was reported that the Cabinet had been provided with a summary of the Attorney General’s advice on the options for the backstop. It was also reported that the Secretary of State for Environment, Food and Rural Affairs wanted to see the advice in full. There is no doubt that there will be final legal advice if the Government are able to reach an agreement with the EU. It is that final advice that we want to see, and I shall develop precisely what I mean by that in just a moment.

Photo of Keir Starmer Keir Starmer Shadow Secretary of State for Exiting the European Union

Just like the Environment Secretary, we want to see it in full. Let me make it clear: we do recognise and understand the convention that Government legal advice should normally remain confidential, and that in ordinary circumstances it would not be appropriate to publish full advice, for good reason. But today I wish to make four points as to why in this case that convention should not apply. I shall summarise them and then develop them. The first is the unprecedented nature of the Brexit decision. It is both legally and technically complex and it is of huge importance across the United Kingdom. This is not just another vote.

Photo of Keir Starmer Keir Starmer Shadow Secretary of State for Exiting the European Union

As I will set out, successive Governments have waived the convention against non-disclosure in exceptional circumstances, and these are clearly exceptional circumstances. That is the first reason.

Secondly, the nature of the advice we are asking to see is general and different from other advice that the Law Officers give. That is important when we consider the convention on confidentiality and legal professional privilege.

Thirdly, although legal professional privilege can attach to legal advice given by the Law Officers, it operates differently in relation to their advice from how it operates in relation to the advice of other lawyers. I shall develop that point.

Fourthly, what cannot be allowed to happen is that the advice, or bits of it, are shown to some Members of Parliament outside Government and not others, in order to persuade them about the deal or the backstop. In other words, once the disclosure goes beyond the Government, or in this case the Cabinet—if it does; I am not suggesting that it has at this stage—it must then be made available to everybody.

Photo of Angela Eagle Angela Eagle Labour, Wallasey

Will my right hon. and learned Friend give way?

Photo of Keir Starmer Keir Starmer Shadow Secretary of State for Exiting the European Union

Let me just make this point, because I have been challenged on it twice. It is a fair challenge and I need to meet it.

What we are calling for today is the publication of the final advice provided by the Attorney General to the Cabinet concerning the terms of any withdrawal agreement. The final advice. [Interruption.] I am making clear what we are asking for. I am at the Dispatch Box, I am on record, and I know precisely the importance of the words that I am now putting on record.

We are calling for, first, the publication of the final advice provided by the Attorney General to the Cabinet concerning the terms of any withdrawal agreement; secondly, that this to be made available to all MPs; and thirdly, that it should be made available after any withdrawal agreement is reached with the EU, but in good time to allow proper consideration before MPs are asked to vote on the deal. So, it is the final advice, it is available to every MP, and it is available at the point at which the final proposed withdrawal agreement that has been agreed with the EU is being put to this House for this House to consider.

Photo of Keir Starmer Keir Starmer Shadow Secretary of State for Exiting the European Union

I shall give way in just one minute. We are not calling for legal advice to be published in its draft form, or as it is given between now and then, or on a rolling basis.

Photo of Kevin Hollinrake Kevin Hollinrake Conservative, Thirsk and Malton

On a point of order, Mr Speaker. I seek clarification, because presumably we are going to be asked to vote on the motion on the Humble Address, which clearly says,

“that the following papers be laid before Parliament: any legal advice in full”.

It says “any legal advice”, yet the shadow Secretary of State is now defining the legal advice that he wants to present. What are we to vote on, Mr Speaker?

Photo of John Bercow John Bercow Speaker of the House of Commons, Chair, Speaker's Committee on the Electoral Commission, Chair, Speaker's Committee for the Independent Parliamentary Standards Authority, Chair, Commons Reference Group on Representation and Inclusion Committee

How the Government respond to a motion, if it is passed by the House, is a matter for the Government. I do not think we need to invest this with greater complexity than is warranted. The motion is clear and people can make their assessment of it. The shadow Secretary of State has made it clear that it is the final advice that he is seeking. It is perfectly possible for a Member, in the course of a speech, to develop an argument. By definition, that speech and the development of that argument will involve the use of a greater number of words than are contained in a simple motion. How the Government respond to the motion, if it is passed, is then in the first instance a matter for the Government. It is probably best if we now proceed with the debate—

Photo of Victoria Prentis Victoria Prentis Conservative, Banbury

Further to that point of order, Mr Speaker. I apologise, but I remain slightly confused by the difference by the difference between what the shadow Secretary of State said and what is in the motion. I wonder whether you could help me. I would specifically like to know whether the motion relates to the legal advice being provided just to MPs or to its being made public and laid before Parliament, which is what it appears to say.

Photo of John Bercow John Bercow Speaker of the House of Commons, Chair, Speaker's Committee on the Electoral Commission, Chair, Speaker's Committee for the Independent Parliamentary Standards Authority, Chair, Commons Reference Group on Representation and Inclusion Committee

Order. I am extremely grateful to the hon. Lady. It might profit her and all Members of the House if they listen to the development of the argument in which the shadow Secretary of State is engaged. Frankly, it is not really very confusing at all. There is a motion, and Members can read the motion and form their own view of it. People can presumably listen to a speech and form their view of the speech. In fact, it is really so very simple that only an extraordinarily clever and sophisticated person could fail to grasp it.

Photo of Keir Starmer Keir Starmer Shadow Secretary of State for Exiting the European Union

Let me clarify the position, and then, as I indicated, I will give way. Just to be clear: it is the publication of the final advice provided by the Attorney General to the Cabinet concerning the terms of any withdrawal agreement; and that this be then made available to all MPs after any withdrawal agreement is reached with the EU and in good time before MPs are asked to vote on the deal. As for the way in which I put the case, when I last dealt with the Humble Address it was in relation to the impact assessments. I made a number of points from the Dispatch Box that were important to how that was handled afterwards and the agreement that we reached with the Government.

Photo of Angela Eagle Angela Eagle Labour, Wallasey

I thank my right hon. and learned Friend for giving way. Does he agree that the unprecedented nature of the meaningful vote that this House will have in the event of a withdrawal agreement being made makes it imperative for those of us who have to make that decision to have access to the Attorney General’s best view and his legal advice as to what the implications of that decision are?

Photo of Keir Starmer Keir Starmer Shadow Secretary of State for Exiting the European Union

I completely agree. The first argument that I will develop is that this is an exceptional case. There is a convention against non-disclosure; I accept that. There are exceptions to it, and if ever there was an exceptional case it is this.

Photo of Dominic Grieve Dominic Grieve Conservative, Beaconsfield

I am most grateful to the right hon. and learned Gentleman for giving way. I have great sympathy with the anxieties he is expressing about the legal issues surrounding the potential backstop, but surely he would agree with me that the proper practice is for the Government, at the conclusion of negotiations, to publish a document setting out the Government’s position on the law, and, if I may say, if that differs from what the Attorney General has advised, I would expect the Attorney General to resign forthwith.

Photo of Keir Starmer Keir Starmer Shadow Secretary of State for Exiting the European Union

I will give way to the right hon. Lady, and then I will deal with both interventions.

Photo of Anna Soubry Anna Soubry Conservative, Broxtowe

I thank the right hon. and learned Gentleman for giving way. Can he help us with this? Is this a motion that was drafted by the Office of the Leader of the Opposition, which has subsequently been changed quite dramatically at the Dispatch Box? Is it an intervention, yet again, by the shadow Secretary of State to make good the failings of the leader of his party?

Photo of Keir Starmer Keir Starmer Shadow Secretary of State for Exiting the European Union

As the right hon. Lady knows, I have great respect for her, but I really do not think that engaging in that kind of intervention is helpful in this serious debate.

In relation to the intervention of Mr Grieve and the general point, my response is this: this issue of the disclosability of legal advice has been discussed very much in the past two or three weeks. As soon as I started calling for it, I made it very clear, when I was pressed as to what procedures we would use to try to obtain the advice, that I did not want to use any. I invited the Government to indicate that they would disclose the advice in full rather than have this fight in the House, and therefore I declined, three weeks ago, to say what procedure we would use. I wanted the ball to be in the Government’s court. I wanted the Government to see the good sense in putting the legal position before the House, for all the exceptional reasons that have been set out, and the Government have not responded in kind. That is why we are here today with this Humble Address.

Several hon. Members:

rose—

Photo of Keir Starmer Keir Starmer Shadow Secretary of State for Exiting the European Union

I will press on, because the first point that I need to make is that this is an exceptional case—in other words, there is a rule or a convention, and there is an exception to it. First, of course, there is the unique importance of the peace process in Northern Ireland, which plenty of Members have experienced at first hand. There are politicians throughout the House who played an important part in that process. I had the great privilege of working for the Northern Ireland Policing Board for five years in Northern Ireland, where I saw for myself the progress that had been made and the ramifications of the Good Friday agreement. That was of unique importance.

Allied to that is the central importance of the withdrawal agreement itself. That critical document will determine the future relationship between this country and the EU, and it will be legally binding not just in international law, but, it is proposed, in domestic law through the EU implementation Bill. Therefore, the withdrawal agreement will not just be discussed in this House but will become international law and part of our law—a hugely important, exceptional case.

There is, of course, the special procedure in the House, to which I have already alluded, now reflected in section 13 of the European Union (Withdrawal) Act 2018. It is very unusual for us to have that legislative process for a motion on the deal. As has been said, it is critical that Parliament is fully informed of the details and the Government’s thinking. I know that the Government recognise that. They know that all material and detail should be put before the House so that it can consider the withdrawal agreement and future relationship carefully. In the 2018 White Paper, “Legislating for the withdrawal agreement between the UK and EU”, the Government committed to providing “appropriate analysis” before the meaningful vote and went on to say that this information

“will ensure that Parliament can make an informed decision about the implications of our new relationship with the EU in all areas.”

I readily accept that that was in the context of requests for impact analyses, but the same point applies: if we are to make a decision of this importance, it must be an informed decision, and that means that the details in every respect must be put before the House.

There is, of course, precedent for the Government publishing legal advice—albeit, I accept, in different and limited forms. The first is the Iraq war. I remind the House that, prior to the invasion of Iraq in March 2003, the then Attorney General set out in a written question in the House of Lords his views of the legal basis for the use of force against Iraq. He did not publish the full advice before the Commons vote to approve military action, even though many individuals, including me, felt that he should have done so on an issue of that importance.

Importantly, though, in April 2005, the Government did publish the Attorney General’s final advice to the Cabinet on the legality of the war with Iraq. I think there is general agreement now—there is certainly a majority view—that the Attorney General should have provided in 2003 the full advice that he finally produced in 2005, because the decision was so important. Therefore, there are exceptions to the convention in exceptional circumstances.

There is further precedent of advice being made available in the case of other military conflicts. For example, in November 2015 the then Prime Minister set out his justification for military action, including the legal basis, before the House was asked to approve action in Syria. I accept that what he did not make available at that stage was the full advice, but it is a clear precedent for the publication of details before a vote. In other words, when the House is coming to an important moment and making a decision of this kind, the convention of non-disclosure is open to exceptions. This is clearly an exceptional case.

Secondly, the nature of this advice means that it is not the same as other advice that the Law Officers give. The advice here is about what the proposed provisions in a treaty mean, and that is different from the advice that the Law Officers often give. Sir Oliver Heald may recall that, when he was Solicitor General, he gave a lecture on this very topic and set out that the core function of the Law Officers in giving their usual advice was to ensure that the Government and the Ministers act lawfully. That advice is given, as I and many other people in this House know, on a regular basis, and there are reasons why confidentiality has to be attached to it. It is, by its nature, advice to the Government, or even to individuals, on whether they are acting lawfully. They may often be in a position where somebody wants to challenge them directly about the legality of what they are doing. In those circumstances, the rule of non-disclosure applies.

The advice that would be subject to this motion is a fundamentally different type of advice that the Cabinet is seeking, because it is about the general interpretation of an important provision in the treaty, I assume so that the Cabinet can be assured about how it would work. Equally, the House could be assured about how it would work.

Photo of Oliver Heald Oliver Heald Conservative, North East Hertfordshire

The point I am making to the right hon. and learned Gentleman is partly about the sequence of events. At the point where the Government have made an agreement and the matter is being put to the House, clearly the Government will need to be able to justify their legal position and what they believe the agreement means. But at this stage advice is being given, no doubt on a range of options, and often the question whether something is lawful is also a question of how arguable a particular position might be, what the various options are, and perhaps what the Solicitor General or Attorney General thinks is the best option legally. Those points should not be in the public domain. It is the final legal position that should be made clear.

Photo of Keir Starmer Keir Starmer Shadow Secretary of State for Exiting the European Union

I am grateful for that intervention, which builds on our previous exchange. I agree; this is in relation to the final advice about the interpretation of the proposed withdrawal agreement and in particular any backstop arrangement that may be put in place.

Photo of Vicky Ford Vicky Ford Conservative, Chelmsford

I am deeply unclear—are you asking for publication of the final advice or of any legal advice in full that has happened during the entire negotiation? [Interruption.] With due respect, I am being asked for my vote regarding the motion on the Order Paper. Are you asking for what is on the Order Paper, which is,

“any legal advice in full”— that is, during the whole negotiation? Are you asking me to vote in—

Photo of John Bercow John Bercow Speaker of the House of Commons, Chair, Speaker's Committee on the Electoral Commission, Chair, Speaker's Committee for the Independent Parliamentary Standards Authority, Chair, Commons Reference Group on Representation and Inclusion Committee

Order. Will the hon. Lady please resume her seat? I understand that she is seeking clarification, but her intervention is too long and she keeps saying “you”. I am not asking for anything; that is quite important.

Photo of John Bercow John Bercow Speaker of the House of Commons, Chair, Speaker's Committee on the Electoral Commission, Chair, Speaker's Committee for the Independent Parliamentary Standards Authority, Chair, Commons Reference Group on Representation and Inclusion Committee

Well, I am making a judgment that the right hon. and learned Gentleman has heard the thrust of what the hon. Lady has said. I am not debating that point with her. If she wants to intervene again in due course, she can try to do so, but perhaps she would do me the courtesy of acknowledging that I do know how to chair in this place. I call Sir Keir Starmer.

Photo of Vicky Ford Vicky Ford Conservative, Chelmsford

Will the right hon. and learned Gentleman give way?

