Privilege (Withdrawal Agreement: Legal Advice)

– in the House of Commons at 12:38 pm on 4th December 2018.

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Votes in this debate

  • Division number 272
    A majority of MPs voted not to refer to the Committee of Privileges the question of whether the Government’s response fulfils the motion passed on 13 November 2018
  • Division number 273
    A majority of MPs voted to find Ministers in contempt for their failure to publish the final and full legal advice concerning the EU Withdrawal Agreement, and order its immediate publication

Photo of Keir Starmer Keir Starmer Shadow Secretary of State for Exiting the European Union 12:50 pm, 4th December 2018

I beg to move,

That this House
finds Ministers in contempt for their failure to comply with the requirements of the motion for return passed on 13 November 2018, to publish the final and full legal advice provided by the Attorney General to the Cabinet concerning the EU Withdrawal Agreement and the framework for the future relationship, and orders its immediate publication.

I move this motion in my name and in the names of the relevant spokespeople for the Scottish National party, the Liberal Democrats, the Democratic Unionist party, Plaid Cymru and the Green party.

The issue before the House on this motion is very simple: have the Government complied with the order made by this House on 13 November this year to publish the final and full legal advice by the Attorney General to the Cabinet concerning the EU withdrawal agreement and the framework for the future relationship, yes or no? That order was binding. Mr Speaker, on 13 November I sought your advice on that issue and you ruled in the following terms:

“The ruling I give is simply that the motion is effective—I have been advised thus. It is not just an expression of the opinion of the House;
it is an expression of the will of the House that certain documents should be provided to it.”—[Official Report, 13 November 2018;
Vol. 649, c. 236.]

Yesterday, the Government published a reasoned position paper. That was not legal advice. It simply described the deal: it was a synopsis; it was in the nature of an explainer—an explainer having already been published when the deal was published. It was a long way from legal advice. The Attorney General made a statement to the House and then answered questions, but the Government did not publish the full and final advice by the Attorney General to the Cabinet. That is the long and short of it. The Government are wilfully refusing to comply with a binding order of this House, and that is contempt.

Yesterday, the Attorney General as good as admitted it when he said:

“I wish that I could comply with the request of this House but if I did, I sincerely believe that it would not be in all of our interests.”

And slightly later he said:

“although the House says that I should disclose, I believe that the public interest compels me not to. I am sorry.”—[Official Report, 3 December 2018;
Vol. 650, c. 534 and 564.]

That is a plea of mitigation; it is not a defence.

I make three points about the Government’s position. First, as Mr Rees-Mogg made clear yesterday, for the Attorney General to say that in his view it is not in the national interest is not good enough. The hon. Member for North East Somerset went on to say:

“When the Government lose a vote, they must follow the will of this House under an Humble Address, according to all precedent. It is no longer a matter for the Government to judge;
it has been decided by this House, which is a higher authority.”—[Official Report, 3 December 2018;
Vol. 650, c. 563.]

My second point is this: if the Attorney General feels so strongly about this matter that he is prepared now to put the Government in contempt of Parliament for refusing to comply with a binding order, why on earth did he not vote against the order in the first place, or anybody else on the Government Benches? That was not an oversight: the Government knew very well what was being asked for. The Attorney General must have known what was being debated and voted on. Yet it appears from answers given by the Attorney General yesterday that he was not asked before that vote for his view on the wisdom of not voting against the order, nor did he offer any advice, directly or indirectly.

Again I quote the Attorney General:

“I had no discussions with the Chief Whip on this subject. None was sought.”—[Official Report, 3 December 2018;
Vol. 650, c. 569.]

I do not doubt the Attorney General’s word for a minute, but really—before that vote nobody asked the Attorney General’s views on the consequence of not opposing the order?

The truth is that the decision not to oppose the order was a political decision, taken by the Government because they feared they would lose the vote. They did not want the short-term humiliation of losing a vote, and the price of that was higher than voting against the order—and none of them did that. That is not the first time that has happened.

Photo of Chris Philp Chris Philp Conservative, Croydon South

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 will in a moment.

For months the Government have ignored Opposition day motions, and now their tactic has got them into very deep water indeed. The Government cannot now come to this House and say, “We took a political decision not to oppose the making of the order to publish the full and final legal advice by the Attorney General and then we took a decision not to comply with that order, but somehow we are not in contempt of Parliament.”

My third point is about the Government’s amendment in the name of the Leader of the House asking this House to refer the matter of whether the Government’s response fulfils the motion to the Privileges Committee. The short point is this: there is nothing to refer. A binding order was made and the Government are refusing to comply with it. The reality is that, yet again, by their amendment the Government are simply playing for time in the hope that this ends up in the long grass until the crucial vote is long gone.

So this motion is extremely important. It has huge constitutional and political significance. Bringing the motion is not something I have done lightly. [Interruption.] On the contrary—[Interruption.] On the contrary—[Interruption.] On the contrary—[Interruption.] On the contrary—[Interruption.]

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. [Interruption.] Order. I do not need somebody yelling rather stupidly from a sedentary positionGive way.” The right hon. and learned Gentleman will give way if and when he wants to do so, and that is the end of the matter. And the same will apply when the Leader of the House is on her feet. Let me just make it clear: these are extremely serious matters and the public is entitled to expect that this debate will be conducted with courtesy. However long it takes—[Interruption.] However long it takes, that is what will happen.

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

I have not taken the decision lightly because I understand the constitutional and political significance of this motion. On the contrary, we have raised points of order on a number of occasions about this order, and we have asked urgent questions, and I have repeatedly urged the Government to reconsider their position both publicly and privately, making clear the consequence of not doing so. But the Government have chosen not to do so. I urge the Government now, even at this eleventh hour, to think again: to pull back from the brink of being found in contempt of Parliament.

Several hon. Members:

rose—

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

This motion is a last resort. The issue before us is simple: this House passed a binding order; the Government are wilfully refusing to comply with that order; that is contempt of Parliament.

Several hon. Members:

rose—

Photo of Andrea Leadsom Andrea Leadsom Lord President of the Council and Leader of the House of Commons 12:59 pm, 4th December 2018

I beg to move amendment (a), leave out from “House” to the end and insert:

“refers to the Committee of Privileges the question of whether the Government’s response fulfils the motion passed on 13 November 2018 and requests the Committee to consider the constitutional and historic context and the proper use, ambit and scope of the motion for return procedure.”

I want to start by thanking my right hon. and learned Friend the Attorney General for putting himself at the disposal of the House yesterday for over two hours, to provide information about the legal impact of the withdrawal agreement. He did so with his characteristic candour and integrity. The use of this motion has happened very rarely in the history of Parliament, and I do not think that any Member can be in any doubt that the information that the Attorney General provided yesterday was a very frank assessment of the legal position. The questions posed by Members on both sides of the House addressed the key issues we must all consider on the legal effects of the withdrawal agreement. My right hon. and learned Friend responded to all those questions in comprehensive fashion.

Alongside yesterday’s session of nearly two and a half hours, the Government have also provided a 48-page legal commentary that sets out the legal effect of each part of the withdrawal agreement. The information provided to the House is the detailed legal position on the withdrawal agreement and, as the Attorney General said to the House yesterday, he continues to be at the disposal of parliamentarians to answer further questions.

I would, therefore, in responding to the contempt motion before us today, urge the House to exercise caution in this matter. The issue at hand is not one of substantive content. As yesterday’s questioning illustrated, there is no real dispute as to the meaning and legal effect of the withdrawal agreement. The Attorney General could not have been clearer about the legal position yesterday. No hon. Member could say in all honesty that the Attorney General has done anything other than treat this House with the greatest respect. There can be no question that he, or the Government, has acted in a manner that is contemptuous of this House.

Photo of Toby Perkins Toby Perkins Labour, Chesterfield

The Leader of the House says that the Attorney General answered with candour. Indeed, he did, when he said that

“although the House says that I should disclose, I believe that the public interest compels me not to.”—[Official Report, 3 December 2018;
Vol. 650, c. 564.]

He made it clear that he was deliberately in contempt of Parliament.

Photo of Andrea Leadsom Andrea Leadsom Lord President of the Council and Leader of the House of Commons

The hon. Gentleman is not correct. As I have just set out, the Attorney General answered questions from all Members with the most possible frankness on the clear legal position.

Photo of Simon Hoare Simon Hoare Conservative, North Dorset

Does my right hon. Friend share my disquiet about some of the sincerity expressed by Keir Starmer? The letter that he produced in support of the motion was signed and sealed on Thursday. They clearly had no interest in what the Attorney General had to say on Monday.

Photo of Andrea Leadsom Andrea Leadsom Lord President of the Council and Leader of the House of Commons

I agree with my hon. Friend that the House needs to exercise some caution, and I wish to explain precisely why.

The issue we are debating today is the Government’s duty to protect Law Officers’ advice in the national interest. The House has previously recognised the importance of the principle that information cannot always be disclosed. This is always guided by the need to protect the broader public interest. This is directly reflected in the Freedom of Information Act 2000, brought in under a Labour Government, which sets out a careful scheme for balancing the twin imperatives of transparency on the one hand, and of safeguarding the public interest on the other. The consequences of not following those principles are obvious. The House might request, by way of a Humble Address, information that could compromise national security or which might put the lives of our troops in danger.

Photo of Kenneth Clarke Kenneth Clarke Father of the House of Commons

Obviously, parliamentary sovereignty and the duty of Government to obey motions is extremely important to the House, but my right hon. Friend is rightly describing the other problem of the confidentiality of legal advice, which Labour and Conservative Governments need as well. Is there not a sensible solution to this, as opposed to this current party political exchange? The Opposition could agree to receive a confidential briefing on Privy Council terms, look at the documents and have the Attorney General point out those parts that, in everybody’s view, might damage the national interest or damage the negotiating position of any Government of any party, and in effect agree to redact the documents. The politically embarrassing bits, which are what the Opposition are after, and all the rest of it can come out.

Both the conventions—that the House must be obeyed and that the Attorney General’s legal advice should be confidential—should be protected, and that is a possible way of reconciling them.

Photo of Andrea Leadsom Andrea Leadsom Lord President of the Council and Leader of the House of Commons

I am grateful for the advice of the Father of the House, but he will appreciate that Keir Starmer wants all legal advice to be put into the public domain without any attempt to protect the national interest.

Several hon. Members:

rose—

Photo of Andrea Leadsom Andrea Leadsom Lord President of the Council and Leader of the House of Commons

I will not give way for a while.

The consequences of not following the principles of transparency on the one hand and safeguarding public interest on the other are obvious. The House could request, by way of a Humble Address, information that could compromise national security. It would mean releasing information with no method for the House itself to review or assess the information in question, before its full release into the public domain. It would not be possible under the Humble Address procedure to weigh up any potential consequences of such a disclosure. It is simply an irresponsible thing to do.