Photo of Keir Starmer Keir Starmer Shadow Secretary of State for Exiting the European Union

No, I will not. I have barely started responding to the hon. Lady’s last intervention.

I have set out clearly three times—not for the sake of an intervention, where there is an element of deliberately not listening, but for the benefit of the House—precisely what we are asking for, and I do not think I could be any clearer.

Photo of Jim Cunningham Jim Cunningham Labour, Coventry South

Like a number of other Members, I was here when we got legal advice over the war in Iraq, so when the Government come back with their proposals—regardless of the wording of the motion on the Order Paper—I will want to know whether what we are doing is legal. That is the important point for me.

Photo of Keir Starmer Keir Starmer Shadow Secretary of State for Exiting the European Union

I am grateful for that intervention. I think that everybody across the House will want to know the legal ramifications of the decision that we are being asked to make, which is precisely why this advice should be disclosed at that stage.

I will now develop my third point, which is that legal professional privilege operates differently in relation to the advice of Law Officers than it does to other lawyers. That is an overlooked legal point, but an important one. Let me give the House two examples. First, legal professional privilege applies in ordinary civil litigation, but in general the Government waive that privilege when advice is central to the importance of the case and withholding it might prevent the court from reaching a conclusion that is fair and in the overall public interest. The ordinary rules of confidentiality that apply to all legal proceedings are waived as a matter of convention by the Government even when they are engaged in civil litigation, which is where such rules would be at their height, if they would prevent the court from reaching a conclusion that may not be fair or otherwise in the public interest. In other words, there is a public interest element that comes into the operation of privilege when it applies to the Government.

Photo of Keir Starmer Keir Starmer Shadow Secretary of State for Exiting the European Union

I see the Solicitor General agreeing; he knows this because he operates this way all the time in the advice that he provides.

The second example is that section 42 of the Freedom of Information Act 2000 provides an exemption for the disclosure of information from the Law Officers that attracts legal professional privilege, but it only applies if the public interest in withholding outweighs the public interest in disclosure. In other words, there is an overriding public interest test in relation to advice provided by the Law Officers that does not apply in the same way to lawyers in private litigation.

My fourth point is a very important one. Confidentiality and privilege can justify non-disclosure, but what the Government cannot do is waive the rule for some MPs and not for others. There are a number of important individuals and groups of MPs whom the Government may well find themselves wanting to persuade to back their deal. In order to do so, they might be tempted to share the advice with those individuals to persuade them of the legal ramifications of the backstop.

I know that the Democratic Unionist party in particular—and everybody who represents anybody in Northern Ireland—is very concerned about that for obvious reasons, and I think I am right in saying that its Members have called for the legal advice to be published. It is acutely important to those in Northern Ireland, but I say to the Government that it cannot be acceptable to share the advice, or bits of the advice, with some in this House and not others. Therefore, if there is any proposal or suggestion that it is to be or might be shared with individuals in relation to this vote, it cannot then not be shared with others, because the ring of confidentiality and privilege will have fallen away, and there could be no justification for it not being available to all.

Photo of Wayne David Wayne David Shadow Minister (Defence) (Armed Forces and Defence Procurement)

Is my right hon. and learned Friend aware of any precedent for such a differentiation?

Photo of Keir Starmer Keir Starmer Shadow Secretary of State for Exiting the European Union

No, I am not. I think I would be right in saying that if any advice was shared outside the ring of confidence, confidentiality would fall away as a basis for non-disclosure to the House. That must be right in principle; it cannot possibly be right that some in this House have seen bits or all of the advice and others have not.

Photo of Dominic Grieve Dominic Grieve Conservative, Beaconsfield

I agree entirely with the right hon. and learned Gentleman. If the advice were prepared for the Cabinet in order for it to act collectively in taking its decisions, but it were then shared more widely outside, I agree entirely that it ought to be shared with every Member of this House at that point.

Photo of Keir Starmer Keir Starmer Shadow Secretary of State for Exiting the European Union

I am grateful for that intervention. I had the privilege of working with the right hon. and learned Gentleman when he was Attorney General, so I know how carefully he attended to his work.

Photo of Chris Bryant Chris Bryant Chair, Finance Committee (Commons)

Will my right hon. and learned Friend also be clear that this must extend to Parliamentary Private Secretaries, who they are not members of the Government and are not bound in the same way under the ministerial code? Ministers tend to refer to bits and pieces of the legal advice, which is why it is important to see the whole of the legal advice in the round.

Photo of Keir Starmer Keir Starmer Shadow Secretary of State for Exiting the European Union

I am grateful for that intervention and agree on both fronts, particularly on summary or editing. In my time as a lawyer, I saw various attempts to edit or summarise legal advice. Even done with the best of intentions, it can lead to some misinterpretation of the advice that has been given.

There is a convention, but it is subject to exceptions and this is an exceptional case. There is good reason and good precedent for publishing this advice, and it is the right thing to do. I think there is growing cross-party support for that, and rather than fighting this unnecessary battle with Parliament, the Prime Minster should accept the motion and agree to publish the full advice.

Photo of David Lidington David Lidington Chancellor of the Duchy of Lancaster, Minister of State (Cabinet Office) 1:38 pm, 13th November 2018

May I first genuinely express my appreciation to Keir Starmer for the courteous and constructive way in which he has presented his case? As will become apparent to the House, I take issue with some of his arguments, but I hope that we can continue this debate in such a tone. As he said, we are dealing with issues of the most fundamental, political, constitutional and legal importance—not just to us, but more importantly to the people who send us here and whom we are here to represent.

As the right hon. and learned Gentleman acknowledged, the proposed withdrawal agreement—as it is referred to in today’s motion—has not been finalised. There is a live negotiation still ongoing in Brussels and the Government have consistently said that we will not provide a running commentary on our negotiating position. It is a cardinal principle of our system of government that Ministers and officials need to be able to prepare the British negotiating position in private. After all, the European Commission does not show its hand in negotiations—nor does it publish the legal advice underpinning its position on live negotiating issues—and I do not believe the Government of the United Kingdom should be expected to do so either.

I want to make it clear that I welcome the acknowledgement by the right hon. and learned Gentleman that what he seems to be seeking through this motion is perhaps not quite as all-embracing as a literal reading of the motion would lead the House to conclude. I did have some preliminary analysis done yesterday after we got sight of the Opposition’s motion. The first conclusion we came to is that if we took the wording of the motion literally, then, at a conservative estimate, we could be looking at upwards of 5,000 different pieces of documentation going back over the two years since the referendum and covering, of course, matters deriving not just from the Law Officers’ Department but from legal advisers in every Government Department in Whitehall.

However, I completely understand the concern that the right hon. and learned Gentleman has expressed, which is, I think, felt in all parts of the House by hon. Members of all political parties, that if and when—I hope when—a withdrawal agreement comes forward for debate in Parliament, right hon. and hon. Members should have access not only to an economic and political analysis of what we are being asked to approve or disapprove, but to detailed legal analysis of the meaning and the implications of the agreement.

Of course, one option is that the House or one of its Committees should itself commission its own independent legal advice separate from the Government’s, but I accept that it is a perfectly fair request to be made of Government that we set out the legal implications, as we see it, of the agreement, should we successfully conclude these negotiations. To avoid any risk of misunderstanding, I want to make it clear that when I talk about the agreement, I also refer to any protocols that might be attached to such an agreement.

Photo of Andrew Mitchell Andrew Mitchell Conservative, Sutton Coldfield

I am extremely grateful to my right hon. Friend for the tone that he is using in this debate. In his penultimate paragraph, it seemed that he came quite close to accepting the spirit of what the Opposition are saying. I am no lawyer, but the House is about to vote on this agreement, with Members carefully considering what may be one of the most important votes that we take in our political lifetime, in the light of what is in the best interests of their constituents and their country. Would it not assist the Government in securing the support of the House if, exceptionally and in a spirit of good will on this frankly unprecedented occasion, they released the Attorney General’s advice?

Photo of David Lidington David Lidington Chancellor of the Duchy of Lancaster, Minister of State (Cabinet Office)

I will come on to the specific issue of formal advice from the Law Officers in due course slightly later in my speech, but I first want to conclude the point I was making about the Government’s approach. I hope that, as my right hon. Friend suggested, what I say will be read as an attempt to find some common ground across the House, even if there is not complete agreement.

Photo of Tom Brake Tom Brake Liberal Democrat Spokesperson (International Trade), Liberal Democrat Spokesperson (Exiting the European Union)

Can I ask the Minister something before he moves on? He referred earlier to the importance of providing not only some legal advice but economic analysis. Can he confirm that that economic analysis will include the merits or otherwise of our staying in the European Union?

Photo of David Lidington David Lidington Chancellor of the Duchy of Lancaster, Minister of State (Cabinet Office)

If I may, I will answer the right hon. Gentleman while also responding to something that was said by the Opposition spokesman when he referred to the commitment that, yes, is there in the White Paper that the Government published earlier this year to provide Parliament with information and analysis ahead of the meaningful vote. I want to agree and accept on behalf of the Government that that information and analysis should include not only such things as impact assessments, which the Opposition spokesman mentioned, but a legal analysis as well.

In specific response to Tom Brake, we certainly do intend to provide an economic analysis. The Under-Secretary of State for Exiting the European Union, my hon. Friend Suella Braverman, will have heard what he has proposed one of the options should be.

Photo of Chris Bryant Chris Bryant Chair, Finance Committee (Commons)

I am glad that the Minister recognises, I think, that no Opposition Member is trying to drive a coach and horses through the fundamental principle that the Government should be able to take confidential legal opinion and advice during a live negotiation. None of us is seeking to transform that. However, we need to be able to understand in full all the parameters of why the Government, when they come forward with a deal, believe that it is going to be legally watertight and practicable.

Let me give just one example. The Government are saying at the moment that it is impossible to implement the Sanctions and Anti-Money Laundering Act 2018 until such time as we finish the transition period—in other words, not for another two years. Why on earth is that the Government’s legal position? When every other Government in Europe is able to implement their own sanctions, why cannot we do our own now? We would like to see the legal advice behind that.

Photo of David Lidington David Lidington Chancellor of the Duchy of Lancaster, Minister of State (Cabinet Office)

That particular point is a matter to be followed up with the Ministers in charge of that particular legislation. However, I recall from my time at the Foreign and Commonwealth Office discussions with other European Governments about sanctions policy, and it was very clear that, I am afraid, contrary to what the hon. Gentleman said, a number of EU countries have, while remaining members of the European Union, given up the right to set their own policies on sanctions and rely on European Union instruments in order to give effect to those policies.

Photo of Chris Bryant Chris Bryant Chair, Finance Committee (Commons)

Unfortunately, though, when the Minister was a Minister in the Foreign Office, he himself, quite rightly, introduced sanctions on Iran that were not being implemented by the European Union, so we are perfectly free to introduce our own sanctions, and if they should be against Russia, we should do so now.

Photo of David Lidington David Lidington Chancellor of the Duchy of Lancaster, Minister of State (Cabinet Office)

In the case of the United Kingdom, we have some sanctions, while members of the European Union, that are applied by virtue of European Union instruments, and there are others additional to those that we have had the freedom to apply on our own. It would probably be unwise of me to try to supplant Ministers in the Department for International Trade and get into the detail about this, but I am sure that the Secretary of State will be only too delighted to listen in detail to the hon. Gentleman’s concerns.

I want to return to the main point that the shadow Secretary of State put to me.

Photo of David Lidington David Lidington Chancellor of the Duchy of Lancaster, Minister of State (Cabinet Office)

All right. Then, if the House will forgive me, I will try to make some progress, because there are some really important points that I want to respond to.

Photo of Owen Smith Owen Smith Labour, Pontypridd

In the light of the Minister’s very welcome admission that the Government are to publish economic analysis on the withdrawal agreement, and in the light of his failure to deny on Radio 4 this morning that Britain may well be worse off as a result of leaving the European Union, could he confirm that that analysis will measure whether we will be worse off leaving versus remaining in the European Union?

Photo of David Lidington David Lidington Chancellor of the Duchy of Lancaster, Minister of State (Cabinet Office)

There will be considerable economic analysis. I do not know quite how great the hon. Gentleman’s appetite for the detail will be, but I am sure that in addition to what is provided by the Government, there will be multifarious pieces of advice and analysis from outside organisations.

I want to make it clear that the Government fully understand the historic nature of the decision that Parliament will be asked to take. Frankly, as someone who feels sometimes as if I have been living through these issues for a considerable number of years, I think that nothing would be served by coming out of the debates that we will have on the meaningful vote and then, if approved, the implementation Bill with people feeling that they were not in full possession of the arguments and the evidence in order to take a decision. When we come through this particular period in our history, we have—all of us, from our different political perspectives—to find a way of moving on, to establish this country’s new relationship with our neighbours, friends and allies in the EU27 and to get on with the debates and the work on domestic policy issues, which I certainly find are what people raise first on the doorstep, rather than the detail of article 50 procedures.

I want to give a commitment to the Opposition and the House. We will make available to all Members of the House, following the conclusion of negotiations and ahead of the meaningful vote, a full reasoned position statement laying out the Government’s political and legal position on the proposed withdrawal agreement, including any protocols that might be attached to it.

In addition, my right hon. and learned Friend the Attorney General has authorised me to confirm to the House this afternoon that he is ready to assist further by making an oral statement to the House and to take questions from Members in the normal way. I think that that would go a lot further than the Libya precedent cited by the right hon. and learned Member for Holborn and St Pancras.

Ministers are also very willing to engage in further discussions with colleagues of all political parties, including the Opposition spokesmen, about how best, in terms of both substance and timing, we can provide analysis in the form that Members will want and need in order to make an informed decision when that is presented to them.

Photo of Sylvia Hermon Sylvia Hermon Independent, North Down

Will the right hon. Gentleman give way?

Photo of David Lidington David Lidington Chancellor of the Duchy of Lancaster, Minister of State (Cabinet Office)

I will just refer to the hon. Lady before I give way. I thought it was perfectly reasonable of her to ask for the analysis to include the impact that a possible Northern Ireland protocol might have on Belfast agreement commitments. I would certainly see that as the kind of thing that Ministers should be discussing with her and other colleagues from Northern Ireland, to ensure that we include everything they want.