Turning to the present case concerning Law Officers’ advice. As the House is aware, this is the subject of very long standing conventions which are enshrined in the ministerial code, and recognised in “Erskine May”. First, without the authorisation of the Law Officers, the fact that—or indeed whether—their advice has been provided to Government should not be disclosed. Secondly, such advice must not be provided to those outside of Government without the Law Officers’ express authorisation.

The purpose of the conventions is to provide the best possible guarantee that Government business is conducted in the light of full and frank legal advice. This is a fundamental principle of the rule of law. If Government knew that they might be forced to disclose the advice that they had received, it could seriously compromise the sorts of request for advice that would be made, and totally impede the ability of the Law Officers and Government lawyers to provide it. In turn, that would seriously compromise good government.

The motion we are debating today would undermine these vital conventions, and it would do so through the blunt instrument of the Humble Address, an arcane parliamentary procedure which, until very recently, was last used in this way in the 19th century. Moreover, there is real doubt about the ambit of the procedure: as I said earlier, it contains no mechanism by which information can be reviewed to ensure that its disclosure would not seriously harm the public interest. In considering today’s motion, hon. Members must reflect carefully on this—and on the potential consequences not just for this Government, but for all future Governments.

As this House knows, the Government have worked extremely hard to comply with Humble Addresses that have been passed previously. We have also sought to do so in response to the case we are debating today, while at the same time, taking steps to protect the national interest. The conventions that I have spoken about stand and endure because they respect the proper balance between the Government and Parliament—and the principle that Ministers should be as open with Parliament as it is possible to be, provided that disclosure of information does not compromise the wider public interest. We chip away at them at our peril; today’s motion is not in the interests of Members and it is definitely not in the national interest. What we break now may be very difficult to fix later.

Photo of Chris Philp Chris Philp Conservative, Croydon South

The Leader of the House has been commenting on the use of the Humble Address mechanism to compel the disclosure of information. We were told by the Attorney General yesterday that this information would be prejudicial to the national interest. Is it not impossible to debate openly in this House whether that information should be disclosed without knowing what the information is? Would it not be more appropriate to make the decision in a confidential tribunal about what may and may not be disclosed, analogous to a judge making such a decision when a matter of disclosure arises in a court of law?

Photo of Andrea Leadsom Andrea Leadsom Lord President of the Council and Leader of the House of Commons

Again, my hon. Friend points out the problem, which is that the right hon. and learned Member for Holborn and St Pancras’s motion seeks that all the information be placed in the public domain without anyone on either side of the House having the ability to consider whether it is in the national interest to do so.

I want to turn now to the contempt motion itself. We recognise that concerns have been raised as to whether the Government’s response meets the terms and spirit of the motion agreed on 13 November. We consider that the spirit and intent of that motion have been fully complied with. As I said earlier, the Government have now provided a 48-page paper setting out the legal effect of the withdrawal agreement, and the Attorney General came to the House yesterday. Anyone present in the Chamber for his statement and his subsequent responses to questions can be in absolutely no doubt that the Attorney General gave a full—[Interruption.]

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. The Leader of the House must resume her seat momentarily. Mr Russell-Moyle, you are a very excitable denizen of the House. If you were on your feet, you would be entitled to express your views. When you are in your seat, you are not. I hope that that basic rubric is now clear to you and will require no further explanation.

Photo of Andrea Leadsom Andrea Leadsom Lord President of the Council and Leader of the House of Commons

Thank you, Mr Speaker. Anyone present in the Chamber for the Attorney General’s statement and his subsequent responses to questions yesterday can be in absolutely no doubt that he gave a full and frank exposition of the legal position of the withdrawal agreement. I simply reject any suggestion that the Attorney General has done anything other than treat this House with the greatest respect.

Turning to process, the motion before the House today seeks to find the Government in contempt of Parliament, without having taken the important prior step of referring the matter to the Committee of Privileges, as is normally the case. This is a matter of due process. First, those facing this extremely serious charge of contempt should each be given the opportunity to make their case and to follow the due process of this House. They should be given the opportunity to explain how they have come to their decision about how best to balance the Government’s responsibilities to Parliament with their ministerial duties, including the need to consider the national interest. That opportunity is a vital element of any such procedure, and in this mother of all Parliaments, we are surely nothing if we do not uphold our own constitutional practices in the appropriate way.

The Privileges Committee will also want to consider the question of compliance with the motion in its full constitutional and historical context. The Government would strongly welcome the Committee having the opportunity to consider the more general scope of the motion for the Humble Address procedure, in particular as regards confidential information and the national interest. The Committee could consider these complex matters in a full and impartial way, away from the heat of the present debate and in fulfilment of its parliamentary duty as established by this House. I am grateful to the Chair of the Committee, Kate Green, for the conversation that she and I had today in which she agreed that her Committee would be happy to consider that.

The members of the Committee are accustomed to the consideration of complex and contested issues. That is the very essence of their role. Although it would be for the House itself to reach a final determination on whether a contempt had been committed, it should do so on the basis of the full and impartial consideration of the facts by the Committee of Privileges. I therefore appeal to all hon. Members right across the House that if they seek to pass this motion, they should refer it to the Committee in line with our parliamentary procedures. I urge all hon. Members to support the Government’s amendment.

Photo of Bill Cash Bill Cash Chair, European Scrutiny Committee 1:15 pm, 4th December 2018

I must say that I found the answers given by the Attorney General yesterday extremely difficult to understand in the terms in which they were expressed—that is, of relating to the national interest, because that is a question that is contained in the results of the referendum and the European Union (Withdrawal) Act 2018. Following reports that I have heard, I also find it most unsatisfactory that this issue is regarded as a parlour game, and that we have been told to stop messing around with the process and to grow up. I think that that somewhat underestimates the significance of what we are dealing with here, but I will leave it at that, because people in these circumstances sometimes use language that underestimates the importance of the matters that are being dealt with.

I would like to say to the Leader of the House and to the Law Officers that the question of conventions turns on the reason for the rule. In this context, the reason for the application of this particular convention, which includes the question of the ministerial code, clearly demonstrates that, unless we know what the Attorney General has actually given by way of a full disclosure, it is extremely difficult to know whether or not the public policy that has been pursued is consistent with the legal advice that he gave.

Ivor Jennings was one of the greatest constitutional authorities on these matters. He said that

“conventions are observed because of the political difficulties which arise if they are not.”

I suggest that nothing could better illustrate the current situation, and in particular the issues relating to the ministerial code. The ministerial code states:

“The Law Officers must be consulted in good time before the Government is committed to critical decisions involving legal considerations.”

The Chequers proposals lie at the heart of the beginnings of the issues with which we are considering the withdrawal agreement, and I have been informed that the Law Officers were not consulted before the Chequers proposals. This has had dire consequences. Indeed, I said to the Prime Minister on 9 July that I did not think she would be able to reconcile the Chequers proposals with the express repeal of the European Communities Act 1972 in the European Union (Withdrawal) Act 2018, which was passed on 26 June, 16 days before Royal Assent was given. We were then presented with the Chequers proposals. Everyone knew, when Royal Assent was given, that the express repeal of the 1972 Act had been enacted, yet it was clear, because it happened only a few days later, that an 80-page White Paper was being produced, the effect of which was to demonstrate that the 1972 Act was going to be considerably altered. I regarded that as a massive breach of trust, but it could have been resolved if we had had the full advice of the Attorney General at that time.

Under that same convention, and with respect to the present withdrawal agreement, it is essential for us to know now whether the present Attorney General gave advice on the issue of incompatibility between the express repeal of the 1972 Act in the European Union (Withdrawal) Act and the withdrawal agreement. There is no indication in the Attorney General’s introduction to his legal statement yesterday that he addressed that question as a matter of fundamental constitutional importance. Indeed, he states that the agreement needs a new Act of Parliament in domestic law, but as I pointed out in The Sunday Telegraph that is no more than a wing and a prayer.

I asked the Prime Minister about such matters during her statement last Monday and in the Liaison Committee, but I received no satisfactory answer. I also asked the Attorney General a similar question yesterday, requesting that he draw his attention to a Queen’s bench division that was cited as a precedent for the disclosure of the Attorney General’s advice. There are four other precedents, but Factortame is particularly significant due to the incompatibility between the 1972 Act and the withdrawal agreement.

If we do not have the full disclosure of the Attorney General’s opinion, that is relevant to the question of whether the actual withdrawal agreement itself is invalid under the Vienna convention, because a fundamental failure to comply with internal domestic constitutional law amounts to grounds for the invalidity of such a withdrawal agreement.

Photo of Bill Cash Bill Cash Chair, European Scrutiny Committee

Just one moment. If there is a danger that the withdrawal agreement could be invalid, that is a matter of fundamental importance on which I would have expected the Attorney General to include his opinion, but there is no evidence whatsoever that he referred to that in his opinion, and that is why we need full disclosure. I also understand that there are sheaves of papers within governmental circles unpacking the repeal of the 1972 Act with respect to the prospective withdrawal and implementation Bill, which is again a matter of extreme public importance. By any standards, all these matters fall not only within the ministerial code, but within what I would have hoped and expected the Attorney General to deal with in his opinion and the statement he gave yesterday, but there was nothing there to give me any comfort whatsoever.

To say that we should move on and get real and that what the Attorney General thinks is in the national interest actually is in the national interest does also bear on the question of whether the European Union (Withdrawal) Act is a matter of extreme public interest and fundamental importance. The failure to address that question in the introduction and in the legal statement seems to be a mistake of the first order and, furthermore, to be inconsistent with what I would have expected from the legal opinion of the Attorney General.

As to the role of the Attorney General, I simply refer to the authoritative work “The Attorney General, Politics and the Public Interest”, published in 1984 and written by Professor John Edwards. In his chapter dealing with ministerial consultations with the Law Officers, it is made clear that all legal advisers from all Departments will ultimately turn on the view of the Attorney General. Edwards states that there will be times when the Attorney General, perceiving the legal implications of a Department’s proposed course of action—in this case, No. 10 and the Department for Exiting the European Union—will find it necessary to oppose a Minister’s preferred policy. Such opposition must also derive from the legal implications of the proposed policy.

As Edwards says on page 190 of his authoritative work, for the Government to reject such advice would be quite exceptional and would reasonably lead to serious questioning by the Attorney General himself of his continuing to serve as the Government’s chief legal adviser. Without full public disclosure of his opinion, it will be impossible to get to the bottom of all the considerations that are at the heart of the issue of public trust to which the former Secretary of State for Exiting the European Union referred regarding the manifesto and the reasons for his resignation and the conduct of the Government, to which I have referred myself in terms of broken promises made in the House recently.

The reason why my European Scrutiny Committee is making a full inquiry into this situation is, in a nutshell, because we want to get to the bottom of the conduct and the processes and the outcome of these negotiations, and we will do so by taking evidence. I trust that the Government will take note of the seriousness of the suggestions and the arguments that I am putting forward, because they go to the heart of public trust, the referendum vote itself, the repeal of the 1972 Act, whether the Attorney General has fully addressed the consequences for the withdrawal agreement of the opinion that he has given, which we have a right to see, and whether it is really in the public interest for it not to be disclosed.