Photo of Sylvia Hermon Sylvia Hermon Independent, North Down

I am grateful to the right hon. Gentleman for allowing me to intervene. Can he be absolutely clear in what he is saying to the people of Northern Ireland and confirm today that the people of Northern Ireland will not be kept in the dark by the British Government as to the exact legal consequences for the Belfast/Good Friday agreement of any negotiated deal by the British Government in good time, before we have to vote on this deal?

Photo of David Lidington David Lidington Chancellor of the Duchy of Lancaster, Minister of State (Cabinet Office)

I am happy to give that assurance, and to say further that the relevant Ministers will be happy to talk to the hon. Lady and other Members representing Northern Ireland constituencies about exactly what form of analysis should be presented to the House, so that people in Northern Ireland can understand clearly both what is being proposed in any potential withdrawal agreement and what the legal, constitutional and practical implications of that might be.

Photo of Dominic Grieve Dominic Grieve Conservative, Beaconsfield

I am most grateful to my right hon. Friend for giving way. I was very pleased to hear the assurances he just gave as to how the Government would proceed and how the Attorney General would play a part. Might my right hon. Friend also take on board the fact that, if we come to debate this matter on the Floor of the House, it has been a custom—although one that may have fallen by the wayside—for there to be a Law Officer sitting on the Treasury Bench during the debate who is able to respond to any queries of a legal nature that might arise?

Photo of David Lidington David Lidington Chancellor of the Duchy of Lancaster, Minister of State (Cabinet Office)

My hon. and learned Friend the Solicitor General tells me that he looks forward to being there. It is not really for me to speak for the Law Officers, but I know that both the Solicitor General and the Attorney General are utterly committed to their parliamentary and governmental responsibilities.

Photo of Robert Courts Robert Courts Conservative, Witney

I am grateful to the Minister for the commitment he just gave, but it sounded very similar to the compromise amendment that stands in my name on the Order Paper but has not been selected. Will he clarify that it is a full reasoned position statement laying out the Government’s political and legal position?

Photo of John Bercow John Bercow Speaker of the House of Commons, Chair, Speaker's Committee on the Electoral Commission, Chair, Speaker's Committee for the Independent Parliamentary Standards Authority, Chair, Commons Reference Group on Representation and Inclusion Committee

That was a cheeky endeavour on the part of the hon. Gentleman. We cannot debate the terms of an amendment that has not been selected, and the House will know that reasons are not given for non-selection; I had to make a judgment about how best the debate was served. It is rather cheeky, but I am sure that the Minister can deal with it dexterously.

Photo of David Lidington David Lidington Chancellor of the Duchy of Lancaster, Minister of State (Cabinet Office)

I have been here long enough to know that one should accept rulings from the Chair, but I can say to my hon. Friend that our intention in Government is to provide the kind of analysis that I believe he has been seeking, but which also meets the requests and calls of Members of all shades of opinion on the European issue, not just in my party but in all parts of the House.

I want to put on the record that there have already been discussions through the usual channels on a cross-party basis about how the Government can facilitate the briefing of Members in every party represented in this House. I can give the House a further commitment that those contacts and conversations will continue.

Photo of Kevin Hollinrake Kevin Hollinrake Conservative, Thirsk and Malton

What my right hon. Friend is setting out seems to be more or less what the shadow Secretary of State was asking for. Can he confirm that, if we were called to vote on this motion, we would be voting on something entirely different, which would be to produce all legal advice in connection with this matter?

Photo of David Lidington David Lidington Chancellor of the Duchy of Lancaster, Minister of State (Cabinet Office)

I always try to build bridges. I hope that what I have said is of some assurance to colleagues in all parts of the House. As I said earlier, I think that the motion as worded goes wider than what the right hon. and learned Member for Holborn and St Pancras, in all fairness to him, was clear about in his introductory speech.

Photo of Neil O'Brien Neil O'Brien Conservative, Harborough

I am incredibly thankful to my right hon. Friend for his thoughtful tone in this debate and for the important reassurances he has given to the House, but could he give me one more reassurance, which is that he opposes in principle the thin end of the wedge on the Order Paper? I worked with brilliant civil servants for five years, and if they had to give any legal advice in full, written as if it were for publication every single time, their jobs would simply be impossible.

Photo of David Lidington David Lidington Chancellor of the Duchy of Lancaster, Minister of State (Cabinet Office)

I want to come on to that point now. Where I part company with the Opposition motion is over the proposed disclosure of Law Officers’ formal advice. Everyone in the House will know that there is a strong long-lasting constitutional convention, followed by Governments of all political parties, that the opinions of the Law Officers remain confidential. That is reflected in the words of the ministerial code, which seeks to balance the Government’s twin duties of accountability to Parliament and maintaining confidentiality where necessary and appropriate. The code explicitly provides that

“Ministers should be as open as possible with Parliament and the public,” but also expressly notes that the advice of Law Officers and even the fact that such advice has been sought or obtained

“must not be disclosed outside Government without their authority”— that is, the authority of the Law Officers themselves.

Furthermore, “Erskine May” on page 447 specifically states that

“the opinions of the law officers of the Crown, being confidential, are not usually laid before Parliament, cited in debate or provided in evidence before a select committee, and their production has frequently been refused”.

“Erskine May” goes on to explain that

“The purpose of this convention is to enable the Government to obtain frank and full legal advice in confidence.”

Successive Governments have upheld that principle because the work of Government—Governments past, present and future, of different political persuasions—benefits from receiving such frank, confidential advice. The convention exists for very fundamental constitutional reasons, and to uphold the rule of law.

The right hon. and learned Member for Holborn and St Pancras referred to the entrenched tradition of privileged legal advice: in this country, we operate on the basis that advice given by a lawyer to his or her client, whether an individual, a corporation, the Government or a political party, should be treated as confidential. Although he cited exceptions to that, those exceptions were about litigation in court, rather than about the circumstances we are deciding here.

Photo of Oliver Heald Oliver Heald Conservative, North East Hertfordshire

Does my right hon. Friend accept that, in giving advice, the Law Officers are often looking at questions of a very sensitive nature with an international content, that it is not always about a case that is going to come before a court in the UK, and that often it would be very difficult for our country if all the advice and various options and what the Law Officers’ are saying about them had to be laid out?

Photo of David Lidington David Lidington Chancellor of the Duchy of Lancaster, Minister of State (Cabinet Office)

My right hon. and learned Friend is spot on. The Law Officers’ advice goes beyond other forms of legal advice in its particular complexity, sensitivity and constitutional importance. For that reason, there is a high premium—higher even than that in respect of other forms of legal advice—on protecting that advice.

The Law Officers convention is also a facet of the important constitutional convention of collective Cabinet responsibility. Again, the ministerial code is clear on this. It says that all members of the Cabinet must publicly support collective decisions, but are able within Cabinet to debate and raise concerns privately, and the Law Officers’ contributions to those Cabinet discussions and decisions should similarly be protected, just as the contributions of other Cabinet Ministers or the minutes of Cabinet meetings themselves are protected. That ensures that the public debate is about the Government’s collective decision and the Government’s accountability to this House, rather than about internal processes.

Where the right hon. and learned Member for Holborn and St Pancras was correct was to say that, in the case of the Iraq war and Lord Goldsmith’s advice, an exception was made to this general rule. It is certainly the only one of that nature in modern times that I have been able to find so far. However, it was done some years—two years—after the event, following the appearance in the media of selected verbatim extracts from the advice. However, the key difference between that case and what we are debating this afternoon is that, in the Iraq case, the point at issue was not the legal implications of particular policy options, but whether the Government’s entire action in Iraq was or was not lawful. That was the point at issue then, which is why the then Government decided that it was right for them to make an exception to what is normally a very firm convention.

I believe that, if this convention were to be set aside, there would be an adverse impact on the quality of discussions within Government and of the Government’s collective decision making, which would not be in the interests of any Government of any political party. Whether by means of resolutions of the House or otherwise, if Law Officer advice is made public, future advice is likely to be less frank and candid than at present and less likely to be written down. That is not going to make for good government.

Photo of Joanna Cherry Joanna Cherry Shadow SNP Spokesperson (Justice and Home Affairs), Shadow SNP Spokesperson (Justice), Shadow SNP Spokesperson (Home Affairs)

Is there not another aspect to this? A number of the Minister’s Cabinet colleagues have said that they did not properly understand the legal implications of what was agreed to last December. That is of course what has led to the dilemma in which the Government now find themselves about the backstop. If the Cabinet were not able to understand the legal advice last December, surely that means they will not understand it this time round and it is important that this House, which will take the ultimate decision, fully understands the legal implications of what is about to be agreed to, if indeed there is going to be an agreement.

Photo of David Lidington David Lidington Chancellor of the Duchy of Lancaster, Minister of State (Cabinet Office)

I go along with the hon. and learned Lady this far: I have set out how the Government intend to discharge the commitment that we have given to making sure that Members in all parts of the House are fully informed and do understand the nature of the legal, as well as the economic and political, implications of the decision that we are facing. However, at no time in our Parliament’s history has any Government operated in an environment where legal advice is prepared for Ministers one week and then made public the next.

I have to be clear that this motion does go against the Law Officers convention, which Governments of all colours have defended. I hope, therefore, that, during this debate, the right hon. and learned Member for Holborn and St Pancras and his colleagues will reflect on the assurances I have sought to give to the House this afternoon; will take them in the spirit in which I, on behalf of the Government, certainly intend them; and will, having reflected on these matters, decide not to press their motion to a Division, but to go forward in a spirit of cross-party consensus, so that we can work out together how to present to the entire House the information and analysis that Members on all sides rightly expect to have available in order to make an informed decision on a political issue of this historic importance.

Photo of Peter Grant Peter Grant Shadow SNP Spokesperson (Europe), Shadow SNP Spokesperson (Exiting the European Union) 2:06 pm, 13th November 2018

I am grateful for the chance to lead for the SNP in the debate. May I commend Opposition Front Benchers for allocating time to debate what is clearly a fundamentally important question? While I agree that the wording of the motion could have been tighter, the Government had to amend their own European Union (Withdrawal) Bill about 100 times in the Lords because the version that had passed through the Commons was such a mess that the finest legal minds in the country did not have a hope of making any sense of it.

I note with some encouragement the comments from the Minister, and it seems to me that there is a way of getting some kind of agreement. What is fundamentally important, however, is that when 650 of us take the most important decision we will ever take in our lives—short of a decision to go to war—every one of us is absolutely certain that we are armed with the best information and advice that can possibly be given.

Photo of Thomas Tugendhat Thomas Tugendhat Chair, Foreign Affairs Committee

Does the hon. Gentleman agree that there are other avenues for getting that advice? I have been approached by any number of legal charities, which have offered advice on many different things, but particularly on the EU. I know that Speaker’s counsel has been extremely generous in giving advice to Select Committee Chairs, and such advice is certainly available to me. I also know that many other people in the House can give advice—not least the Opposition spokesman, Keir Starmer, whose legal intellect is, frankly, second to none. The ability to acquire legal advice in this place is enormous, so it seems odd to force the Government to disclose their own advice, and therefore to undermine their own ability to pursue a case, when other avenues are available.

Photo of Peter Grant Peter Grant Shadow SNP Spokesperson (Europe), Shadow SNP Spokesperson (Exiting the European Union)

I was about to say something very similar. Others in this House are much better qualified than me to decide what mechanism would best make sure that all Members of Parliament have possession of the facts, information and advice that we need. Whether that is achieved through the exact wording of the motion or a better way can be agreed in discussions elsewhere is not for me to rule on.

I come to this debate with one significant disadvantage compared with a lot of others who will take part in it, and with one significant advantage. The significant disadvantage I have is that I am not, have never been and never intend to be a lawyer. The significant advantage I have is that I am not, have never been and have no intention to be a lawyer. That means that I have no conflict of interest in saying that the law and lawyers are there to serve the public. Parliament and parliamentarians are here to serve the public, not the other way round. In this context, the law and lawyers are here to serve Parliament; Parliament is not here to serve the lawyers.

A number of really extraordinary concerns have been raised about what the motion, amended or otherwise, would mean if it was agreed. As far as I can see, this is not about abolishing the convention that legal advice is privileged or confidential, or about insisting that from now on every Attorney General who ever gives evidence has to do so on the assumption that it will be on the front page of the Daily Express by the next day. It is not about that at all. Simply reading the wording of the motion makes it perfectly clear that that is not what is being asked for.

I have heard concerns from Conservative Members. People are worried that they will be expected to vote for something but then, after they have done so, somebody else will interpret what their vote actually means. Some of us have been thinking about that since 23 June 2016, because that was exactly what happened to 33 million people after they cast their vote in the EU referendum. There is a significant danger that that is precisely what has been set up to happen to us when we are asked to vote on the Government’s deal or no deal. We will be asked to give a commitment to agreeing to something without really understanding what we are being asked to vote for. When something is so fundamentally important, that is simply not acceptable.

We should be under no illusions whatsoever about the consequences of our getting it wrong when we come to vote on a proposed deal. Whether we end up with a bad deal or no deal, the Government’s own analysis points to an economic hit that would be bigger than the crash of 2008, including a 9% reduction in economic growth; hundreds of thousands of jobs put at risk; £2,300 per year out of the pockets of every family in Scotland; the rights of millions of citizens called into question; and, as has been mentioned, the very real risk of undermining that precious but fragile peace that allows people on both sides of the Irish border to do what most of the rest of us take for granted—live normal lives. It would be a criminal dereliction of the duties entrusted to us if we willingly took that decision in the knowledge of the possible consequences and the fact that there was expert advice about what those consequences might be, but did not even ask what that advice said.

Photo of Angus MacNeil Angus MacNeil Chair, International Trade Committee

My hon. Friend hits on a very important point about the best possible deal for Britain, or a good deal or whatever—I think I heard that on Radio 4 this morning. The reality is that whatever deal is good at the moment is the equivalent of having crashed the Rolls-Royce and heading down to the car shop to get the best second-hand car for Britain. What we have at the moment will not be repeated—things will be an awful lot worse—but the media are parroting a line and misleading the people. What happens under Brexit, deal or no deal, will be a lot worse than what we have today, and the chickens will come home to roost for this Government very quickly.

Photo of Peter Grant Peter Grant Shadow SNP Spokesperson (Europe), Shadow SNP Spokesperson (Exiting the European Union)

I am grateful to my hon. Friend for his comments. My views are perfectly clear: I do not think there is such a thing as a Brexit deal that can come close to being as good a deal as we have just now. If that argument is not going to be rerun—if we are not going to get a chance to correct the mistakes that have been made in the past—so be it, but it is my responsibility, and the responsibility of all of us, to make sure that the Brexit that is agreed is the least damaging that is possible.

I know that some Government Members will be concerned—some have already raised concerns—about setting a dangerous precedent. May I remind them that the Government’s mantra for months has been that this is an unprecedented situation? In an unprecedented situation, precedents do not apply. How can what we do in response to an unprecedented situation set a precedent for what happens next, unless the Government propose to hit us with more unprecedented disasters through their own blundering incompetence?

Photo of Paul Masterton Paul Masterton Conservative, East Renfrewshire

Earlier this year, when the Lord Advocate was asked to release some of the legal advice that he gave to the Scottish Government, Mike Russell stood in the Scottish Parliament and said that that would not be done because it would set a very dangerous precedent, repeating much the same justification that we have heard today. Will the hon. Gentleman explain why those justifications made by the Scottish Government were acceptable, but when those same justifications are made by the UK Government, they are objectionable?

Photo of Peter Grant Peter Grant Shadow SNP Spokesperson (Europe), Shadow SNP Spokesperson (Exiting the European Union)

As the hon. Gentleman knows perfectly well, the two situations are not only not identical but significantly different. Members of the Scottish Parliament were not about to be asked to cast a binding and final vote on the most important decision they would ever take, to take part in a vote that could have cost £2,300 for every family in the country, or to agree to something that would take 9% off the economy. They were not about to be asked to vote on anything, so the two situations are significantly different.

I am glad, however, that the hon. Gentleman raises the example of Scotland, because the “Scottish Ministerial Code” explicitly recognises that there will be exceptional circumstances when it is in the balance of public interest to disclose legal advice—either in its entirety or in part—that has been given to Ministers. Having raised the question of Scotland, the hon. Gentleman has actually destroyed one of the biggest arguments that those on his own side make. If the argument is—[Interruption.]

Photo of John Bercow John Bercow Speaker of the House of Commons, Chair, Speaker's Committee on the Electoral Commission, Chair, Speaker's Committee for the Independent Parliamentary Standards Authority, Chair, Commons Reference Group on Representation and Inclusion Committee

Order. There is a mildly disorderly atmosphere in the House. The hon. Gentleman who speaks from the Scottish National party Front Bench is, in my experience, unfailingly courteous and a mild-mannered fellow—[Interruption.] Order. I do not know what he says on Twitter. An hon. Member chunters from a sedentary position that Peter Grant is not quite so obliging or courteous on Twitter. I do not waste my time listening to those ruminations, which are of no interest whatever to the Chair. I am simply saying that the hon. Gentleman ought to be able to develop his argument without excessive noise.

Photo of Peter Grant Peter Grant Shadow SNP Spokesperson (Europe), Shadow SNP Spokesperson (Exiting the European Union)

Thank you, Mr Speaker. As I was saying, if the Government’s key argument is that it is unworkable to have a set of rules that allows legal advice to Ministers to be disclosed under exceptional circumstances, that is shown to be nonsense by the fact that in Scotland a different set of rules applies, and does so very effectively.

Related to the precedent argument is the claim that Parliament is not allowed to see Government legal advice under any circumstances. Why not? The reason given is simply that we are not allowed to. I would love someone on the Government Benches who believes in the absolute sovereignty of Parliament to explain why this supposedly absolutely sovereign Parliament is not allowed to do anything it likes, because that is the argument we often hear from them. I do not believe in the absolute sovereignty of Parliament, but for those who do, how can it be that there are any restrictions on what this absolutely sovereign Parliament can ask or instruct Ministers, who are accountable to it, to do on our behalf?

Photo of Peter Grant Peter Grant Shadow SNP Spokesperson (Europe), Shadow SNP Spokesperson (Exiting the European Union)

I will not take any more interventions.

As has been said, the last time there was such a significant argument about disclosure to Parliament or providing it with Government legal advice was probably in the run-up to the decision to go to war in Iraq. SNP Members and others in the House argued then that Parliament should have sight of the Attorney General’s legal advice before being asked to vote in favour of war. The SNP was vindicated, as were others. We were shown to be right in asking for that advice to be disclosed, but tragically it was too late for it to make any difference. At the time, Parliament was in possession of the equivalent of what today’s non-selected amendment asks for—the Government’s version of advice, and of such parts of arguments, and of information and intelligence dossiers, that the Government wanted Parliament to see—but not of anything that did not suit the Government. Parliament was given incomplete and, frankly, biased and misleading advice, and it made a catastrophically bad decision as a result. If we are worried about precedent, we should think about the precedent that that might set. I do not believe there is any chance that MPs would have supported the invasion of Iraq if they had been in full possession of the facts that the Government had at the time.

Two days ago, I laid a wreath at a memorial to two young men from Glenrothes who I am convinced would be alive today if Parliament had had such advice at the time it took that decision. I am not suggesting, and nobody should suggest, that a bad decision on Brexit will lead directly to thousands of deaths, but it will lead to enormous financial hardship and huge social upheaval for millions of citizens—perhaps tens of millions—and it could set off an uncontrollable chain of events with the potential to result eventually in the deaths of innocent civilians in parts of these islands.

I want the House to be given the best possible opportunity to reach not the best Brexit decision, but the least worst Brexit decision. In order to do that, we need at our disposal all the advice and information that anybody has been able to provide. If parliamentary precedent or convention, or medieval practices, prevent us from doing our job properly, they have be to be either set aside or changed. The situation is too important to allow medieval procedures to get in the way of the right decision. The Government have already set aside the Sewel convention because we are in an unprecedented position. I suggest that the convention on the absolute confidentiality of legal advice has to be varied on this occasion to get us to the correct decision.

I want every MP who shares collective responsibility for the decision we will take in the near future to know that whether our constituents agree or disagree with our decision, each of us will have exercised our judgment in full possession of the facts. We will then be able to take the responsibility for the decisions that each of us will take. I urge the House to support the motion.

Photo of John Bercow John Bercow Speaker of the House of Commons, Chair, Speaker's Committee on the Electoral Commission, Chair, Speaker's Committee for the Independent Parliamentary Standards Authority, Chair, Commons Reference Group on Representation and Inclusion Committee

We are immensely grateful to the hon. Gentleman. The House will hear in a moment from Mr Dominic Grieve. I am not introducing a time limit at the start—I think there are colleagues from whom the House will want to hear—but we will have to keep it under review.

Photo of Dominic Grieve Dominic Grieve Conservative, Beaconsfield 2:20 pm, 13th November 2018

Thank you, Mr Speaker. I shall endeavour not to repeat what has already been said and to be brief.

First, I entirely understand the motivation that has led the Opposition and Keir Starmer to bring this motion before the House. I have, on a personal level, every reason to be deeply concerned about the legal implications of any potential Brexit deal. We have heard enough in the last few weeks to give rise to even greater concern about how it will affect our independence, the integrity of the United Kingdom and our ability to hold it together, and the power of Government in future to take independent decisions and not be fettered by a subsequent treaty to the one we are going to be leaving on 29 March, as well as a concern that those issues may come to a conclusion without being fully understood when we have to vote on them.

I have no idea whether the so-called leaked memo that came out a short time ago was correct or not. If it did come from within the Government, it suggested, frankly, a quite disgraceful timetable by which, on the conclusion of negotiations, the House would be bulldozed into starting a five-day debate and coming to a decision without, on the face of it, even time, as it seemed to be set out, for the Government to set out their position, which I would normally expect to be in a White Paper and supported by the Government’s full legal evaluation of the treaty changes taking place. It is often forgotten that in leaving the EU we may be getting rid of the European Communities Act 1972, but when we come on to consider the EU withdrawal agreement Bill, if we get to that point, we are going to be enacting a piece of constitutional legislation of immense importance which has huge significance for United Kingdom citizens living in Northern Ireland and the potential to give rise to great public disquiet. For all those reasons, the terms of the agreement we hope we reach will be of the utmost importance. In a nutshell, there is a big difference between a break clause and a review clause, as any lawyer will know, and it will be of the utmost importance to understand on which side of the line any Northern Ireland backstop lies.

That said, I have to say to the right hon. and learned Member for Holborn and St Pancras that the course he has sought to press this afternoon is a mistaken one. This goes to the very heart of the relationship between the Law Officers and Government. They are, as he knows, there to stand rather aside from the day-to-day thrust of politics. Indeed, it is noticeable that in recent weeks I should think it has been a nightmare for the current Attorney General. If he goes to have pizza with the Leader of the House, it is immediately assumed that he is siding with one faction within Government rather than another, something that has to be avoided at all costs. He has to maintain his independence. Above all, he has to speak truth to power. That is the absolutely fundamental part of his job.

Photo of Anna Soubry Anna Soubry Conservative, Broxtowe

Does my right hon. and learned Friend agree that at best, given the great force with which he speaks as a former Attorney General, the motion should be defeated and we should not be voting for it? Does he share my concern that I have been told I should abstain on this matter? I do not know why. I suspect it is because there is no majority. If that is the case, who is running the country: this Government or the European Research Group?

Photo of Dominic Grieve Dominic Grieve Conservative, Beaconsfield

I understand my right hon. Friend’s point. It will be a matter for the Government to determine how they wish to respond at the end of the debate. What I will seek to do now is to set out the reasons why I think the approach the Opposition have taken in the motion is mistaken, and I want to conclude as quickly as possible.

The Attorney General has to speak truth to power. In doing that, he must be in a position to produce legal advice to the Government which is there for their consumption. By demanding that it should be published, we are immediately beginning to skew that process, because it will be prepared with a view to publication. The right hon. and learned Member for Holborn and St Pancras made the point that there may be a difference between advice about what is lawful and a survey of what a treaty adds up to in terms of the obligations it places on this country. I would not be at all surprised if, for example, in the course of doing that the Attorney General might not have to respond to questions that have been transmitted to his office through Cabinet Ministers with queries which, although they may be irrelevant to his advice, might pertain to what had been said in the course of an international negotiation with a third party and therefore would be something we would not wish to put into the public domain. We cannot predict how such advice will be put together.

It seems to me that that precisely highlights why one should distinguish between advice that is produced by a Law Officer, subject to the usual rules of legal professional privilege—I agree with the right hon. and learned Gentleman that if it starts to be published partially it has to be shared with everybody; on that we all agree 100%—but that should be compartmentalised away from what we should be getting from the Government, which is a full statement of the Government’s legal analysis and their collective position. Doubtless, it will be heavily informed by the Law Officers’ advice. As I said, not entirely tongue in cheek, if the document setting out the Government’s legal position and their evaluation of the implications of the treaty is at variance with what the Attorney General has been saying to the Cabinet in informing them as to whether to accept the decision or not, I would not expect the Attorney General to still be in post by dusk that evening. It would be his clear duty to leave office immediately, because he could not continue to work as a Minister within the Government.

I therefore believe, particularly in the light of the assurances given by the Chancellor of the Duchy of Lancaster and Minister for the Cabinet Office, my right hon. Friend Mr Lidington, that in those circumstances and with the assurances he has provided, the House is now beginning to get the reassurance it requires that, first, this process, when it comes to a deal, will be taken in a measured and sensible way, and with a full opportunity for Members to consider the legal implications properly; and secondly, as I suggested, a Law Officer, who customarily can sit on the Government Benches and intervene in debate does so as we go through the Bill to clarify points that may need clarification. That used to be done all the time. I tried to restore it, but for various reasons it seemed to have gone out of fashion when I was in opposition. My hon. and learned Friend the Solicitor General has been pretty assiduous at doing that, and the Attorney General can do it too. That should lead to the House having all the information it needs without breaching a convention which in my view, for the very reasons I have just heard also apply for the Scottish Government, is really important. I do not think it is necessary or desirable that we should be considering such a breach for the purposes of reaching the proper conclusion to these very important debates.

I simply urge the House to consider carefully what has been said and express the hope that it will be possible to proceed in a way that does not breach what I think is a really fundamental and important convention. As I know from my time as Attorney General, it is of the utmost importance that the dialogue between the Law Officers and Government, whom they are there to serve, can be carried—

Photo of Dominic Grieve Dominic Grieve Conservative, Beaconsfield

I give way to my right hon. and learned Friend.

Photo of Oliver Heald Oliver Heald Conservative, North East Hertfordshire

I am grateful—of course, my right hon. and learned Friend and I worked together in the Law Offices. Does he agree that one thing that people may not be aware of is the very wide range of issues of a legal nature, many of them sensitive, that come before a Law Officer? The reason for the precedent and the convention that we do not put advice into the public domain is that it is very important that these sorts of pieces of advice, on confidential matters of a very wide-ranging nature, should be private to the Government.

Photo of Dominic Grieve Dominic Grieve Conservative, Beaconsfield

Yes. The Government are the client and the relationship is between a client and a lawyer, providing completely disinterested, impartial advice to the best of their ability. Of course, on top of that, it is not holy writ either; it is advice. At the end of the day, if the House gets the Government’s statement of a legal position, it can indeed go to other lawyers, who may wish to pick it to pieces, and that, I am afraid, is often almost inevitable.

Photo of Dominic Grieve Dominic Grieve Conservative, Beaconsfield

I do wish to conclude, but I will give way.

Photo of Angus MacNeil Angus MacNeil Chair, International Trade Committee

Surely if the Government are the client, the client is at liberty to share the advice, and indeed the client should be sharing it, particularly in this circumstance.

Photo of Dominic Grieve Dominic Grieve Conservative, Beaconsfield

I understand the hon. Gentleman’s point, and at the end of the day it is right to say that the Prime Minister can waive the privilege. It is open to a Government to decide to publish the legal advice, but, speaking as a past Law Officer, first I would be dissuading the Government from publishing legal advice for the reasons that I have just given, and secondly, that is a different thing from this House trying to coerce the Government into publishing legal advice. In my view, that undermines good governance and does not serve a purpose that is in the public interest, particularly in the light of the assurances that we now have as to how the Government will proceed, and which, I might add, I shall make it my business to try to ensure that the Government honour—and I am sure they will.

With that, as I promised I would a few moments ago, I bring my remarks to an end.