Photo of Peter Grant Peter Grant Shadow SNP Spokesperson (Europe), Shadow SNP Spokesperson (Exiting the European Union) 1:25 pm, 4th December 2018

I commend those hon. and right hon. Members who secured this debate and thank you, Mr Speaker, for allowing it. I also pay tribute to the stamina of my hon. Friend Stephen Gethins and of other colleagues who ensured that you had ample time last night to consider the response to the original application.

Later today, we begin five days of debate on possibly the most important peacetime decision that this Parliament will ever take. Also today, Ofsted has described the Government’s treatment of thousands of vulnerable schoolchildren in England as a “national scandal”, we have a major investigation into alleged profiteering by funeral companies, and we have had reports from the UN special rapporteur and the Joseph Rowntree Foundation highlighting the appalling poverty that exists here in one of the wealthiest economies on the planet. What does all that have to do with the motion before us now? The only reason why we are allowed to know and discuss those things openly and without fear is because the power of the state to prevent us from knowing about them is tempered by the rights of this democratically elected Parliament—not tempered nearly enough in my humble opinion. Elections to this Parliament are not democratic enough, but we do have an elected Parliament to hold back the excesses of the Government, and that is what today’s motion is all about.

We have a Parliament of 650 people, and each of us is entrusted to exercise sovereignty on behalf of those who have sent us here. A contempt of this Parliament is a contempt for the fundamental principle of the sovereignty of the people. A Government who seek to place themselves above the express will of Parliament are a Government in contempt of the people. They are a Government who have already taken a dangerous step down the road from democracy to dictatorship.

Today’s debate is not about the rights and wrongs of the original motion presented to the House on 13 November. Astonishingly enough, the time for debate on those questions was on 13 November. Let us not spend time today on questions of convention and precedence, of the confidentiality of legal advice or of when that confidentiality should be waived. The time for opposition to the terms of that motion was when that Question was put to the House, but the Government instructed their MPs to do nothing. They instructed their Members not to oppose the motion. I welcome the degree of humility that they have shown in admitting that they got that wrong, but that admission is not an excuse for the Government unilaterally to seek to change the wording of or meaning behind a binding decision of this Parliament. They have the audacity to come here yesterday and today and say that they, not Parliament, know what Parliament decided. They are placing themselves above Parliament. That is a contempt of Parliament.

As for the “legal position” document published yesterday that was going to fix it all, it could hardly have been more patronising if they had included pictures to colour in and wee join-the-dots puzzles every so often just to keep us interested. It was not a legal position by any accepted definition. It was possibly an attempted sop to some Conservative MPs, who are in a very difficult position—struggling between their understandable loyalty to their Government, to their party and to individual Ministers and their overriding loyalty to the people and to this Parliament.

As Keir Starmer said, the Government have made a habit of not turning up if they think they are going to lose. Maybe the problem is that they are so used to being allowed to ignore the views and opinions of Parliament that they forgot that sometimes Parliament takes decisions they are not allowed to ignore. Maybe that is why they are so upset now. Maybe it is because, alongside the issues of what should and should not be made available to Members of Parliament and to the public, this decision has laid bare the incompetence at the heart of a Government who do not even know the basics of parliamentary procedure.

Photo of David Davies David Davies Chair, Welsh Affairs Committee

Does the hon. Gentleman’s commitment to openness now mean that he will be asking the Scottish Law Officer to publish all her advice to the Scottish Parliament in future?

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

I have absolutely no doubt that, if the Parliament that represents the sovereign people of Scotland gave a binding direction to the elected Government of Scotland, the elected Government of Scotland would comply with that binding direction. No such binding direction has been given, so let us not try to deflect attention from the clear and blatant contempt that has been committed against this House with completely false accusations of contempt elsewhere.

We have a Government who are behaving like a football team who do not turn up for friendlies if they think they will be beaten and then discover that they have missed a cup final and have forfeited the tie with a notional 3-0 score. Not only are they asking to be allowed to replay the final, but they are complaining that the score is void because the three notional goals would all have been offside if they had been there to defend them.

We are not talking about a game of football with a trophy at stake, and we are not talking about the sanctity or non-sanctity of the confidentiality of legal advice; we are talking about the most fundamental principle that governs our nations, the principle that Parliament can tell the Government what to do, not the other way around. This is not just some temporary individual aberration; it is part of a pattern of Government attempts to keep Parliament out of this altogether. They want to restore sovereignty to Parliament by keeping Parliament out of its own sovereignty.

The Government went to the Supreme Court to stop us having any say on the triggering of article 50, and they lost. They did their damnedest to stop Parliament having any say on the withdrawal agreement, and they lost. They spent thousands of pounds of our money trying to prevent a group of Scottish parliamentarians from finding out whether article 50 can be unilaterally revoked, and they lost. The Court of Justice of the European Union will now almost certainly find that article 50 can be revoked.

I pay tribute to the parliamentarians from five political parties and three national Parliaments who took that case to the Court. What they have won will prove to be a pivotal victory, but it raises a question that is too important to be treated as rhetorical, and a question that is highly pertinent to the substance of today’s debate. What kind of Government go to court to prevent their own citizens from knowing that the Government have legal powers but have chosen not to use them? What legitimate reason can there be for a Government to want their people to believe something is legally impossible when the Government already have legal advice telling them it is perfectly possible?

This morning’s preliminary opinion from the CJEU is simply another example of this Government’s attitude that the path they have chosen unilaterally is the only one worthy of consideration and that nobody is even allowed to know that other paths might be possible. They have their priorities completely wrong. They repeatedly tell us, and the Leader of the House said it often enough in moving the amendment, that their ultimate duty is to act in the public interest, but in fact they are demanding that Parliament and the public act at all times in the Government’s interest—that is not the same thing at all. The Government, and not the Parliament that holds sovereignty on behalf of the public, have taken upon themselves the right to decide what is in the public interest. The Government declare themselves to know better than Parliament what is in the public interest. The Government place themselves above the decisions of Parliament, and they place themselves in contempt of Parliament.

Early next year we will see the 370th anniversary of the day when a crowned king of Scots was executed, just a few hundred yards up the road from here, for defying the will not of this Parliament—this Parliament did not exist then—but of one of its predecessors. I do not think anyone is suggesting a similar fate for those who are found in contempt of this Parliament, but we should be under no illusions about the gravity of what we are discussing, and we should be under no illusions as to how the mockery from the Conservative Benches is being perceived by those who believe this Parliament should be allowed to tell the Government what to do.

The elected Parliaments of our four nations, for all their faults, flaws, imperfections and ridiculously outdated, arcane procedures that the Leader of the House sometimes does not like, represent the rights of our citizens. No one, but no one, has the right to wield power over the people without the consent of the people. In a parliamentary democracy, that consent is expressed through Parliament, not through the office of the Prime Minister or any other office of state.

When Parliament speaks, it speaks on behalf of the people and the Government must listen. When Parliament instructs, it instructs on behalf of the people and the Government must comply. Parliament has spoken, and the Government must listen. Parliament has instructed. It has not asked, opined or suggested; it has instructed. The Government can disagree, moan or complain as much as they like, but they must comply with the instruction of Parliament.

Instead, the Government seek to defy the instruction of Parliament. They seek to defy the sovereignty of the people, as expressed through their elected representatives. It is now for Parliament to take the only course of action open to us to compel the Government to back down.

Photo of Nadine Dorries Nadine Dorries Conservative, Mid Bedfordshire 1:36 pm, 4th December 2018

I apologise at the start, because I will have to absent the Chamber quickly to chair the Finance (No. 3) Bill Committee.

I begin my short remarks by referring to the comments made on the radio this morning by Tom Brake. He conflated the Iraq war debate and the legal advice that was then issued with what is happening now, but the advice that was then issued, wrongly, by the previous Administration and that resulted in Members of this House going into the Lobbies misinformed and without the required information was about the legalities of the Iraq war, whereas this, as the Attorney General made clear yesterday, is a political decision, not a legal decision.

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

The comparison was about the risk of cherry-picking, and I do not think anyone would argue. On the Iraq war, the position set out by Lord Goldsmith cherry-picked the advice to maximise the Government’s position and to press their case.

Photo of Nadine Dorries Nadine Dorries Conservative, Mid Bedfordshire

I do believe that the two issues were conflated and that that was used to argue for revealing the legal information on the wrong predication.

I have been in a quandary about the vote today. I would like to see the full legal evidence, as I am sure everybody in the House would, but there are conventions and other people to consider, and civil servants fall into that category. They serve us all with true and absolute independence. I do not know how any Government would ever be in this place if we could not depend absolutely on the impartial legal advice we receive from civil servants. If this motion was passed today, what civil servant or legal adviser would ever want to advise any future Government without first putting in place a filter of self-preservation, by considering the advice they give? Who would want to do that as a civil servant? Although I would love to see this legal advice, we have a duty to consider others: the people who serve both the public and us. I have 100% respect for civil servants. They work amazingly hard; they are truly independent; and they serve us without any political bias, and that should absolutely be considered.

On the public interest and the points the Attorney General made yesterday, none of us, apart from him and a select few, knows whether there are any issues in that legal advice that pertain to intelligence, national security or any other of those issues. I have to assume only that when he spoke yesterday about public interest, he was talking in the much broader context. This is an important issue. As he said yesterday,

“There is no procedure by which this House can have redactions or entertain circumstances in which it could weigh the competing public interest against the interest in disclosure, as a judge would do.”—[Official Report, 3 December 2018;
Vol. 650, c. 557.]

Given what happened with the publication of the summary of the legal advice during the Iraq war, this inevitability that is happening today should have been foreseen then. We live in a changing world, one where people demand transparency and have a right to know all the full information. I believe that a resolution should have been passed in this House to give powers to this House—after all, Parliament is a court—and a process in this House whereby this House, probably through the authority of your office, Mr Speaker, via the Clerks and independent judicial advice, should be able to take a decision and redact matters of national intelligence and security from legal advice, so that people in this House can see legal advice. I hope that as a result of what has happened today, and given that demands to see legal advice will be made again in the future, the House will take cognisance of that and decide to pass a resolution that will ensure that we do not find ourselves in this position again.

As far as I am concerned, we have been told the worst; the Attorney General pulled no punches. He said:

“There is nothing to see here.”—[Official Report, 3 December 2018;
Vol. 650, c. 557.]

But he told us what needed to be seen, so let me again quote his words. He said:

“There is therefore no unilateral right for either party to terminate this arrangement. This means that if no superseding agreement can be reached within the implementation period, the protocol would be activated and in international law would subsist even if negotiations had broken down.”—[Official Report, 3 December 2018;
Vol. 650, c. 547.]

He told us the worst: we will be in the backstop in perpetuity. That was as bad as it gets. If we cannot withdraw from the backstop following the decision of this House, we are trapped, as somebody said from a sedentary position yesterday. I believe that no MP with any conscience, given what the Attorney General told us yesterday, could vote for the withdrawal agreement, because he pulled no punches—he told us the worst it can be. I commend him for that.