Photo of Hilary Benn Hilary Benn Chair, Committee on Exiting the European Union 2:32 pm, 13th November 2018

This has been a very constructive and helpful debate, and it greatly illustrates the power of the House to concentrate the mind of the Government. I would say to Mr Grieve, who has just sat down, that I do not think Parliament doing its job is coercing the Government; it is Parliament doing its job.

I accept, as my right hon. and learned Friend Keir Starmer did at the beginning of his powerfully argued, forensic case, the argument that in general, Governments should not be required to release legal advice. It is a long-standing convention, contained, as we have heard, in the ministerial code, and the reasons for it are well understood. However, in this specific case, I would argue that we need to take other considerations into account. I note that the Minister quoted from “Erskine May”—he did so at some speed, but there was a word in there that I want to highlight. The sentence says:

“Therefore, the opinions of the law officers of the crown, being confidential, are not usually—

I emphasise “usually”—

“laid before Parliament, cited in debate or provided in evidence before a select committee”,

so “Erskine May” concedes that it is not an absolute bar.

The first consideration—this was the first reason that my right hon. and learned Friend the Member for Holborn and St Pancras set out—is the scale and importance of the decision that we are going to be asked to make. I do not think it is a subject of argument in the House that the withdrawal agreement that is currently being negotiated will have the most significant implications for the future of our economy, society, laws, and international obligations, including the Good Friday agreement. It will also have implications for the EU withdrawal agreement Bill, which the right hon. and learned Member for Beaconsfield referred to a moment ago. When we come to that Bill the House may well be told, “You need to agree to this clause, because that’s what we signed up to when we finalised the withdrawal agreement.” The current draft of the agreement—at least, the March version—is 129 pages; it is already very complex. If there is an agreement, the section on the obligations that we may take on in respect of the Northern Ireland backstop is likely to be even more complex still, judging by the reports that we read.

What seems to be going on at the moment is that the EU is insisting—this goes to the heart of some of the concerns that have been expressed about the withdrawal agreement—that the Northern Ireland-only backstop that it has proposed has to remain in the agreement, whereas the Government are arguing that the UK-wide customs backstop ought to be prioritised, so that the Northern Ireland-only version is never used. As we know, the problem with the UK-wide backstop is that in truth, if it ever comes to be used, it will have to remain in place. There are arguments having about a time limit, which I know the Minister understands, and about one party unilaterally deciding to pull the plug on the backstop. Neither of those can possibly be the case, because whatever backstop is applied, including the UK-wide backstop, it will have to remain in place unless and until something else comes along that achieves the same outcome, which is to keep the Northern Ireland border as it is today.

The backstop may well need to be used—how many people in the House actually believe that between now and December 2020, all the issues relating to our future partnership will be negotiated successfully? I bet that almost no one does. Apart from former Government Ministers who expressed great confidence that it was possible, nobody thinks that it will be. Therefore, in the absence of an extension of the transitional period, whatever backstop is agreed in the next day or two, if that is what happens, will have to come into effect. That is why we read that the EU side is trying to get clear commitments from the UK about single market rules, employment legislation, state aid and most recently, fisheries.

The irony is that having initially rejected the idea of a UK-wide backstop because it feared that it would pre-empt the negotiations on the future relationship, the EU then said that it was willing to discuss it, but now it realises that it has to work through and tie down a whole load of things, precisely because the backstop might last for a long time and, in effect, become the future relationship pro tem. The argument we are making is that the House, along with businesses and everyone else affected, needs to understand in particular the bit of the agreement that we have not yet seen and what legal obligations we will be taking on. That is the first point.

The second point is the argument for transparency. It pains me to say this, but it is true: throughout the process thus far, there has been a general reluctance on the part of the Government to release the information that we need. I say that as the Chair of the Exiting the European Union Committee, because it is an issue on which the Committee has expressed strong views. I think I am right in saying that this is the third occasion on which a motion for a Humble Address has been used to try to persuade Ministers to give us information and advice relating to the Brexit process. I will not go over the history of the impact assessments that never were or the exit analyses that we did eventually get to see, but suffice it to say that the magnitude of the Government’s choices about their strategy for implementing the referendum decision has not been matched by careful analysis of the impact of those choices. It still seems extraordinary to me that at the time of the announcement that the UK would be leaving the customs union, the Government had not undertaken a formal quantitative assessment of the economic impact of doing so. That was what the former Secretary of State told us when he appeared before the Committee. It is welcome that the Government have made commitments, repeated from the Dispatch Box today, that we will get a full economic assessment if there is a deal, but I gently say that it is far too late in the process.

It is now absolutely clear that the Government’s red lines have boxed them in, which is why we are having this discussion about the Northern Ireland backstop, and were never tested for their implications before they were announced. We are living with the consequences. The reason why there is a problem with Northern Ireland is precisely that the Government said on the one hand, “We are leaving the customs union and the single market,” and then on the other hand, “Oh, by the way, we want to keep an open border between the Republic and Northern Ireland.” As the negotiators are discovering late into the night and into the early hours, it is really, really hard to square that circle.

My final point is that this decision is not just for the Cabinet. Clearly, whether the Cabinet agrees will be important, but it is a decision for Parliament. Parliament therefore needs all the information it requires to do its job, including the legal advice. Ministers have argued that the advice cannot be released, but the Chancellor of the Duchy of Lancaster and Minister for the Cabinet Office said that a statement of the legal position could be published. The right hon. and learned Member for Beaconsfield made the really important point that the two cannot, by definition, be different—they must be the same.

Photo of Dominic Grieve Dominic Grieve Conservative, Beaconsfield

The thrust of the two must be the same, but it is possible for them to be worded differently, and for one to take account of all the factors the Attorney General was asked to take into consideration and the other to set out the Government’s collective position. That is the really important constitutional point. Provided that there is enough time for the statement to be properly considered, I think it ought to meet the need the Opposition have rightly raised.

Photo of Hilary Benn Hilary Benn Chair, Committee on Exiting the European Union

I absolutely bow to the right hon. and learned Gentleman’s expertise. I was going to make a second point, which may offer Ministers some comfort: also by definition, the legal advice the motion seeks to have released has not yet been written, because we do not yet have a withdrawal agreement. Only when we have a withdrawal agreement will advice be written about what it means, to advise the Cabinet and, I hope, Parliament.

Photo of Hilary Benn Hilary Benn Chair, Committee on Exiting the European Union

I will, and then I shall bring my remarks to a close.

Photo of Angus MacNeil Angus MacNeil Chair, International Trade Committee

Mr Grieve has just made clear why the legal advice, rather than a report on it, must be published. Remember Roger Casement, who said he was hanged on a comma—any change in wording seriously changes the meaning of the legal advice.

Photo of Hilary Benn Hilary Benn Chair, Committee on Exiting the European Union

I take the hon. Gentleman’s point, but I think the House agrees that there could not be a difference between the two, for reasons that Government Members have clearly set out.

These are unique circumstances. It seems to me that, in his typically elegant way, the Minister went a long way towards meeting the requirements of the motion. If it is pressed to a vote, I hope he follows the logic of his own argument and supports it in the Division Lobby.

Several hon. Members:

rose—

Photo of Victoria Prentis Victoria Prentis Conservative, Banbury 2:42 pm, 13th November 2018

It is a great pleasure to follow all the hon. Members who have spoken so far—they are certainly some of the gentlemen in this House I most admire. A great deal of sense has been talked in an extremely helpful tone.

I should in all conscience say at this point that, as a Treasury Solicitor lawyer from 1997, I provided legal advice to successive Governments, and from 2003, I provided legal advice on the publication of legal advice. Given my experience in the field, I would like to offer a few ideas that I hope will take us further towards an agreement. I hope the House is able to come to a consensus on this important point at this very important time, without pushing the matter to a vote, not least because we have moved a very long way during the debate from the terms of the motion.

The confidential nature of a lawyer’s advice to a client is very well established—I know you have practised in this field, Madam Deputy Speaker. Lawyers do not make decisions; they provide advice. Clients make decisions. The Attorney General is not a member of the Cabinet. He attends Cabinet, and in his very important position—I am not in any way trying to denigrate it—he provides legal advice. The Government can set out the legal position they have come to. The Attorney General can do no more than provide advice given his view. As hon. Members said, it is of course perfectly possible for every other lawyer, in the House and elsewhere, to provide an alternative view. Only the Government can set out their legal position.

Government lawyers, who I think I may be forgiven for saying are great people who do a marvellous job, sometimes against all the odds, have additional duties compared with other lawyers, as Keir Starmer said. They have a duty of candour. They are the guardians of the rule of law and the public interest. I am fully aware that they operate to the highest ethical standards. However, their advice is not of a different status from the advice of other lawyers. It is the same sort of advice, which is covered by legal professional privilege across the piece.

I could give examples of the way we provided legal advice on disclosure in the Iraq and Afghanistan litigation, although I am probably governed by the Official Secrets Act so I had better not make them too detailed. It is certainly true that, as Government lawyers, we went above and beyond—we took our duty of candour extremely seriously—but our advice in effect operated on the same plane and under the same system of confidentiality as that of other lawyers. The long-standing convention that we do not publish Government Legal Service advice or Attorney General’s advice is all part of that.

The separation of powers is at the absolute heart of our constitution. That is why we got so over-excited when a certain newspaper called judges “enemies of the people” last year. That was not acceptable. That is not the proper way for the law, the press and Parliament to operate. It is extremely important if we are to maintain our constitution, which we all profess to uphold so dearly, that we treat those different pillars extremely sensitively and keep them separate. Of course, the Government are often a party to litigation—the essence of my job was to defend them in the courts. The Government must not be hamstrung by having to provide their legal advice in public before litigation.

The Minister, who is no longer in his place, mentioned paragraph 2.13 of the ministerial code, which states:

“The fact that the Law Officers have advised or have not advised and the content of their advice must not be disclosed outside Government without their authority.”

I draw the House’s attention also to paragraph 2.11, which demonstrates that legal officers’ advice is special. Written legal officer opinions, unlike other ministerial papers, are of course made available to successive Administrations.

Photo of Bill Cash Bill Cash Chair, European Scrutiny Committee

Does my hon. Friend recall that that same ministerial code is clear that Law Officers’ advice is meant to be sought on all critical legal questions, but that was not done before the Chequers proposals, when the Cabinet did not have specific legal advice available to it? I raised that point with the Prime Minister in the Liaison Committee.

Photo of Victoria Prentis Victoria Prentis Conservative, Banbury

As a humble Back Bencher, I unfortunately have no idea what legal advice was made available to the Cabinet. It might assist the House to know that the ministerial code is clear—I cannot remember in which section, but in the same area—that if a Law Officer gives legal advice to the Cabinet, the whole of that advice must be provided as an attachment for the whole Cabinet to read. It is very important in these difficult times that we ensure that the ministerial code is complied with in full.

I pay tribute to the previous Labour Government and to previous Conservative Governments, who worked hard to improve the transparency of the process of government. Great advances have been made, for example in the field of freedom of information. It is relevant that legal officers’ advice is exempted from the Freedom of Information Act under section 42. It is also true that it is ultimately up to the client to decide whether or not legal advice should be published. I am concerned for future Governments, and for future Government legal advisers: I want them to be able to provide the fullest, frankest and most honest advice possible.

Photo of Victoria Prentis Victoria Prentis Conservative, Banbury

I would rather just finish, if I may.

I am very concerned about the wording of the motion, which is why I hope so much that we will be able to reach a consensus this afternoon. It is very broadly drafted. It refers to

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

Photo of Keir Starmer Keir Starmer Shadow Secretary of State for Exiting the European Union

Let me deal with that point. As with the impact assessments, if legal advice were provided in the way that I set out earlier, the question would arise of whether the order, or the Humble Address, had been complied with. In addressing that question, of course anyone judging whether it had been complied with would take into account what had been said at the Dispatch Box, in exactly the same way as happened with the impact assessments. When those were provided, the question arose of whether there had been compliance with what had been asked for, and that was answered by reference to what had been said at the Dispatch Boxes about what was really being asked for. What I have said is important, because it will be me standing here having to make the case that the order has not been complied with. I could hardly stand here and complain about the provision of exactly what I had asked for.

Photo of Victoria Prentis Victoria Prentis Conservative, Banbury

That is extremely helpful. I wonder whether the shadow Secretary of State will go one step further, and make clear that he would like to import into the motion the point that he made about the information being supplied just to Members of Parliament, rather than laid before Parliament generally.

Photo of Keir Starmer Keir Starmer Shadow Secretary of State for Exiting the European Union

I have put on the record—three times, I think—that that is what I want and that is what we are seeking, and I absolutely stand by that. Not only could I not properly make the argument if that were the arrangement; I would not do so.

Photo of Victoria Prentis Victoria Prentis Conservative, Banbury

I apologise for that slightly unusual exchange, Madam Deputy Speaker.

Photo of Angus MacNeil Angus MacNeil Chair, International Trade Committee

A few seconds ago, the hon. Lady was arguing that if the legal advice were to be published and more widely known, that would somehow compromise future advice. Is she suggesting that the skills and the general professionalism of legal people would be compromised in future—that they would compromise themselves, and would not give the fullest, frankest and most honest advice because of what might have happened in the past, and would then become different legal people?

Photo of Victoria Prentis Victoria Prentis Conservative, Banbury

That is absolutely what I am saying, and that is the basis of legal professional privilege. It is critical that lawyers are able to give a range of views to their clients about, for example, the chances of success in litigation, and the chances of success if various options are adopted. That is why legal professional privilege exists. It is absolutely critical for lawyers and their clients to be able to speak completely frankly to one another.

Let me end by echoing what was said by my right hon. and learned Friend Mr Grieve about the ring of confidence. It is important, in my view, that the Attorney General’s advice is sacrosanct and should remain within the Cabinet, because if the ring of confidentiality is broken, that is a very serious matter. It is important for collective government and sensible decision-making that we maintain these conventions, even in difficult times—perhaps especially in difficult times.

Several hon. Members:

rose—

Photo of Eleanor Laing Eleanor Laing Deputy Speaker (First Deputy Chairman of Ways and Means)

Order. We have limited time, so I will have to impose a limit on speeches of seven minutes. I call Tom Brake.

Photo of Tom Brake Tom Brake Liberal Democrat Spokesperson (International Trade), Liberal Democrat Spokesperson (Exiting the European Union) 2:54 pm, 13th November 2018

Thank you, Madam Deputy Speaker. I will keep within that limit.