I want to finish, because I have to, with a comment about us. I listened to Keir Starmer when he said what he said at the Dispatch Box. One day, and I hope he is white in hair and long in tooth before he gets there, he may be the Attorney General, and his words may come back to haunt him at some time in the future. I have watched him many times and I could see that thought going through his mind. As a former legal adviser to one of most eminent law firms in the country, he knows full well, when stands at that Dispatch Box, what he is saying and what he is doing. I hope you never find yourself in the position that you have put our Attorney General in. I would like to finish—

Photo of Nadine Dorries Nadine Dorries Conservative, Mid Bedfordshire

I should know better, Mr Speaker, and I apologise. I would like to finish by saying that before we are Attorney Generals, Mr Speakers and Front-Bench spokesmen, we are all MPs—we are all elected Members. I believe that the Attorney General came to this Dispatch Box yesterday with honour and in good faith, and he was honest. If this motion is passed, the integrity, reputation and honour of a good man will be traduced. It would be a disgrace for this House to do that, because any one of us may one day be in that position. I hope that this motion does not pass today for that reason.

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 1:45 pm, 4th December 2018

It is a pleasure to follow Ms Dorries. I do not agree with the main thrust of what she said, but she did make some useful and pertinent comments about what the Attorney General said yesterday in terms of the analysis of where we find ourselves. I agree with her and with other right hon. and hon. Members who have praised the Attorney General, his candour, his honour and what he brought to the House yesterday in terms of more truthfulness about what this deal actually means. By contrast to others who have been prepared to say things to the press and media, he came here, as a member of the Cabinet, and told us some of the unvarnished truth about this agreement. So I praise him for that and join the hon. Lady in what she has said, as I went through the adjectives that he used in his devastating commentary yesterday. He said that this deal was “a calculated risk”; that it was “unattractive”, “unsatisfactory” and “undesirable”; that it provided “no unilateral” exit clause for the UK; and that it was indefinite, with

“no unilateral right…to terminate”. —[Official Report, 3 December 2018;
Vol. 650, c. 557.]

Yet he asked us to take it on trust that it would all never happen because, believe it or not, having spent 18 months negotiating all this, the EU and the Irish Government do not actually want to implement any of it.

The fact is that despite all the candour and all that was said yesterday, coming to this House to make an oral statement lasting two and a half hours and taking all the questions and providing the reasoned position paper does not actually fulfil the order given by the motion that was passed by this House, which was for the final and full advice provided by the Attorney General to the Cabinet to be published. The Government may not like the fact that that was passed by this House, but they cannot simply wish it otherwise.

During the debate on 13 November, they argued that they would do precisely what they have now done, and that was rejected by the House—the House passed a different motion. We do not particularly single out the Attorney General here, because, as he said in his statement yesterday, he wished that he was not in the position he was in. The Government as a whole are collectively responsible for deciding that they would simply ignore this binding, effective motion and revert to doing what they said they would do during the debate. Frankly, that cannot be allowed to stand. We have heard a lot of talk about precedent and about conventions of this House and respect for all that—surely, this is one area where the Government must respect the will of Parliament. They simply cannot set it aside.

Mr Clarke, the Father of the House, in his intervention earlier, made an interesting and positive contribution about a way around this. Interestingly, the Government did not take that up. They did not take it up during this debate and they have not taken it up previously, so clearly it appears they are not interested—they certainly have not said anything publicly up to now—in taking that suggestion forward. What they have done is say, “No, no, it doesn’t matter what is said by this House. It doesn’t matter what other suggestions are out there. We are going to stick to the plan.” Obviously, the Government have a grid somewhere, where it is on the plan that they will publish this reasoned summary position paper and have a statement, and that is it. This House will have the final say, and I hope that it will reiterate what on 13 November it ordered to be done.

We are told that this situation is unprecedented. It was said in the other place yesterday that such advice can be published in exceptional circumstances. I have also heard the argument used that the advice is privileged, but of course in the lawyer-client relationship privilege belongs to the client, not to the lawyer—not to the person giving the advice. The lawyer has a duty to protect the client’s privilege, but the reality is that if the client waives that right, the lawyer—the provider of the advice—is quite at liberty to disclose it. So the argument about privilege is bogus.

The Attorney General said yesterday that he wished he could comply with the order of the House, but that it is not in the national interest or the public interest. I am afraid it is not the duty or job of any Minister to decide that. The House has decided what it wishes to do and it is not for a Minister unilaterally to override that with no good reason.

Photo of James Heappey James Heappey Conservative, Wells

The right hon. Gentleman is a patriot, and he therefore understands national security and the national interest. Does he agree that it is quite probable that in the legal advice that the Attorney General gave to the Government would have been an analysis of the strengths and weaknesses of the Irish Government’s position and that to publish that in full would hand to the Irish Government an advantage in any subsequent negotiation?

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

I think the massive advantage to the Irish Government, other Governments and the European Commission in respect of future leverage over the negotiations is handed over in the withdrawal agreement. I do not accept what the hon. Gentleman says, because the Attorney General went on the record yesterday to say:

“There is nothing to see here.”—[Official Report, 3 December 2018;
Vol. 650, c. 557.]

So there is obviously nothing of concern about national security in his advice. That is what he said himself.

The reality is that we had this debate on 13 November. The Government had the choice to vote against the motion and decided not to because they feared they would lose the vote. Their abstaining from a vote on an Humble Address cannot invalidate the motion, because that would set a very serious precedent.

Some of the legal advice that the Attorney General has given to the Cabinet—the advice it is crucial that we must have—has already been leaked by members of the Cabinet to the press and media. I think the Attorney General accepts that. The reality is that members of the Cabinet have already released to members of the press and media some of the advice given by the Attorney General in terms to the Cabinet. The Attorney General is somewhat estopped, if I may use a legal term, from saying that the rest of us are not entitled to have that advice. If some members of the media and press are entitled to have it, Members of this House are entitled to have it.

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

Does my right hon. Friend agree that as the Government and the Prime Minister are going around the country trying to convince the populous that it is a good deal, this secretive approach only confirms in people’s minds that there is something to hide? If anything, the Government are scoring an own goal by refusing to publish the advice.

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

I thank my right hon. Friend for that intervention. Indeed, that very point about the Government actually scoring a massive own goal, in their own terms, has been made not from these Benches but by a former Cabinet Minister on their own side and by many Government Members. My right hon. Friend sums it up very well. What is there to hide? Given that the Attorney has said that there is nothing to see and given the fact that the clear motion was passed by this House, it is now vital that that decision is enforced and the bogus arguments against it rejected.

Photo of Dominic Grieve Dominic Grieve Conservative, Beaconsfield 1:54 pm, 4th December 2018

I am not sure that members of the public who come to watch our debates necessarily appreciate our role as the High Court of Parliament, but that is what we are. By virtue of history, we have been given a whole range of powers normally enjoyed only by others of Her Majesty’s courts, by which we regulate our affairs and maintain our own privilege—which also means, by virtue of the Bill of Rights of 1689, that we cannot be impugned in any other court—and by which we have coercive powers for dealing with those who transgress in front of us, and that can include Government Ministers. The difficulty we have—I say this having served on the Standards and Privileges Committee and having also been a Law Officer—is that our powers are entirely archaic, almost completely un-useable, and in many cases so old-fashioned and antiquated that any attempt to use them would probably run foul of most modern principles of justice. I am afraid that this situation has been allowed to prevail for decade after decade by a mixture of a failure of the House to grip the problems it faces and, of course, the happy complacence of Government, who have known that in reality the teeth are not really present for this House to be able to assert its authority.

Nowhere do we see all that come to a head more than with this issue. It is all very well criticising Keir Starmer for using a blunt instrument, but there are only blunt instruments to be used. He was fully entitled to table the motion and to seek from the Government the documents that he wanted. The Government chose—slightly to my surprise, I have to say—not even to oppose the motion, even though there were compelling arguments that could be presented. Indeed, I continue to be of the view that the Law Officers’ advice should not be published because it undermines the ability to provide proper confidential advice to Government.

That said, the method that was adopted—this may simply have been because of the speed with which the drafting took place—was undoubtedly very blunt. Given its ordinary meaning, as I interpret it the Humble Address extends not just to the Attorney General’s advice but to every bit of advice about the development and impact of the withdrawal agreement that was provided through the civil service to Government at any time during the two and a half years of tortuous negotiations with the EU. I have no doubt that most of that advice is unlikely to be of great relevance to what the House wanted to see. Moreover, some of it may undoubtedly contain confidential material that, if put in the public domain, could well jeopardise the national interest. To take an example, I do not suppose that the House would seriously contemplate requiring the Government to disclose the name of agents who work for MI5 or MI6. But we have to face that fact that this House does have the coercive power to make such a request. That highlights not only the untrammelled nature of the House’s sovereignty but the extent to which it can be open to abuse.

During the course of the debate on the Humble Address, I think the right hon. and learned Member for Holborn and St Pancras became aware that the terms of the motion were rather widely cast, because at that point he restricted them to seeking

“the final and full advice provided by the Attorney General to the Cabinet concerning the terms of any withdrawal agreement.”—[Official Report, 13 November 2018;
Vol. 649, c. 235.]

Having been a Law Officer and supplied advice to Government, I simply make the point that although it may surprise the House a little, I have simply no idea whether there ever was a final and full advice of the kind that was identified. In my experience, the advice provided by Law Officers comes in a continuous stream of dribs and drabs which, by letter to the relevant Department, to the Prime Minister and, if necessary, to the Cabinet, touches on a multiplicity of things without necessarily being drawn into a whole. I must say, therefore, that what is being sought is about as easy to measure as the length of a piece of string. It is not at all clear what the motion was seeking to grab on to, although I accept that in so far as it was seeking to acquire the original documents of some of the advice that was provided, it is manifestly clear that it has not been complied with; that is apparent.

Faced with that problem, where should the House go? Within this House there will, of course, be differences of view: the Government wish to protect their position; and the right hon. and learned Member for Holborn and St Pancras and all those on the Opposition Benches, and indeed some on my own Benches, who wish either to embarrass the Government or just to see this information, are going to be profoundly dissatisfied. The question of the culpability of Ministers is in any case not uniform. In defence of my right hon. and learned Friend, the Attorney General, he is not a member of the Cabinet, although he attends Cabinet, and, as the point has been made, he is covered by legal and professional privilege when it comes to disclosing the advice that he provides to his client. The one person who cannot be blamed for this mess is him. He came along to provide the best explanation he could yesterday, but the fact is he is not responsible for making the decision as to whether the documents that the House wants are disclosed. I assume that that may have been a collective decision of the Cabinet, although knowing the way that the Cabinet works, I am not even sure that that is necessarily the case. It may be an individual Minister, or it may indeed be my right hon. Friend the Prime Minister. Whichever it is, this also emphasises the blunt nature of the instrument, which is then reflected in the motion that has been brought before the House today.