Let me begin by thanking Keir Starmer for securing the debate, because this is an essential point that needed to be considered. I also wanted to put my thanks on record at the beginning because I may raise some matters in my short speech for which he may not thank me quite so much.

It is clearly important for us to get the legal advice published. A number of speeches today have made it clear that the scope set out in the motion might be much wider than was intended, and is therefore to be much more focused. That is welcome.

We are about to make what is potentially the single most important decision that we have made in 50 years, and I think that Members of Parliament are entitled to the greatest clarity on the issue, including legal clarity. At present, clarity is distinctly missing—and not just legal clarity but clarity for businesses, although that often means legal clarity. Let me give an example. A business in Bristol that I visited a couple of weeks ago is finding that its trade in the European Union is on a downward turn because the companies with which it works in the EU have no legal clarity on the position for rules of origin. They are saying, “Thank you. We have worked with you for 70 years and you are a fantastic business, but because we do not know how the rules of origin will apply to our products if we incorporate your components, we are simply going to take those components from somewhere else in the European Union.”

On that same visit, I met representatives of a language school. The legal clarity that they need relates to, for instance, whether children from the European Union with identity cards who currently go to Bristol to take language courses might be required to have passports in future. That would mean that children from Spain, France and Italy might instead go to European Union countries that do not require passports, such as Ireland, to learn English. Wherever we look, there are issues involving clarity.

I was pleased that the Minister confirmed that the Government would provide some economic analysis. He seemed to indicate that that would include analysis of what the Government’s deal would look like economically, compared with our staying in the European Union. I am absolutely confident that should the Government come forward with such economic analysis, it would confirm without a doubt that staying in the European Union would be better economically than any deal that the Prime Minister can produce. I think that not only Members of Parliament but everyone in the country is entitled to know that. If Parliament is pushing ahead with something that will be more economically damaging to us than staying in the European Union, people should know that, and they should be able to make decisions in the future about whom they will support when that is imposed on them.

Let me make a couple of points that the Opposition spokesman might wish to leave, including on the subject of legal clarity in respect of the Opposition’s position. I should be interested to know what legal advice they have received on whether Brexit is stoppable or unstoppable. The leader of the Labour party is on record as saying that it is unstoppable, but Keir Starmer has said today that it is stoppable. There might be some legal advice behind that, and I should be interested to know its source.

Labour has set six tests for Brexit. The second asks:

“Does it deliver the ‘exact same benefits’
as we currently have as members of the Single Market and Customs Union?”

The third asks:

“Does it ensure the fair management of migration in the interests of the economy and communities?”

I should be interested to know whether Labour Members have received any legal advice about the compatibility of those two tests. If they have, I suspect it is that the two are completely incompatible.

As for legal clarity from the Government, we need it not only in relation to legal advice concerning the withdrawal agreement. Along with Joanna Cherry—I do not know whether she will refer to this today—I seek clarity from the Government about the legal position in respect of the revocability of article 50. The Government have consistently failed to respond to that on the basis that it is a hypothetical question. I would say that for Members of Parliament, it is anything but a hypothetical question. For instance, if we get into a scenario in which we are going to crash out with no deal, the ability or otherwise to revoke article 50 is not a hypothetical question but, I would argue, a question of life or death in terms of what happens to the UK economy.

I welcome today’s debate on the specific point about providing legal advice to Members of Parliament without being selective regarding that provision, but there is a much wider issue about legal advice and the amount of information provided—whether on the economy or other aspects of Brexit—that we need to debate further. Members of Parliament need to be much better informed about these matters before we can possibly be in a position to take a sensible decision regarding whether to support any deal the Prime Minister comes forward with, or indeed to allow no deal to proceed, which is what the Prime Minister is threatening us with if we do not support her deal.

Photo of Alex Chalk Alex Chalk Conservative, Cheltenham 3:00 pm, 13th November 2018

Like many Members, I am grateful to the Opposition for raising this matter. They are absolutely right to do so, because this is not a dry legal point but something that goes to the heart of the operation of government and, indeed, our constitution. I am also grateful to them for the tone that they have adopted, recognising as they have the sanctity of the principle in ordinary circumstances. Keir Starmer has been careful to frame his argument by suggesting that these are exceptional circumstances, and it is to that point that I wish to direct my remarks.

At the risk of stating the obvious, the context for all this is Iraq, because there is no doubt that hon. Members do not want to fall into the same trap that I respectfully suggest the House fell into some years ago when it allowed itself to proceed with the invasion of Iraq without having in front of it the advice about to the lawfulness of the decision to go to war. I venture to suggest that it is now near established that such advice should be provided in those cases—those near-exceptional circumstances—but it is important to consider in the context of this debate what the question is not about. It is not about the lawfulness of the decision to leave. Were it about that, I would respectfully agree, or expect to agree, with the point the right hon. and learned Gentleman makes, because in such circumstances, the case would be strong. Instead, however, this is about the legal implications of the withdrawal agreement, which is a completely different animal. It will be about the legal implications of the extent to which trade agreements may be struck, the quantum of financial payments, the rate at which they are to be paid, the scope of citizens’ rights, and the role, if any, of the ECJ. That is an important distinction to make.

If one accepts that point, one has to fall back on the question of whether there remains any public interest in legal professional privilege, and I think it is agreed across this House that there is. Preserving the confidentiality of Law Officers’ advice and their ability to give that advice, and to do so fully and frankly, remains important. This is about not only giving advice fully and frankly, but ensuring that the substance of that advice remains confidential. That is the case for good public interest reasons, because Law Officers might give advice about the legal merits of other parties’ positions in the run-up to reaching a concluded agreement, and such matters might be sensitive—and disadvantageous to the national interest, if I may put it in those terms.

I entirely and genuinely thank the Opposition for raising this matter—it is a one that should be considered. While I have listened with great care to the points that have been made, having heard the clarification from the Government, I feel able to vote against the Opposition’s Humble Address motion.

Photo of Sammy Wilson Sammy Wilson Shadow DUP Spokesperson (Treasury), Shadow DUP Spokesperson (Work and Pensions), Shadow DUP Spokesperson (Brexit) 3:04 pm, 13th November 2018

First I must say that I am not addressing this issue as someone who is qualified in law, but I am addressing it as someone who represents a part of the United Kingdom that is most likely to be impacted by the agreement that is going to be made with the EU because of the insistence of putting Northern Ireland at the forefront in an attempt to tie the United Kingdom to the EU and its institutions for the long term.

Photo of Paul Girvan Paul Girvan Shadow DUP Spokesperson (Education), Liberal Democrat Lords Spokesperson (Transport), Shadow DUP Spokesperson (Transport)

Does my right hon. Friend agree that the people of Northern Ireland are looking, most importantly, for clarity in relation to our constitutional position? How might any backstop impact on our constitutional position within the United Kingdom? It is vitally important that we have clarity on that at this stage, and it would be good to know if that was included in any of the legal opinion the Government already have.

Photo of Sammy Wilson Sammy Wilson Shadow DUP Spokesperson (Treasury), Shadow DUP Spokesperson (Work and Pensions), Shadow DUP Spokesperson (Brexit)

I want to come on to that point.

I am sympathetic to the arguments the Government have put forward today: we cannot simply open the door and allow the legal advice given to Ministers to be published willy-nilly. However, to be fair to the Opposition spokesman, Keir Starmer, although the wording of the motion may be a bit broader, he has made clear the specific information he requires, and that information is not the legal advice that will currently be given to Ministers as they go into negotiations and thus compromise the negotiating position.

There is an irony here: no one has compromised the Government’s position more than the Government themselves in these negotiations. They willingly accepted the EU agenda and timetable and sequencing for the negotiations. They uncritically accepted the nonsense about a backstop for Northern Ireland—a problem that does not exist and which can be dealt with by the existing trade facilitation measures in place. And over the months we have had Ministers or Departments leaking economic reports that have been used against the Government in these negotiations. We should be careful about suggesting that somehow or other what is being requested today will undermine the Government’s position in the negotiations. What it will do is inform this House and the people who will be affected by the outcome of these negotiations of exactly how they will be affected. It is important that we have that information.

There are a number of reasons why I think this is an exceptional situation. As has been said, this is an important issue. It is important for the people of the United Kingdom as a whole, because there is the prospect of a UK-wide backstop, which would keep us in the customs union and tied to the common rulebook, or tied to the single market rules. It is also important for the people of Northern Ireland, as they would find themselves hived off from the rest of the United Kingdom and kept as some kind of vassal state or annexe by the EU—we would not even have the ability to decide what regulations applied to trade and the production of goods in our part of the United Kingdom.

Secondly, this will all be tied up in a legal agreement. Therefore, if there is any deviation from that, there will be reference back to the agreement made, so it is important that we understand what exactly has been legally signed up to, especially as the EU tends to nit-pick legally on all of these things. It is important that we know exactly what the issues are.

Thirdly, the Government have already been ambiguous about what the backstop might mean. We have been told that it is only an insurance policy and it will never be used, that it will be temporary and will apply only for a certain period of time, and that it will be replaced by a free trade arrangement. But what we need to know is, if it is going to be temporary, who will make the decision at the end of the day as to whether or not it is terminated? What will its scope be? Who will adjudicate on it—who will be the adjudicators of that agreement? And if it is only an insurance policy, in what circumstances will that insurance policy be applied? As has already been pointed out, as some Cabinet Ministers say that when this was presented to them in December of last year what it meant was unclear, and it was not even in a legal form at that stage, it is important that the legal implications of the agreement are spelled out for us.

The arguments that have been made today are clear. I share the concerns of Keir Starmer, in that I do not want to see a situation in which some Members have the legal position explained to them and others do not. We have not sought that. If we are going to make a decision on this most important issue, we should know the full implications and they should be spelled out to the public and to the people of Northern Ireland. The people of the United Kingdom should know whether the Government are binding them to an arrangement it would be impossible to get out of, collectively or just for the people of Northern Ireland. They need to know what the scope of that would be, and what the lawyers are saying about it.

For those reasons, we will be supporting the motion if it goes to a vote tonight. If the Government have decided that they will make the legal information available, that will be a step in the right direction. I suspect, given what we are hearing from Europe about the shape of the agreement, that that would expose just how damaging it would be to the United Kingdom.

Photo of Vicky Ford Vicky Ford Conservative, Chelmsford 3:11 pm, 13th November 2018

It is an honour to speak in this debate. It is also quite challenging, because we have heard from a number of people with deep legal experience, many of whom are hon. and learned Friends, and I am not a lawyer. However, I speak as someone who has a vast amount of negotiating experience. I spent eight years in the European Parliament leading international negotiations—in fact, I participated in more European negotiations than any other Member of that Parliament at that time—on top of 15 years of commercial negotiations, many of which were also international.

As a negotiator, I know how important it is to be able to seek legal advice as one goes along, not just on the final deal but on the deal as it develops. Because of that legal advice, we sometimes change our strategy, and the nuances can have an impact on the final deal. As a negotiator, I know that it is important to be able to play our cards close to our chest. Sometimes, if we are forced to disclose our position too early, it can tie us down and remove negotiating options.

It is therefore extremely important that we do not force those on our side of the negotiating table to disclose issues that those on the other side are not having to disclose. These are the most complex negotiations for a generation, and I personally think it is deeply impressive that all parties are still talking to one another, given how complicated the negotiations are. We should not force one side to disclose what the other side does not have to disclose.

The second reason that I am concerned about the motion is that I have spoken to lawyers about the precedent that this could set in other situations. Many Members of Parliament are lawyers, and we know that people go to lawyers for advice on all sorts of things—family law, property law—and that they do that in confidence. It is really important that that confidence should not be broken. We should not force a lawyer to breach that confidence, because that would set an incredibly difficult precedent for other areas.

Photo of Joanna Cherry Joanna Cherry Shadow SNP Spokesperson (Justice and Home Affairs), Shadow SNP Spokesperson (Justice), Shadow SNP Spokesperson (Home Affairs)

Is the hon. Lady aware that the privilege attaches to the client and not to the lawyer? It is for the client to decide whether to waive the privilege. We are not asking the lawyer to waive the privilege; we are asking the Government—the client—to do so. That is a crucial distinction.

Photo of Vicky Ford Vicky Ford Conservative, Chelmsford

Let me take this further, and move on to the issue of transparency. I believe that transparency is enormously important, and it is important that all Members should understand the full legal ramifications of the deal that is negotiated before we hold our vote. After all, the relationship between the EU and the UK is vital to all of us, and there are highly sensitive areas involved, especially for Northern Ireland, a place that is dear to my heart. That is why it has been extremely helpful that the Government have today clarified that, before we vote, there will be a full and reasoned position on the legal situation and especially on the impact for the Good Friday agreement and the commitments to Northern Ireland. That is absolutely right. Furthermore, I am pretty convinced that before we get a vote, every other QC in the country will have emailed each of our inboxes, and that the noble Law Lords down in the other place will have given their most eminent thoughts throughout the night, which we will be able to read in Hansard. I have no doubt that we will have a vast amount of legal opinion at our fingertips.

Although I support the call for transparency, the final reason that I will not vote for the motion today is that it is incredibly uncertain and unclear. In my experience of international negotiations, and indeed all negotiations, the devil is in the detail. British negotiators have a strong reputation for getting the detail right. I thank Keir Starmer for clarifying some of the issues in the motion during his speech, but there are at least four uncertain areas in it. First, is the motion calling only for the final legal advice, or for “any legal advice”, as it states? Secondly, is it calling for the advice on the final withdrawal agreement, as some people have suggested, or for the advice on the “proposed withdrawal agreement”, which is what it says in the motion? If it is the latter, that would include all the advice given during the negotiations. That is what the motion is asking for, and it is important that we should keep our reputation for detail strong.

The third failure in the motion is that it is unclear whether it is calling for all the papers to “laid before Parliament”, which is what it says, or for them to be made available to MPs, which is what I have heard the Opposition say they would now accept. That would be similar to the process by which we were able to access the impact assessments.

The fourth problem I have with the motion is that it is not clear when the advice would need to be made public. Would it be during the negotiations, or now, or after the negotiations have been finalised? I believe that the Opposition spokesman tried to clarify those points from the Dispatch Box, but that is not good enough. This is a serious vote on a serious issue relating to the most crucial negotiations of our lifetime, and this type of motion is simply not good enough.

Photo of Owen Smith Owen Smith Labour, Pontypridd 3:17 pm, 13th November 2018

Many Members contributing to the debate today have commented on its comradely and constructive tone, and I do likewise. In opening the debate, the Minister made his usual elegant and courteous attempts to assuage fears and reassure the House about the Government’s intention to be clear about the legal and political basis on which we will proceed towards the Brexit decision in this place. To some extent, however, the tone of the debate has belied the gravity of the issues that we are debating. In my view, he did not do enough to assuage the concern that the Labour Front-Bench team and Labour Members rightly have. I therefore hope that our Front Benchers will push the motion to a vote. I believe that it would be a cowardly act by the Government if they were to sit on their hands and abstain. That would be an abdication of their responsibility to stand by what they have said in this debate about the sanctity of the principle of impartial, confidentially provided legal advice. I think it would be hard for them to reconcile that with abstaining.

There is a big difference between the Minister’s promise to offer the Government’s full legal and political position on their view of the deal and the provision that my right hon. and learned Friend Keir Starmer has asked for, which is the full and final legal advice given to the Government prior to making that determination on the deal. The gap between those two things is so significant that a skilful rider such as the Solicitor General could ride a coach and horses through it. We have all seen legal advice that has been redacted, provided with omissions, or subject to the Government’s blue pencil, and that is what I fear we will see this time around. This is about a hugely important political decision that the Government are trying to sell to both sides of the House and to the country, so the Government will therefore seek to put the best possible gloss and light on what comes back from the negotiations in Brussels. However, if the decision is to be in keeping with what many people feel that Brexit was about—taking back control for this country and strengthening the sovereignty of this place—it would be inexplicable to many that parliamentarians are not being provided with the full, unredacted, unexpurgated legal basis on which the decisions are being taken.

I do not want to repeat all the points that my right hon. and learned Friend the Member for Holborn and St Pancras made from the Front Bench, but I will row in behind him in saying that the fundamental argument for publication is based on accepting that legal advice is ordinarily and conventionally provided to the Government in confidence. Indeed, I accepted that when I was an adviser to the last Labour Government, working alongside Mr Lidington on the peace process in Northern Ireland. However, we are not living through a normal set of circumstances. This is a set of circumstances in which the right hon. Gentleman, the Deputy Prime Minister, could appear on the “Today” programme this morning and refuse to refute the charge that the decision that he and other Ministers are taking will make our country poorer. It is an extraordinary set of circumstances that we have a Government who are knowingly pursuing a policy that, according to their own analysis, will make our people and our country poorer.

It is also absolutely extraordinary that we are jeopardising the Good Friday agreement and the peace process that it secured. Sammy Wilson was absolutely right to state that the people of Northern Ireland deserve to know, and must know, the exact basis on which this decision is being taken and what the legal ramifications might be down the track. Nothing less than the constitutional integrity of the United Kingdom is in question here. As many Members have said, it is not a question of the lawfulness of the decision that the Government are taking, as was the case with Iraq, but it is a question of the constitutional make-up and integrity of the United Kingdom. This seems to me, and I suspect to many in this country, an extremely serious and extraordinary proposition—not a normal policy outcome, but one that all of us ought to view as extraordinary, and therefore one around which we must have maximum transparency.

My final point, which my right hon. and learned Friend the Member for Holborn and St Pancras did not make, is about the context in which this decision is being taken. Brexit was born amid a swirl of lies and half-truths, and one of the consequences of the Brexit decision and of the way the campaign was prosecuted—arguably on both sides, but in particular on the leave side—has been a debasing of our democracy and a fundamental erosion of faith in our politics and our democracy. The end point or final decision has the capacity either to compound those problems or to start to solve some of them and to heal some of the broken faith in our democracy. The Government will fundamentally undermine their ability to do that—to bring a decision to the country in good faith that people can believe in and coalesce around, and that can potentially heal some of the divisions in our country—if there are fundamental questions about the manner in which the information is provided. It must be clear to everybody in this place and outside.

If the Government truly want to build bridges between people in this country, there must be maximum transparency, and that includes taking the unusual, unprecedented step of legislating to allow the full legal advice to be published.

Photo of Robert Courts Robert Courts Conservative, Witney 3:24 pm, 13th November 2018

It is a great honour to say a few brief words in this debate, in which I have been preceded by so many hon. and learned Members with much greater experience than I. At the outset, I associate myself with the comments of my right hon. and learned Friend Mr Grieve, who is no longer in his place, about good governance. My objection to this motion is precisely that—the danger it would cause to good governance—and there is a much better way to provide the clarity that we all want.

I have the most enormous professional respect for the shadow Secretary of State, Keir Starmer, who was Director of Public Prosecutions when I was at the Bar. However, I say with the greatest respect to him that this motion is misconceived for several reasons, which I will briefly describe.

I am grateful to the right hon. and learned Gentleman for clarifying exactly what the Opposition are asking for, but it is unfortunate that the wording of the motion—

“any legal advice in full, including that provided by the Attorney General”— is now being slimmed down to “the advice provided by the Attorney General in the eventuality of a deal.” It is unfortunate that what is now being asked for is so different from what is on the Order Paper, but he has made his clarification, so I will not detain the House any further on that.

As the right hon. and learned Gentleman will be fully aware from his time at the Bar, as will any lawyer, the reason why I object to the suggestion that the Government ought to publish any legal advice that they are given is that any sound legal advice will by its nature consider the strengths and weaknesses of the client’s case, as well as the strengths and weaknesses of the opponent’s case. That is what any lawyer would do, and it is essential that any document is confidential, because to disclose it would be tantamount to showing the other side one’s view of the weaknesses of one’s case, which would be damaging in this context.

It is a shame that Hilary Benn has just left his place, because I respectfully disagree with his point that the Government’s suggestion of providing a position statement is essentially the same as providing the advice. It is not—the advice would consider both sides of the argument, whereas the position statement, which I entirely support, will lay out the Government’s case and the reasons for it so that that can be scrutinised. That is not the same as breaching the confidentiality that any lawyer would expect when advising their client.

There are good reasons why such advice ought not to be disclosed. I accept the exceptionality argument that legal advice has been and can be disclosed in exceptional circumstances, but it would set an unwelcome precedent in this case. It would constitute waiving privilege and, in ordering it, we may not realise exactly where it will end. Documents that are not already in the public domain may be referred to in advice and may therefore become disclosable, and the same may happen to advice from civil servants. That would be unfortunate and would set in train a precedent that could have unwelcome ramifications for future Governments. In the interests of good governance, we ought to resist that.

I would not wish to see our undoubted desire for openness, with which I wholeheartedly agree, do irreparable damage to the constitutional framework of our country. I would not want this Government, or any other Government, to find themselves unable to get unvarnished, honest advice because of the fear, or the suspicion, that it might soon become public.

My right hon. and learned Friend Jeremy Wright, when he was Attorney General, put it well, saying that

“Members on both sides will have the chance to understand what the legal basis for the Government’s proposals will be, but there is a distinction to be made between the Government’s legal basis for action and the precise advice that Law Officers give. For the reasons I have explained, I do not think it sensible in what is undoubtedly an open and transparent democracy to publish that advice.”—[Official Report, 26 November 2015;
Vol. 602, c. 1468.]

That puts the position succinctly, and I agree.

There is a better way of doing this, and I suggest that the motion fundamentally misses the point. However eminent a lawyer is, we all realise that there will be another equally eminent lawyer who disagrees. The old joke is that if there are two lawyers, there are three or four opinions. What we need to scrutinise is not the opinion of one Law Officer, however eminent, but the basis on which the Government make out their case—the legal text of the agreement, the case law and the legal practice around which they build their case. That is what we should be looking for, not the disclosure of one particular legal document.

I am grateful to the House for listening to me. The compromise suggested by the Government is a smoother, better way of achieving the openness that we all wish to see, and I am grateful to them for suggesting it. I commend the Government’s course of action to the House.

Photo of Joanna Cherry Joanna Cherry Shadow SNP Spokesperson (Justice and Home Affairs), Shadow SNP Spokesperson (Justice), Shadow SNP Spokesperson (Home Affairs) 3:30 pm, 13th November 2018

It is always a pleasure to follow Robert Courts, who speaks eloquently and courteously, as always, although I disagree with him on this occasion. I rise to support the Labour party’s motion. In doing so, I declare an interest. Like many who have spoken in this debate, I have previously acted as a Government lawyer. I was a standing junior counsel to the Scottish Executive—as they used to be known before my colleagues came to power and changed the name to the Scottish Government, and quite right, too—and have acted as Crown counsel and one of the Lord Advocate’s deputies.

I understand the particular concern that Government lawyers have, but I have also acted for members of the public. I know there is a balance to be struck and that the interests of the Government are not always synonymous with the public interest. In this particular case, I do not think the interests of the Government are synonymous with the public interest.

My hon. Friend Peter Grant has already referred to the difference between the ministerial code in the United Kingdom and the ministerial code in Scotland on the disclosure of legal advice. The UK Cabinet Office ministerial code says:

“The fact that the Law Officers have advised or have not advised and the content of their advice must not be disclosed outside Government without their authority.”

That is an important qualification, and I will come back to what “Erskine May” says in a second.

By contrast, the ministerial code in Scotland has a section about exceptions to the convention of not disclosing legal advice:

“If, in exceptional circumstances, Ministers feel that the balance of public interest lies in disclosing either the source or the contents of legal advice on a particular matter, the Law Officers must be consulted and their prior consent obtained. Such consent will only be granted where there are compelling reasons for disclosure in the particular circumstances.”

The ministerial code in Scotland envisages that there can be disclosure in exceptional circumstances. Having regard to what “Erskine May” says, and having regard to some of the precedents we have discussed today, I would suggest that that, in effect, is what is recognised by this House. “Erskine May” says that

“the opinions of the law officers of the Crown, being confidential, are not usually laid before Parliament, cited in debate or provided in evidence…and their production has frequently been refused;
but if a Minister deems it expedient that such opinions should be made known for the information of the House, the Speaker has ruled that the orders of the House are in no way involved in the proceeding.”

“Erskine May” recognises that the UK Government can make the sort of exception that the Scottish Government are entitled to make in exceptional circumstances, and some historical precedents have already been mentioned today.

What I am saying is that these are exceptional circumstances. Again, as my hon. Friend the Member for Glenrothes said, another parliamentary convention has already been ridden over roughshod in relation to Brexit. The Sewel convention states that normally the Scottish Government should be consulted. The Government have said this is not a normal situation, and they may well be right. Of course, there is great legal debate about what “normally” means in the Sewel convention but, by the Government’s position, we are not in normal times. No, we are in exceptional times. Even if there were no precedent—and there are precedents—it would be appropriate for the Government to publish their legal advice on the finalised deal, if there is one, in full.

In this event, very unusually, I find myself in agreement with DUP Members. The people of Northern Ireland have a right to know this advice in full, as do the people of Scotland, England and Wales. It is this House that will make the decision on whether or not to accept that final agreement, not the Government. They are in danger of mixing up the functions of the Executive and the legislature in relation to Brexit.

Reference has been made to the case in which I am a petitioner, and which is going to the European Court of Justice, on the question of the unilateral revocability of article 50. The Government have fought that case tooth and nail, because they say it is up to them whether or not to revoke article 50, but the highest court, Scotland’s supreme court, has said, “No, it is up to this Parliament.” Just as it will be up to this Parliament whether to revoke article 50, it is up to this Parliament whether or not to accept the deal, so this Parliament should be given the advice that the Cabinet has been given. That is why I cannot agree to the compromise put forward by the Government Front Bencher, because it is a matter of trust now. As has been said by Owen Smith, the referendum in 2016 was won on the back of what we now know to have been some lies, some misinformation and, in some cases, breaches of electoral law. Unlike in the Scottish independence referendum, there was no prospectus as to what Brexit would look like. People have lost trust in the process. If trust is to be won back, this Parliament and indeed the people must be fully informed about the deal that is reached before the final decision is made to endorse the deal.

Legal privilege can be waived by the client, and that is what we are asking the Government to do. In the public interest, in these exceptional circumstances, we are asking them to waive that privilege. I am conscious that I have less than a minute left, but on the compromise offered from the Government Front Bench, I have three specific questions I would like the Solicitor General to answer. First, will what the Government are offering be made available to the devolved Governments? Secondly, how much detail will be in the legal advice that they are going to put forward—will it be sufficient for those of us who are going to be looking at it carefully to take an alternative opinion on it? Thirdly, if the Attorney General is going to come to this House to answer questions on it, will he give answers that are meaningful? Ministers so often do not give us a meaningful answer. In addition, will the Government allow a reasonable amount of time to elapse between the provision of their written document and the oral statement, so that the written document can be studied in order that properly informed questions may be asked?

Photo of Nick Thomas-Symonds Nick Thomas-Symonds Shadow Solicitor General, Shadow Minister (Home Office) (Security) 3:37 pm, 13th November 2018

Throughout this well informed debate, we have rightly heard a great deal about the important principle of the confidentiality of legal advice and lawyer-client privilege. However, it also needs to be said that the Government are no ordinary client and the position of the Attorney General, a political appointment, means he is no ordinary lawyer. Let us be clear about the Law Officers convention on not disclosing legal advice and what it actually consists of.

Reference has been made to the Cabinet Office ministerial code, which states:

“The fact that the Law Officers have advised or have not advised and the content of their advice must not be disclosed outside Government without their authority.”

The 24th edition of “Erskine May”, which has been cited by my right hon. Friend Hilary Benn and other Members, states:

“The purpose of this convention is to enable the government to obtain full and frank legal advice in confidence. Therefore, the opinions of the law officers of the crown, being confidential, are not usually laid before Parliament”.

Then, “Erskine May” specifically refers to the situation where

“a minister deems it expedient that such opinions should be made known for the information of the House”.

Put simply, we on this side of the House wholly respect the Law Officers convention, but it is not the case that the convention means the Government shall not disclose legal advice whatever the circumstances; the convention is not an absolute ban on releasing legal advice given. The Government should not hide behind the convention, because there is clear discretion for them to decide whether or not this is a situation when the advice should be laid before Parliament. It is for the Government to tell us why they want to keep MPs, including their own, in the dark about the full content of the legal advice on the withdrawal agreement and why this situation is not exceptional.