Referring the matter to the Committee of Privileges may be seen to be getting the Government a little off the hook, but it is not a stupid course of action. I can, I am afraid, anticipate a little how it is likely to progress because, in its session, the Committee of Privileges will immediately come to the awareness of just how complex and bedevilling this entire area is because of the lack of clarity of both our Standing Orders and the processes of this House. However, simply to go ahead without doing that and to move to a statement of contempt—I am not quite sure and it has not really been explained where, if that is passed, we would proceed next—does not seem to me, on balance, to be the better course of action. I say on balance because I have sympathy with the position of the right hon. and learned Member for Holborn and St Pancras. However, I acknowledge that, on the face of it, we have processes in this House and if this House is to work properly, they should be capable of being met.

What this highlights over and over again for me, and has done for many years since I came here and particularly after I became a Law Officer, is that our processes and powers bear no relation to the real world in which we have to operate and that, as a consequence, they can cause serious injustice. That is something that all of us should be very careful to prevent.

Photo of Tom Brake Tom Brake Liberal Democrat Spokesperson (International Trade), Liberal Democrat Spokesperson (Exiting the European Union) 2:02 pm, 4th December 2018

May I start by praising the Attorney General for spending more than two hours answering questions, but may I also gently chide him for the manner in which, occasionally, his style of delivery descended rather into Vaudeville? Finger-pointing, faux bonhomie and expansive arm gestures may work in court, but perhaps he might like to leave those at the Bar of the House.

The Leader of the House referred to an arcane procedure and Government Members have talked about Opposition Members playing parlour games. The arcane procedures and the parlour games to which the Government Members refer are about holding the Government to account on a matter of contempt. Arcane they might be, but, clearly they are essential as well. Members will know that Parliament’s bible, “Erskine May”, makes it very, very clear that the Government’s actions are in contempt. The Government’s refusal to release the advice is an act that impedes the House in the performance of its functions, and what could be a more important function for this House than to be able to take the decisions in the next week or so in full knowledge of the impact of Brexit having seen the full legal advice on Brexit? That is why we are here today. That is why, Mr Speaker, I wrote to you on 28 November and subsequently signed the joint letter raising this issue of contempt.

The Government came forward with a reasoned position paper. Mr Grieve did a good job of explaining quite how complex and extensive the legal advice is that the Attorney General will have received, but that rather reinforces the point that the Attorney General’s producing a synopsis of said extensive legal advice spread over much correspondence runs the risk of presenting that synopsis in a way that is most advantageous to the Government. In relation to my intervention on Ms Dorries, who is no longer in her place, the only point that I was making again—I am very happy to get it on the record again—in relation to the advice about the Iraq war is that, clearly, that advice was cherry-picked, massaged and presented in a way that reinforced the Government’s case. That is the only comparison that I am making, with the possible risk of the Government, unintentionally perhaps, doing exactly the same thing in relation to the full legal advice that Ministers have seen—and indeed that Ministers have leaked. While a reference was made to that leaking, the Attorney General simply shrugged his shoulders as if leaking that advice selectively to the media by the Government is perfectly normal and acceptable in the daily course of Government business.

We know what happened in relation to that advice about the Iraq war, and, as for the Government’s amendment, we know clearly what the purpose of that is. Even with undue alacrity, the prospect of the Committee of Privileges addressing this before 11 December is precisely nil, so we will clearly not get that clarity, guidance and direction to the Government before 11 December. I must say that I suspect that that is what motivates the Government in pushing that amendment. This is, of course, a pattern of Government unwillingness to allow Members of Parliament access to the legal advice that we need in order to take the decisions that we need to take. The article 50 case is a very good example of that, as the Government have repeatedly refused to say whether article 50 is revocable, hiding behind the fact that they will not seek to revoke it, so Parliament does not need to know. I am very pleased that, today, the Advocate General has given a recommendation—it is only a recommendation, but one that is very likely to be adopted by the Court—that makes it very clear that article 50 is revocable. For Members of Parliament voting next week, it is critical to know whether, if a people’s vote is secured and if, at the end of that campaign, people vote to stay in the European Union, we have a means of revoking article 50 to bring that into effect.

Photo of Geraint Davies Geraint Davies Labour/Co-operative, Swansea West

On that point, does the right hon. Gentleman believe that the Attorney General gave advice to the Government on the revocability of article 50 and has hidden that advice from this House, and that is why we have not had that disclosure?

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

All we know for a fact is that a number of Members of Parliament, including, I suspect, the hon. Gentleman, have repeatedly asked the Government to confirm their position on that and they have not been willing to do so, which is why, on these Opposition Benches, we very much welcome the fact that the European Court will resolve this matter in the next couple of weeks.

Just on that issue of article 50, I wanted to thank Joanna Cherry for leading that charge, along with Members of the Scottish Parliament, and indeed also Mr Leslie, who is not in his place today but who has joined me in a supporting role to the hon. and learned Lady.

Photo of Mike Gapes Mike Gapes Labour/Co-operative, Ilford South

I am really pleased that the right hon. Gentleman, my hon. Friend Mr Leslie and Joanna Cherry took the risk of taking this case to the Court to establish an important principle. If the decision now is in line with the advice that is being given, then that is in the interests of the democracy of this country. We should all register our thanks to him and the other Members.

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

I thank the hon. Gentleman for registering those thanks.

The critical point for Members of Parliament to know is that, if we go beyond 21 January without a deal and start going down the track of no deal, it is open to this House and this Government to revoke article 50 to avoid a catastrophic exit from the European Union. I would argue, and many Opposition Members have argued, that we are entitled to know that information, and it is remiss of the Government to have kept it from us.

To conclude—[Interruption.] I knew that would cause celebration on the Government Benches, so I will speak for a little longer than I had intended. I accept that it is not a simple choice that Members have to make today. Publishing the full legal advice has serious implications—of course I accept that, and I think everyone on these Benches accepts that—but the ramifications of the Government ignoring the express demand of Parliament are of even greater import. That is why I urge Members to vote for the motion today.

Photo of Jacob Rees-Mogg Jacob Rees-Mogg Conservative, North East Somerset 2:10 pm, 4th December 2018

I think we need to start with why parliamentary privilege is so important, particularly those of us on the Government side, because there will come a time when we are not on the Government side, at which point the protections provided for us by parliamentary privilege are all the more important. Governments who run roughshod over parliamentary privilege when they are in government find that, when they are in opposition, their position is much harder to defend and uphold. When the Conservatives were in opposition, we disliked the streamlining of parliamentary procedures that made it easier for the then Government to get legislation through, because we found it harder to have the full debates and discussion that we wanted—the ability to discuss and sometimes even to delay things to which we were deeply opposed. That was a loss to us in opposition, even though it was a benefit once we were back in government.

My right hon. Friend the Lord President of the Council mocked the Humble Address procedure on the basis that it was ancient, but every morning when we come into this House and pass through security, we are exercising a right that dates back to 1340. Whether we have our pass on or not, we are entitled to come into this House and nobody is entitled to obstruct us. This is an important right because in times less benign than ours, people have wanted to obstruct Members coming into Parliament. We sit in a House where there is a very slim margin and it may be that, rushing back for a Division—perhaps a Division of confidence in the Government—somebody obstructs Members coming in. That would be a breach of our privilege and, though it is one of our most ancient privileges, it is actually a great safeguard of the proper democratic operation of this House.

We heard from the Treasury Bench and from other right hon. Members a very good argument for why the Humble Address should not have been passed in the first place, but today is the wrong day for that debate. That debate should have been held on 13 November and voted on, or not, according to whether or not it were the will of this House for the Humble Address to go through. The tradition of Humble Addresses is very clear—that the Humble Address is followed. Now, that does not mean that this House is irresponsible in passing Humble Addresses. We have heard suggestions that we might seek information from the security services. This House has never passed a Humble Address of such an unwise kind.

Although I am not, dare I say, the greatest admirer of the socialists on the Opposition Benches, I accept that they are responsible enough not to wish to endanger the security of our nation, but that Parliament has the power does not mean that Parliament will exercise the power. Indeed, and importantly, this House constrains its right of free speech in relation to the sub judice issue. We have passed Standing Orders, and we give power to Mr Speaker, to stop hon. and right hon. Members breaching the sub judice rule in order to ensure that the system of justice in this country proceeds properly. Likewise, we are entitled to limit the means of Humble Addresses and the information that can be received from a Humble Address, but we did not do so before 13 November. Therefore, what happened on 13 November ought to be complied with, because if we simply say that motions of this House according to great antiquity and precedent can be ignored because the Government feel like it, what is this House here for? How are we protecting the rights of the people we represent? How are we able to seek redress of grievances?

The Humble Address may have been unwise. Indeed, had there been a Division on 13 November, I would have voted against revealing the Attorney General’s information and advice to the Government. I did not think that the Humble Address was well advised, but the Government decided to accept the motion. Having done so, it was not then up to the Government to say that it was not in the national interest to do so. I am afraid that is a classic confusion; the Government interest and the national interest are different things. The Government interest is a political interest, and the national interest is a higher interest. In my view, the national interest is better served by respecting the privileges of Parliament than the convenience of the Law Officers. Therefore, in the national interest—not the government interest—this legal advice ought to be produced because Parliament has said so.

This is clearly a right that this House has. Every Select Committee has the delegated right to send for persons and papers, and this is simply an exercise by the whole House of requiring that papers be produced. But the Government, with their majority—perhaps a majority they cannot always achieve, but at least with a technical majority thanks to our friends in the Democratic Unionist party—ought to be able to stop any papers being produced that they believe are too confidential. Indeed, it is still open to the Government to bring forward a motion suggesting that the previous motion be overturned; there is precedent for overturning a Humble Address and seeking to do the opposite. There is a proper process for the Government to follow if they do not want to release these papers, rather than sticking their feet in the mud and saying no.

Then we come to the motions before us today, and here I agree with my right hon. and learned Friend Mr Grieve. I do not think that the motion before us actually works because it is too indistinct about who it is criticising—that is, it is criticising Ministers broadly, rather than the ones specifically concerned. The motion needed to be more specific about who it was objecting to and who it was holding in contempt, and indeed it ought to have used the rights of Parliament to inflict some punishment on the person who is deemed to be in contempt.

Photo of Helen Goodman Helen Goodman Shadow Minister (Foreign and Commonwealth Affairs)

If the hon. Gentleman feels as he has described, why did he not table an amendment to the motion in the name of my right hon. and learned Friend Keir Starmer, setting out what he thinks ought to have been done?

Photo of Jacob Rees-Mogg Jacob Rees-Mogg Conservative, North East Somerset

Because the Government have tabled an amendment that I feel I can support—[Interruption.] We are not in pantomime season quite yet. [Hon. Members: “Oh yes we are!”] All right, I give in on that one. I am defeated on that particular point, but not on the substantive one.

I am happy to support the Government’s amendment, because I think it is right that a Committee of this House look at the issue in broad terms. It may be right that the House wishes to take a self-denying ordinance on the extent of Humble Addresses. It may be that we would like to say specifically that they would be deemed disorderly, and therefore not tabled, if they related to matters concerning the security services or other types of information where there would be a broad consensus that those matters should not be brought forward. The ability to demand papers could require—dare I say it?—that the tax returns of Opposition Members be brought to the House—[Interruption.] Mine would be of so little interest that I cannot imagine it happening. That would be a clear abuse of the precedents that we have. So it may well be right that the Privileges Committee should consider broadly how Humble Addresses should be used to ensure that they are effective, because currently they ought to be effective and the Government ought to abide by them.

Photo of Andrew Murrison Andrew Murrison Chair, Northern Ireland Affairs Committee

I am following my hon. Friend’s remarks with a great deal of interest. He will know, since he is an expert on “Erskine May”, that it says very clearly on page 168, from memory, that the Humble Address should not normally be used on matters that touch directly on Bills before Parliament, as this clearly does. So was the Humble Address being used correctly, in his view, or incorrectly?

Photo of Jacob Rees-Mogg Jacob Rees-Mogg Conservative, North East Somerset

I am sorry to say that my hon. Friend is not quite right. There is not a Bill before Parliament on this issue—there is a motion before Parliament on this issue. Those two things are clearly separate matters that are not to be confused. I have no doubt, Mr Speaker, that had a Humble Address been brought forward on a Bill before Parliament, it would have been ruled disorderly and therefore would not have been a subject for debate. For the benefit of the Hansard reporters, Mr Speaker is nodding, and I therefore hope that this can go into the record as an authoritative reply.

I have one concern about the reference to the Privileges Committee, and that is of course that the Attorney General is himself a member of that Committee, though a non-voting member who does not affect the quorum.

Photo of Andrea Leadsom Andrea Leadsom Lord President of the Council and Leader of the House of Commons

The Law Officers would recuse themselves from any such meeting.

Photo of Jacob Rees-Mogg Jacob Rees-Mogg Conservative, North East Somerset

I am extremely grateful for that. It gives me complete confidence in supporting the Government’s amendment. But I absolutely reiterate that, however the vote goes today, the Humble Address must be obeyed unless overturned. For the Government to fail to do so would not be treating Parliament properly. We on the Government Benches must remember the great need for us, when we are in power, to defend the rights of Parliament for those occasions when we will not be.

Photo of Geraint Davies Geraint Davies Labour/Co-operative, Swansea West 2:22 pm, 4th December 2018

The question before us is whether there is additional information that was in the legal advice that is relevant and pertinent to the crucial question that we must ask ourselves in voting on the withdrawal agreement. Against that, the Government have suggested that there are security and national interest matters to defend. The motion says that Ministers should provide

“the final and full legal advice provided by the Attorney General to the Cabinet concerning the EU Withdrawal Agreement and the framework”.

That does not imply that every email and every jot and tittle is required. In terms of national security and the national interest, that means that there is not a great risk.

The question is whether there is a reason to believe that critical legal advice has been withheld. I suggest that there is such a reason. Yesterday, I put it to the Attorney General, following advice from counsel in two chambers, that the European Union (Withdrawal) Act 2018 gives the Prime Minister the right to submit article 50 based on an advisory referendum, but if that referendum has been found to be conducted illegally and subject to cheating and lying, then the advice is flawed and so the notice should be withdrawn—and we have heard from the advocate general that in all probability it can be withdrawn. Was this advice tendered to the Government or discussed with them by the Attorney General? He did not mention it at all, and yet it is advice that is available. That suggests to me that the advice that has been given to this House is incomplete for us to draw our conclusions.

I turn to the argument that the Government should now revoke article 50 on the basis that the advisory referendum was flawed. First, we already know that the leave campaign misled the country during the referendum, deliberately or not. Secondly, multiple investigations by the Electoral Commission have found that the leave campaign broke campaign finance law. Thirdly, had those offences committed by the leave campaign been committed in a general or a local election, the result would have been legally void. Fourthly, the Government have a legal duty to take all relevant considerations into account when making a decision. Therefore, the fact that in any other election the referendum result would have been void due to one side’s illegal conduct is a relevant consideration when deciding whether to give effect to the result—that is, in ratifying the withdrawal agreement that would give Brexit effect.

In essence, then, the advice on the withdrawal agreement that the Attorney General should have considered would be whether the Government were failing in their duty by promoting an agreement when the animating factor of the agreement—the referendum—was so fundamentally compromised. Therefore, the Government are acting illegally by moving forward with Brexit without giving proper consideration to these facts. This whole debate and discussion was not included. Whether or not one agrees with it, this discussion would presumably have occurred within the ambit of the Attorney General, but we do not know that. That is a key reason to believe that the advice being given has been doctored for party political reasons. We need the full and latest advice.

As we have heard, the advocate general is saying that article 50 may be revocable. What was the view of the Attorney General given in the legal advice to the Government? We have not been told. The Attorney General must be aware of these points of law but has not listed them, and so we must conclude that he is withholding from the House relevant issues not for the national and public interest but for party political reasons, and is therefore in contempt of this House.

Photo of Antoinette Sandbach Antoinette Sandbach Conservative, Eddisbury

The hon. Gentleman has just made very serious allegations. Does he not recognise the importance of the legal professional privilege that attaches between a lawyer, as an adviser, and their client?

Photo of Geraint Davies Geraint Davies Labour/Co-operative, Swansea West

Of course I do. The whole point is that this House is entitled to the full legal advice. The Government are hiding behind this cloak of saying, “Oh, the national interest; oh, negotiations; oh, security.” That has nothing to do with it.

What I am illustrating with these legal arguments is that there are alternative views that need to be fully discussed so that we can take the right decision on the withdrawal agreement in full knowledge of the facts. We have had a doctored version that is politically spun in the interests of the Government getting their objectives through. They are protecting themselves by saying, “Oh, there might be issues of national security, MI5, the public interest, etc.” I have great support, I must say, for the Father of the House’s suggestion that if there were such problems with national security and so on, those parts could be redacted and we could see the full legal advice.

This motion focuses clearly on the legal advice provided by the Attorney General on the EU withdrawal agreement. Implicit in that, in my interpretation, is that we obviously do not need lots of details about MI5, national security, the negotiating position and so on. What we want to know is the legal position in respect of article 50 and of the illegalities during the advisory referendum that made it flawed, thereby undermining the power that the Prime Minister has under the EU (Withdrawal) Act based on the advisory referendum that we now find is flawed. None of this was brought before the House. Why? Either because the Attorney General and his colleagues are incompetent or because they are withholding that information.

Photo of Hannah Bardell Hannah Bardell Shadow SNP Spokesperson (Digital, Culture, Media and Sport)

As the hon. Gentleman says, the Government are hiding behind the national and public interest and claiming to be the final arbiter of public interest. Does he agree that they are not the final arbiter of public interest, despite what some on the Government Benches may think, and that it is not in the public interest for the UK Government to be governing in secret, with Members of this House not having all the information to make a proper, educated decision?

Photo of Geraint Davies Geraint Davies Labour/Co-operative, Swansea West

Yes, that is precisely right. What the House wants is the complete legal arguments on either side of the debate on the EU withdrawal agreement. These are difficult issues; we all accept that, and we are all grown up. They might say, “Well, there are all these things about national interest, negotiation and security,” but people are not interested in that. We want the full facts. I have made some simple legal points that show the full debate has not occurred.

Photo of Andrew Murrison Andrew Murrison Chair, Northern Ireland Affairs Committee

Is the hon. Gentleman interested, like I am, in legal advice given to the European Commission and its negotiators by its lawyers, which presumably the European Commission would like to be privileged in the same way as advice to the Cabinet is? Has he interested himself at all in that side of this negotiating process?

Photo of Geraint Davies Geraint Davies Labour/Co-operative, Swansea West

Yes, I am sure we would all be interested in that if it were available, but the issue on the table is whether the Government are in contempt, and there is reason to believe they are in contempt, because a lot of the legal arguments are simply being taken out.

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

My hon. Friend referred to the suggestion of the Father of the House. Does he recall that the last time a Humble Address was passed by the House, which instructed the Government to hand to the Select Committee on Exiting the European Union the exit analyses, I made it clear to the Government on behalf of the Committee that the Committee would take the decision about what was released? In the end, having read all the pages, we released 36 or 37 of them and held three back, because we accepted the argument made by the Government at the time, that those might not be in the national interest, given that negotiations were taking place. That is an example of the way in which a Committee of the House has been able to exercise that judgment on behalf of all Members.

Photo of Geraint Davies Geraint Davies Labour/Co-operative, Swansea West

That is a very helpful intervention, and it builds on the proposal of the Father of the House.

There is a time constraint here. Obviously, the idea behind the amendment is to kick this into the long grass so that we do not have full legal clarity to make an informed decision when we vote next Tuesday. It is critical that all the legal advice is available to Members before then. If there were a facility to enable the redaction of irrelevant and possibly dangerous facts, figures and information in relation to our national interest, national security, negotiating position and so on, obviously that would be much better. The main question is, are we going to have the full legal advice, or are we going to say, “What can you do? They’ve played the national interest card”? As my right hon. Friend Hilary Benn said, there should be—I hope there will be—a way through this maze, so that we have the full advice before the crucial vote.

Photo of Kenneth Clarke Kenneth Clarke Father of the House of Commons 2:32 pm, 4th December 2018

I follow up entirely on what has just been said by Geraint Davies. He and Hilary Benn obviously have some sympathy with what I said.

It seems to me that the House is facing an extremely difficult dilemma, which was exactly the one faced by the Attorney General yesterday. There are two very important constitutional principles involved here that are important to people on both sides of the House, and unfortunately the present situation puts them in direct conflict with each other. The first is the sovereignty of Parliament and its ability to instruct the Government to do things that the Government do not want to do.

I will not repeat what my hon. Friend Mr Rees-Mogg said, because I entirely agree with everything he said, but the Humble Address is an extremely important weapon of this House. It is the duty of Parliament sometimes to instruct the Government to do things. We know that whenever the Government lose a vote, they think Parliament is wrong—they disagree—but they should comply. Parliament in recent years has greatly weakened its powers vis-à-vis the Executive. We should all think ahead to future Parliaments and simply not weaken it any further.

The Government did not vote against the motion when it was before the House because they knew they were going to be defeated. We all know why they asked Conservative Members not to vote at all. I disapprove of that. A Humble Address is an instruction. I disapprove of refusing to vote on Opposition motions and other motions. It may well be that constitutionally they are not legally binding, but we have never previously had a Government that just said, “Well, the House of Commons can express opinions if it wants, but as they’re not legally binding, we won’t bother to attend, and not many of us will listen to it.” That is a very unpleasant step.