I listened carefully to the concessions made by the Minister for the Cabinet Office in his speech, but my hon. Friend Owen Smith is entirely right to say that they simply do not go far enough. First, we are told that a statement will be published. As many Government Members said, that statement is different from the legal advice. The safeguard that we have been offered—that the thrust of the two documents will be the same and that all nuances and all other things will be included—is, apparently, the resignation of the Attorney General in circumstances in which they were not the same. The Attorney General was not even present to give that assurance; the person who gave it was actually Mr Grieve, in his thoughtful speech. That is the only safeguard on that that the House has been offered.

Secondly, we are told that the Attorney General will give an oral statement to the House and be questioned by Members, but that actually means that the Attorney General will have seen a document on which Members of Parliament are expected then to interrogate and forensically question him without seeing the same document themselves. That is exactly what the situation would be. The concessions do not go far enough.

There is no point in saying that the publication of the advice will somehow prejudice ongoing negotiations, because by the time it is published, in time for it to be considered before the House votes, the negotiations on the backstop will be completed—if, of course, the Prime Minister has reached a deal. As my right hon. and learned Friend Keir Starmer made clear, we are asking not for a blow-by-blow account, every step of the way, but for a specific piece of legal advice on something of profound importance. That is what is crucial.

Our constituents’ jobs, businesses, livelihoods and living standards all depend on the outcome of the negotiations. The issue is one of fundamental importance for this House and its consideration of a matter that is so vital for the future of our country. As my hon. Friend the Member for Pontypridd put it, the whole constitutional integrity of the United Kingdom is at stake. It is difficult to think of a more compelling case for exceptionality and for the disclosure of legal advice. The idea that disclosing it in these most exceptional of circumstances would somehow damage the Law Officers convention has no credibility at all. Indeed, in these circumstances it is right that all right hon. and hon. Members can see the whole picture—that the Government provide the fullest possible transparency. It is an issue that goes across party lines and that is of great importance to this House and its ability to take decisions on the very best evidence available at the time.

The legal basis for the Northern Ireland backstop—if there is one to be agreed—what it means now, and the implications for what it could mean in future, are central to our considerations. It should be scrutinised and interrogated, and the Government have no good reason to prevent the legal advice from being made available to right hon. and hon. Members so that that can take place. Nor should this House ever be content with edited highlights. We need to see the full consideration of the different arguments provided by the Attorney General. The House should be able to consider every sentence and every nuance.

If a deal is reached, the House deserves to see a properly detailed political declaration, to see a full economic impact assessment that applies both nationally and regionally and covers all parts of the United Kingdom, and to have full time to debate. The legal advice is crucial in informing that debate. This debate has wide implications for our politics and affects the lives of all our constituents. It is about accountability and the Government’s willingness to subject themselves to scrutiny on the most vital of issues. I urge the Government to listen, to respect transparency and openness, and to respect Parliament on an issue of such magnitude. The Government have promised the House a meaningful vote. Such a vote requires Members of Parliament to analyse forensically any deal so that they can fully understand the implications of the Government’s position. The Opposition say publish the full advice, so that Parliament can make an informed decision for the future of this country, to secure our economy, our jobs and our future.

Photo of Robert Buckland Robert Buckland The Solicitor-General 3:44 pm, 13th November 2018

It is more than a pleasure—it is a privilege—to speak at the end of this well-informed, wide-ranging and important debate. May I pay tribute to my right hon. Friend the Chancellor of the Duchy of Lancaster for, in the right spirit, reaching across and making a proper and considered offer with regard to the Government’s position? His contribution reflected very much the careful and deliberate argument of Keir Starmer, who rightly, and perhaps almost inevitably—he will forgive me for saying that—moved away from the wide-ranging terms of the motion and very clearly set out his and his party’s position with regard to the subject matter that he and other Opposition Members wish to deal with.

Nick Thomas-Symonds rightly explained the context of the debate. This is an extraordinary time in our nation’s history, with grave decisions to be made by this place that will affect the lives of all of us. I readily accept all that, but I do hope that hon. and right hon. Members will forgive me if, as Law Officers have done in times gone by, and I hope will do so in the future, I dwell a little on the particularly important and unusual role that is filled by both the Attorney General and me within this wonderful unwritten constitution that we all have and celebrate. I will not repeat the proper references made by the hon. Gentleman and others to “Erskine May”, the ministerial code and indeed the Cabinet Office code—they all stand on the record and do not bear repetition.

It comes to this: the quality of collective decision making in government is dealt a fatal blow when, bit by bit, that decision making is subdivided, unpicked and, frankly, made almost impossible even in circumstances as important and exceptional as this. The argument that we are now having boils down to whether Labour Members and others in this House can accept the Government’s clear statement that we wish to provide a comprehensive position statement that deals with not just the economic and political consequences of any withdrawal agreement and future relationship, but the legal consequences of that decision.

We have inevitably and properly focused on the question of Northern Ireland, which Sammy Wilson quite properly raised, together with Lady Hermon, who is no longer in the Chamber. We accept all that, but say that, consistent with previous incidences when the Government’s legal position has been set out in a way that has helped debate in this House, that would be the appropriate course of action here, rather than publishing Law Officers’ advice.

Much has been made about the previous occasion when that was done in relation to the Iraq war—in fact it was the only occasion when the full text of Law Officers’ advice has ever been disclosed. It was two years after the event in particular circumstances when, as has already been referred to, the question of the lawfulness of an action by the Government lay at the heart of the debate. We are in a different position now.

Right hon. and hon. Members know that it would be wrong if I were to try to speculate about the content of any advice on this issue that may or may not have been given by Law Officers. I have to remain true to the convention that we have referred to, but doing the best that I can, it would seem to me that using the Iraq precedent, bearing in mind the particular context and the particular circumstances, is not a helpful guide for where we are today.

Instead, I have looked back to the time of a previous Solicitor General, the late Lord Howe of AberavonSir Geoffrey Howe as he was then—who is sadly no longer with us. He was the Solicitor General who took through the accession of this country to the treaties and the European Communities Act 1972. Although he spoke a lot about the legal basis and effects of entry to the then European Economic Community and the other communities, there was no suggestion at that time that any advice that he may or may not have given should be published. That is probably the best parallel that we can draw between the important events of 2018 and the very important events of 1972. If the House can accept that parallel, perhaps it can go on to accept the Government’s position.

The right hon. and learned Member for Holborn and St Pancras sought to make four key points. First, he spoke about the unprecedented context of the negotiations—I agree with that point—and, secondly, he referred to the nature of the advice as general, rather than something specific with regard to an action. Thirdly, he talked about the operation of the convention with regard to Law Officers’ advice and its position regarding privilege. His fourth point was that the advice or parts of it could not be shown to some but not others. These are all fairly reasonable and clear points.

I have already mentioned why I say that although these circumstances are exceptional, there is no reason at all for Law Officers’ advice to be published in the way in which the right hon. and learned Gentleman seeks. However, I want to deal with the point that he makes about—I hope he will forgive me if I use this phrase—a carve-out from the convention on the basis that the Government’s approach should allow for the disclosure of advice when that advice is in general terms. I would resist any suggestion that we should look at the disclosure of Law Officers’ legal advice on anything other than a strict case-by-case basis. In other words, the particular facts of each disclosure will very much depend on whether Law Officers’ advice should be published.

I agreed to some extent with the right hon. and learned Gentleman’s point about legal professional privilege, although I would say that the context of litigation is really the source of any disclosure, rather than a particularly special status whereby Law Officers’ advice is in a different category of legal professional privilege. If anything, there is a particular premium on the care that Government Departments take about the disclosure of Law Officers’ advice for all the consent reasons mentioned by Joanna Cherry. With respect to the right hon. and learned Member for Holborn and St Pancras, one must look at the context. It is the litigation context that would allow disclosure, as opposed to anything intrinsically to do with the status of Law Officers’ advice.

I have dealt with the past as best I may, but I want to reiterate—I hope for the benefit of the House—why the Law Officers’ convention still remains important. It is important not just when it comes to legal professional privilege, but because it protects the public interest in reflecting collective Cabinet responsibility. That is a vital constitutional principle. Why? Because it would be wrong and damaging to start distinguishing the specifically legal components of collective decision making. This places the rule of law at the centre of Government decision-making processes and at the centre of the minds of all Ministers, not just the Law Officers, and it does not permit a delegation of those important responsibilities by Ministers to me and to the Attorney General.

As one of my illustrious predecessor Law Officers and fellow “sosbanite”, the late Sir Elwyn Jones, wrote:

“the Minister who is advised by the law officers that he cannot do something…is not allowed to say, ‘I cannot do it because the Attorney-General tells me that I cannot.’”

I could not have put it better myself. We are talking about the indivisibility of Government decision making, and I am sure that the House will agree that it is a pretty fundamental point.

It is the role of the Law Officers to guard this principle, however tempting—however convenient—it might be to publish legal advice. We are the stewards; we are here to jealously guard the gate. A decision to disclose Law Officers’ advice requires a very powerful countervailing public interest to override that position. The authority of the Law Officers to disclose the fact that they have or have not advised, and then the actual content of that advice, is rarely sought and rarely given. Contrary to what some people have suggested about the right of the client—in this case, the Government—the content of the advice must not be disclosed outside the Government without the authority of the Law Officers.

In the few short minutes I have left, as I am mindful of the need to move on to other important debates—the Opposition Chief Whip is in his place—I think it would be right for me to refer very briefly to some of the important contributions made by hon. Members. My right hon. and learned Friend Mr Grieve, the former Attorney General, spoke fundamentally about the need to speak truth to power—if Law Officers cannot do that, where are we? I entirely agree with him.

Hilary Benn made a really important point about the difference between legal advice and the legal position of the Government. I think he accepted the point that my right hon. and learned Friend the Member for Beaconsfield made in an intervention. I do not wish to repeat that, but I simply reiterate the point for, I hope, the benefit of him and everybody in the Chamber.

I pay particular tribute to my hon. Friend Victoria Prentis, who spoke with authority as a former Government lawyer. She rightly reminded us in detail about the litigation position of the Government and the realities of disclosure, and the particular status of the Law Officers’ advice with regard to the deliberations of Government lawyers. Many other eminent lawyers spoke today—and many eminent non-lawyers as well, Mr Speaker, as I know that you regard the non-lawyer with particular affection, so I do not want to miss them out.

Today’s debate has been about not just dusty conventions, but pretty important constitutional positions. We know that the right hon. and learned Member for Holborn and St Pancras fully understands that. Admirable advocate though he is, I could not help but detect perhaps a little sense of sheepishness in his approach to the conventions. I readily forgive that, and I know that it will make him pause for thought in the days ahead. I hope that it can lead him and his colleagues to accept the clear view, and the clear offer, set out by my right hon. Friend the Minister. I readily adopt and repeat that offer. I hope that it will allow the right hon. Gentleman to draw back and, in the spirit of consensus and constructive dialogue, to accept the Government’s position and not press his motion to a vote today.

Question put and agreed to.

Resolved,

That an humble Address be presented to Her Majesty, that she will be graciously pleased to give directions that the following papers be laid before Parliament: any legal advice in full, including that provided by the Attorney General, on the proposed withdrawal agreement on the terms of the UK’s departure from the European Union including the Northern Ireland backstop and framework for a future relationship between the UK and the European Union.

Photo of Keir Starmer Keir Starmer Shadow Secretary of State for Exiting the European Union

On a point of order, Mr Speaker. I seek your guidance and clarity on the fact that the decision of the House that has just been made is clear, and that the Government must therefore respond but, in fairness, respond in the terms that I set out from the Dispatch Box. If I may repeat them for the record, the motion requires the publication of the final and full advice provided by the Attorney General to the Cabinet concerning the terms of any withdrawal agreement. This must be made available to all MPs. It is to be published after any withdrawal agreement is reached with the EU, but in good time to allow proper consideration before MPs are asked to vote on the deal. I put it in those terms because it reflects what I said from the Dispatch Box in the debate.

Photo of John Bercow John Bercow Speaker of the House of Commons, Chair, Speaker's Committee on the Electoral Commission, Chair, Speaker's Committee for the Independent Parliamentary Standards Authority, Chair, Commons Reference Group on Representation and Inclusion Committee

The House has resolved this matter, in that the motion has been put to it and approved without dissent or objection by it. The right hon. and learned Gentleman is absolutely entitled—both in the course of his speech, as he did, and now via the ruse of a point of order—further and better to explain what he seeks, and there is nothing wrong, exceptionable or disorderly about that.

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. It is then for the Government to respond, and we await that response, which it is to be expected will be swift. I hope that that is helpful to colleagues.

Photo of Bob Neill Bob Neill Chair, Justice Committee

Further to that point of order, Mr Speaker.

Photo of Bob Neill Bob Neill Chair, Justice Committee

I am grateful for your ruling, Mr Speaker. Will you also confirm that nothing in the resolution detracts from or undermines the obligation upon the Law Officers to consider the public interest when coming to a decision on the appropriate form of any disclosure that is made?

Photo of John Bercow John Bercow Speaker of the House of Commons, Chair, Speaker's Committee on the Electoral Commission, Chair, Speaker's Committee for the Independent Parliamentary Standards Authority, Chair, Commons Reference Group on Representation and Inclusion Committee

The resolution is as agreed, and I do not think any violence to the position of the Law Officers has been done.

In response to the Solicitor General, who concluded the debate with his characteristic courtesy and good humour, I feel sure that Victoria Prentis will treasure his tribute to her. It is to be expected that it will be framed, and I rather imagine that she will give it pride of place in her sitting room.

Photo of Angela Eagle Angela Eagle Labour, Wallasey

Further to that point of order, Mr Speaker. I speak as a non-lawyer. Can you confirm that although this is a Government who do not vote when they think they are going to lose, they nevertheless have a duty to honour the motion passed by the House, because it is not just an expression of the Opposition’s view but effective?

Photo of John Bercow John Bercow Speaker of the House of Commons, Chair, Speaker's Committee on the Electoral Commission, Chair, Speaker's Committee for the Independent Parliamentary Standards Authority, Chair, Commons Reference Group on Representation and Inclusion Committee

I hope the hon. Lady will understand if I say that I do not dissent, but I do not really think I have anything to add. I have already said that the motion is effective—it is not just an expression of opinion; it is an expression of will—and the Government should regard the motion as effective and respond to it swiftly. I hope that that is satisfactory to colleagues.