Ahead of us are votes, including the meaningful vote on the withdrawal agreement and votes on the Bill that is necessary to implement that. Particularly on the meaningful vote, I hope that the Government abandon the idea that the only vote of any legally binding significance is the one on the Government’s proposal—yes or no—and that if the House wants to pass amendments or motions or express a different opinion, that is very interesting and a matter of opinion, but the Government will ignore any amendments. That was virtually what was being urged on the Procedure Committee a few weeks ago.

I hope that when we get on to sorting out the procedure for next week’s vote on amendments and the motion and for the Bill that ultimately follows, we go back to the standard procedure, whereby amendments can be tabled to Government motions before the motion is put, and when amendments are carried, the only vote remaining of the House is whether it approves of the motion as amended. With great respect, I do not think we should take any notice of all this stuff about the Government’s duty being to listen to what the House says and then decide, in their opinion, whether the public interest justifies complying with it. I am entirely on the side of the critics.

On the other hand, as my hon. Friend the Member for North East Somerset said, the Conservative party will deeply regret when one day it is in opposition that it has challenged the authority of Parliament, and the Labour party might well come to regret when it gets into government its attempts to override the convention that Governments are entitled to confidentiality when they get legal advice from the Attorney General. It is quite ridiculous to throw out either of those principles, because there are occasions when they are both extremely important.

I am not a lawyer in the same rank as my right hon. and learned Friend the Attorney General, though I have practised for many years. I once declined an offer of an appointment as a Law Officer, because I preferred to stay in the departmental job I was then in. I am now totally out of date—I accept that—but I am very familiar with the circumstances when a lawyer gives advice to his clients and gives honest opinions of the legal advice. Of course a lawyer is talking about the circumstances of the case, but Law Officers’ advice in particular, which I have seen many times when I have been given it as a Minister, is all muddled up with questions of policy, the law, arguments about tactics and comments on what the other side might do. Advice is given to a client in a way that 100% should be an accurate expression of the lawyer’s opinion of the law, but it will be coupled with lots of other things, because the lawyer does not just sit there ignoring the merits or what the client wants to achieve.

Photo of Justine Greening Justine Greening Conservative, Putney

My right hon. and learned Friend is making a powerful argument. He is saying that the House should not have to choose between those principles, and what we should have expected was more leadership from those on both Front Benches in order to reach a proper, thoughtful solution on how to strike the right balance—just as we have on security matters, for example. This is a unique position we find ourselves in, but it was not beyond the wit of the political leaders in our country to reach a solution and avoid this point.

Photo of Kenneth Clarke Kenneth Clarke Father of the House of Commons

My right hon. Friend summarises my argument in a very neat way. That is exactly the case. I will not do the Father of the House “What it used to be like” and all that sort of thing, but I would have expected—it would easily have happened in my time—the usual channels to sort this situation out.

Photo of Kenneth Clarke Kenneth Clarke Father of the House of Commons

Well, perhaps the usual channels were more reliable in the past. We would get together and agree that the House has passed a resolution, but there are these problems, and we satisfy the Opposition that their political desires can be satisfied and they can get all the documents with the embarrassing political opinions of the Attorney General—though I do not think they will find much, because the Attorney General is pretty candid. He is a very sound Brexiteer. He and I do not agree on Europe in the slightest.

They can excise things such as security, which we have talked about. I do not know what is being excluded or held back, but it is likely to be comments on the negotiating position of the Commission, the strengths and weaknesses of the Government’s case and where there are risks. A great deal of a lawyer’s advice is, “This is my opinion, but the risks involved are this”. Some of these comments about other Governments, the Commission and so on may well not be in the public interest to disclose. There are reasonable people on both sides of the House and on the Procedure Committee, and I would have thought that we should certainly consider where we are going.

Photo of Bill Cash Bill Cash Chair, European Scrutiny Committee

Will my right hon. and learned Friend give way?

Photo of Kenneth Clarke Kenneth Clarke Father of the House of Commons

I will not give way, because I am concluding. It will not take too long, because it is just my one suggestion that I am pursuing. I have made it twice now, so I will not labour it too long.

It seems to me likely that the motion we are debating is going to be carried. There must be a very considerable risk of that. I do not know whether the Chief Whip thinks he has a majority for resisting this motion. Even then, I would hope that we will consider how to do this in a responsible way that does not prejudice the national interest or the interests of British Governments. I would also hope—I am not sure that the Committee of Privileges is the best place to do this, but it was done in the case of the Exiting the European Union Committee, as we have been reminded—that somebody nominated as responsible by the Opposition could have a look at the documents and give the Attorney General the opportunity of explaining why, yesterday, he was so obviously wrestling with a dilemma or problem of conscience about its simply not being in the national interest to put all this in the newspapers. The previous problem was solved by redactions, and I still urge that there should be redactions.

Nobody in the Opposition is going to allow the Government just to hold back things that are politically embarrassing, somewhat at odds with what the Government are now saying or advocating a tactic that the Government in the end chose not to use, and all that. Because we lost the motion for a Humble Address, I fear that Conservative Members have to be braced for that if these documents do come out. However, there is a public interest in not undermining the confidentiality of the legal advice.

I repeat my suggestion. No one knows where we are going in politics, who will be in government and who will be in opposition for very long, but what matters is that this Parliament is not weakened any further and that the ability of Governments of whatever party to rule in the national interest is not undermined. I repeat my suggestion, and I think that if the Opposition are victorious, they should in the public interest consider how far they wish to press it. I am sure that the House as a whole would accept it if they held back in some ways and the Law Officers’ confidentiality was left intact.

Several hon. Members:

rose—

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. Before I call the next Member wishing to speak, may I very gently point out to the House that, although many Members still wish to speak, afterwards we have the business of the House motion to consider and the debate itself with a protected period of eight hours? I make this point simply so that Members can factor that into the equation and no doubt take account of the mood of the House. That is the only consideration I am inviting colleagues to contemplate. From my point of view, there are, outside family, few joys greater in life than listening to right hon. and hon. Members on both sides of House and from all points of view. [Interruption.] I should get out more, somebody says from a sedentary position. I am the servant of the House, so I am not complaining—it is a joy—but people might want to bear in mind that their own enthusiasm to speak is not always matched by a comparable enthusiasm of everyone else to hear them. I call Mr Chris Bryant—and that is not personally directed at him. It was not personal.

Photo of Chris Bryant Chris Bryant Chair, Finance Committee (Commons) 2:44 pm, 4th December 2018

Your wisdom, Mr Speaker, in always making that point just before you call me is shared by the whole House, I am absolutely sure. So we are all united now and everybody can just agree with what I am about to say.

Although I sympathise with the arguments made by the Father of the House and for that matter with the points made by Mr Rees-Mogg, I disagree with the conclusion to which they have come. I am delighted that the motion does not mention the Attorney General by name because I do not think this is a matter of the Attorney General being a dishonourable man at all. I am very fond of the Attorney General. I think he is a wonderful man. I think he is entirely honourable and, yesterday, he did his level best in the Chamber to provide what he thought he could, within the terms and the strictures given to him by the Government. However, I would say that we are today facing an extraordinary moment. I cannot in the history of Parliament find a moment when the Government have referred themselves to the Committee of Privileges. The best argument they have today, in response to the motion moved by my right hon. and learned Friend Keir Starmer, is—“Instead of deciding already on the House’s behalf that the Government are in contempt, we will refer it to the Committee of Privileges.” Always in the past, that has been to decide, prima facie, that there is a case to answer. So the Government themselves accept at the very least that there is a case to answer about their being in contempt. I cannot think of another moment in our history when that was true.

In fact, as several Members have already said, the Attorney General himself in a sense confessed his own guilt to the charge of contempt yesterday. He said on the motion for the debate we had previously:

“We should have voted against it.”—[Official Report, 3 December 2018;
Vol. 650, c. 579.]

Of course we should have done. It would have been good if the Government had made in the debate back then all the arguments they are making today and made yesterday afternoon. Some of us might have listened to the argument about national security then. It might have been an appropriate argument then, but it was not an appropriate argument yesterday and, for that matter, it is not an appropriate argument today.

The Attorney General repeated time and again yesterday that he knew he was not fulfilling the will of the House. That is what we are asked to decide today—whether the Government are fulfilling the will of the House. He himself said yesterday that he was not fulfilling the will of the House. In an extraordinary moment, he said:

“The House has at its disposal the means by which to enforce its will.”—[Official Report, 3 December 2018;
Vol. 650, c. 574.]

That is what we are doing now. To all intents and purposes, the Attorney General yesterday asked us to do what we are doing this afternoon and I think he fully accepts that the House has to be able to have its way in the end.

I say to Mr Grieve and the hon. Member for North East Somerset, the other thing that is extraordinary about the motion before us—the Opposition motion, supported by the other Opposition parties—is that there is no sanction involved in it. In fact, the only thing it requires to happen is that the will of the House is abided by. That is the only thing. It may be that we have to return to this if the Government choose to ignore it, but my suspicion and hope is that, if the Opposition motion is carried today, the Government will say, “Alright. Fair do’s. That’s twice we’ve been told now. We do actually have to abide by the decision of the House.”

Photo of Jacob Rees-Mogg Jacob Rees-Mogg Conservative, North East Somerset

Could the hon. Gentleman help the House by explaining what the next step would be if the Government did not then publish the information and what procedural effect could be had or what motion could be brought forward to follow up on the motion before the House today?

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

I do not want to go back to 1340, as the hon. Gentleman did, and I am not going to. I prefer to cross my bridges one at a time. I am hopeful for all the good reasons that he himself adduced that, if the House for a second time decides to insist on its will, the Government will then comply. To be honest, if that were not to be the case, I hope other hon. Members who today are dubious about this procedure would want to stand in favour of more robust measures. The anxiety is of course that there is a time factor. We cannot let this roll on until after next Tuesday because then the Government would have completely defied the will of the House beyond the time necessary.

Photo of Chris Philp Chris Philp Conservative, Croydon South

A few moments ago, the hon. Gentleman referred to having to implement the will of the House. Does he believe that there should be any limitation on the House’s ability to impose its will, for example, if it came into conflict with an individual’s personal or civil liberties?

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

In the debate that would transpire, I do not think that hon. Members would vote for such a motion. The hon. Gentleman asks me a hypothetical question, and we have been dealing with lots of hypotheticals. I have tried to search through history for a moment when the Government refused to abide by the will of the House when there was a Humble Address and I simply cannot find one. We should therefore deal with the actuality rather than the hypothetical. I say to Conservative Members that it is all very well when sitting on the Government Benches to say that the Government should have their way, but that does not normally serve the long-term interests of the nation, and in our current system, the Government have phenomenal power.

Photo of Oliver Heald Oliver Heald Conservative, North East Hertfordshire

The hon. Gentleman knows that our Committees often ask for papers and sometimes the response to such requests is to say that the documents are legally professionally privileged. In those circumstances, the House tends to use a bit of discretion and common sense and often an agreement is reached about exactly what is to be disclosed. Is not that what is needed here?

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

It would have been interesting if the Government had made that argument, but they did not. They made no argument—they allowed the motion to go through. If they had said in the meantime, for example, yesterday afternoon, “We will provide the document that you want. We’ll give it to the Chair of the Exiting the European Union Committee, which has a majority of Conservative Members, and it can decide what should be in the public domain”, I think the House would have been content. That would have been a perfectly logical process to adopt, but the Government have not done that. Perhaps they will do it later today if they lose the motion—I do not know.

Let me consider the important substantive point. Can the House require the Law Officers to provide their legal advice to Parliament? It is important that Select Committees can require documents of all sorts of people outside Parliament, and it is difficult to enforce that if we cannot even require documents of Ministers. Yesterday, the Attorney General referred several times to “previous editions of ‘Erskine May’” to show that “the motion to return” is traditionally always

“confined to documents of public and official character.”—[Official Report, 3 December 2018;
Vol. 650, c. 563.]

That was his argument for saying that “Erskine May” did not really allow for Law Officers to provide anything that was sought by the House, even though the current 24th edition does exactly that. He suggested that the 22nd or the 23rd edition had changed the rule and that we should return to a previous version.

Perhaps the Attorney General was referring to the 10th edition of “Erskine May”, which, as I am sure the hon. Member for North East Somerset knows, came out in 1893. In that, the traditional version of this doctrine, which I think the Attorney General meant, is laid out:

“The opinions of the law officers of the Crown, given for the guidance of ministers, in any question of diplomacy or state policy, being included in the class of confidential documents, have generally been withheld from Parliament.”

I think that the Attorney General believes that that should still be the case, although that has been superseded. Unfortunately for the Attorney General, “Erskine May” goes on to say:

“In 1858, however, this rule was, under peculiar and exceptional circumstances, departed from, and the opinions of the law officers of the Crown upon the case of the Cagliari, were laid before Parliament.”

I will not go into the instance—I know that hon. Members are saddened by that.

The point is that, when the House has required that the Law Officers provide the information, they have always done so. The Attorney General’s argument therefore does not stand.

Photo of Michael Tomlinson Michael Tomlinson Conservative, Mid Dorset and North Poole

That also appears in the 17th edition of “Erskine May” from 1964, to which I will refer if Mr Speaker calls me. In the case to which the hon. Gentleman refers, in the middle of 19th century, the Minister voluntarily gave that advice, which was not demanded by the House.

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

It was required by the House. Indeed, it was required by the House of Lords and the House of Commons. The point about the 1893 version, which survived for a while, was that the information was provided

“under peculiar and exceptional circumstances”,

but they were peculiar and exceptional in a remarkably similar way to the current case, because the information dealt with international treaties and the relationship between other countries in Europe.

The House must surely be able to require documents. Just as the Speaker is the servant of the House, so in the end, the Government have to bow the knee to Parliament. It is not good enough for the Government to say, “You’re all wrong; you’re benighted; you don’t understand the full implications. We, the Government, are the only people who have seen the whole truth and understand the security implications.” If they want to find some other arbitration method through the processes of the House, such as a Select Committee, that is fine, but that is not what they have done.

In the end, we reach the simple point, which I do not think a single one of my constituents would understand: the Government look as if they are trying to keep something secret; the Law Officers want to say one thing in private, in Cabinet, and another in Parliament. That is not to accuse anybody of hypocrisy. It is simply to say that my constituents would not understand why the Government would want to keep the information secret. I say to Government Members: one day, you will sit on the Opposition Benches and if you vote against this being contempt and therefore against requiring the Government to produce the documents, that power will be gone forever.

Several hon. Members:

rose—

Photo of Bob Neill Bob Neill Chair, Justice Committee 2:56 pm, 4th December 2018

I am grateful, Mr Speaker, and in an endeavour to fulfil that injunction, I say, as lawyers would, that I adopt most of the arguments that my right hon. and learned Friend Mr Grieve made, particularly his masterly analysis of some of the matters, and I do not intend to repeat them.

However, it is important to recognise that there is a potential conflict between two important concepts: the revived use of the Humble Address, which may be of value to the House, and the imperative of protecting the concept of lawyer-client privilege generally, and particularly as it relates to advice given to Government. Having been a much less distinguished member of the Government than my right hon. and learned Friend Mr Clarke, I confirm what he said about the way in which legal advice is received by Ministers. The impression has been given that it is as if, a little like in private practice, we are asked to produce one big rolled-up opinion as a nice document for which one charges appropriately. That is not what happens in practice here. We need to draw that distinction.

Another point concerns the particular nature of the Law Officers’ convention, which goes beyond the normal lawyer-client privilege. Chris Bryant rightly conceded that it was wrong to attack the Attorney General because he is not the client but the Government’s lawyer. Having known my right hon. and learned Friend the Attorney General professionally and personally for the better part of 30 years, I have absolute faith in his integrity. I believe that he did everything he could to fulfil the injunctions placed upon him. I have absolute confidence that he spoke frankly and that he would not, as Tom Brake, who is not in his place, unworthily suggested, cherry pick. My right hon. and learned Friend has never approached his responsibilities as a lawyer or a politician in that way. In a sense, the wrong person has been put in the dock.

I will support the Government amendment because the conflict between the use of the Humble Address and protecting parliamentary privilege requires something more than the summary disposal that will come at the end of the debate. The way in which we deal with the interaction between those two matters warrants serious consideration. If the Humble Address process is to be updated, perhaps it is a matter for not just the Committee on Privileges, but the Procedure Committee to look at. I offer that as a constructive suggestion.

For a proportionate way forward, the Committee on Privileges is best placed to consider the matter in a dispassionate and evidence-based way and I therefore support that. Perhaps the Committee might look at the option that the Father of the House floated. However, for today, I urge hon. Members to accept the Government amendment and not to imperil a fundamental legal and constitutional privilege.

Photo of Peter Bone Peter Bone Conservative, Wellingborough 2:59 pm, 4th December 2018

Much of the debate today has been about what the debate should have been back in November. I am going to dismiss those arguments. Had a vote taken place in that debate, I would have voted with the Government. However, they did not put it to the vote and they accepted the motion. That is a matter of fact. It is therefore clear that not providing the information is a contempt.

The Father of the House, my right hon. and learned Friend Mr Clarke, and my hon. Friend Mr Rees-Mogg argued the problem that it breached the other important aspect—confidential legal advice for the Government—which I also accept. It seems to me, however, that the only way we will get something like what the Father of the House suggested is if we vote for the contempt motion, so that the Government can then come back, overnight if necessary, to suggest that option. I do not see how we get to that if we vote for the amendment because it will go off to the Privileges Committee.

I was undecided before I came into the Chamber, but because of the arguments from my hon. Friend the Member for North East Somerset, the Father of the House and, for that matter, Chris Bryant, it seems to me that the motion before the House, signed by spokesmen for six different parties in this House, is not actually critical of any particular Minister. All it says is what the original motion said—it is perhaps even more precise than the original motion—about publishing the legal advice. Unless something changes very dramatically between now and the end of the debate—I have to leave the Chamber, Mr Speaker, as the Chief Whip would like to have a word with me—I think that, if the House votes for the contempt, a compromise will happen and we will get hopefully properly redacted information before we vote next Tuesday.

Photo of Bernard Jenkin Bernard Jenkin Chair, Public Administration and Constitutional Affairs Committee 3:02 pm, 4th December 2018

I am most grateful to you, Mr Speaker, for letting me speak now. I have been able to listen to the debate before deciding whether to speak. That may be unusual.

I rise to speak because the Public Administration and Constitutional Affairs Committee is in the process of concluding our inquiry into the status of resolutions of this House. We have been looking at the question of what we call “motions of return”: how they should be dealt with and what their legal status is. At the moment, how a Government responds to a Humble Address is merely a matter of precedent and convention. It is not a matter of law. It is not a matter of statute law or of common law. Therefore, this is not a device that should be overused or used irresponsibly. I am not casting aspersions on anybody’s motives. I just make that observation.

This House operates on the basis that it is not the Government. The Government exist as a separate legal entity and function when this House is not sitting, when Parliament is prorogued and even when Parliament is dissolved. Parliament holds Ministers to account and we scrutinise the work of the Government. We make the laws that bind the Government, and this House controls the supply of money to the Government and the Crown. But we do not run the Government. We have parliamentary Government, but not Government by Parliament. The point about labouring this little constitutional essay is that if we forget that, there is then confusion and we risk creating more confusion about how the distinct roles and responsibilities of Parliament and Government have to be divided if we use our powers and procedures irresponsibly, unpredictably, in the wrong circumstances, or—dare I say?—as a bit of oppositionism.

Where does that leave this Humble Address, a device that until very recently was not used since the 1850s? We find ourselves in a very abnormal political atmosphere. I will come back to that point in a moment. This device is known as a motion of return. If it was to be used indiscriminately and frequently, if the Opposition were to use the vulnerability of the Government to demand the advice to Ministers as well as legal advice, the minutes of internal meetings, previous drafts of policy or speeches, or matters of national security, it would be impossible to conduct the Government business. That does not happen, because we rely on the self-restraint of Parliament.

The credibility of the unwritten powers of this House depends on their responsible exercise. As they cease to have credibility, they will not be respected. Incidentally, the Select Committee has just returned from a visit to the US Congress. The US, of course, has a written constitution. One might think that that would provide all kinds of solutions, but it does not. They are suffering from exactly the same problems and exactly the same kind of breakdown in the understanding of the norms and conventions that surround their written constitution. Even in the US, it is not unknown for the Executive to ignore new laws passed by Congress.

I referred earlier to the normal atmosphere that we usually enjoy in politics and how, until very recently, motions of return had fallen into what our learned Clerks call “desuetude”—that is, they had ceased to be recognised as functioning bits of the constitution. So why are they being revived now? First, we have a minority Parliament. In particular, we have a minority Parliament where the confidence and supply agreement with the Democratic Unionist party appears to have broken down. Secondly, as in the US, politics has become extremely polarised, particularly between the two factions of remain and leave. The referendum demonstrated that the balance of opinion is different in the country than it might be in this House. That presents particular challenges. Thirdly, just as in the US, there is a breakdown of trust: trust in politicians generally, and trust, restraint and respect between the political parties and between factions. We have noticed—have we not?—how deeply embittered some of the political arguments are particularly around the referendum and the European Union question. As in the US, norms of procedure and convention become overshadowed by partisan dispute and political opportunism. I invite the House to look at the US and the endless confected rows about matters of supposedly fundamental constitutional importance, which we can see from this distance are really just partisan politics.

There is a strong case for reviewing and codifying in some way many of the ancient devices, procedures and powers of this House, but that would not resolve what we should do today. Keir Starmer underlined the real weakness of the justice in his case. Its weakness is a matter of procedure that is in the public interest. He warned the Government that they faced being found in contempt of the House. That supposes we are a high court of Parliament, which we are not, and that we are operating as some kind of judicial authority on this matter. But of course this Chamber is not behaving like anything we would recognise as a court. I am afraid that this vote is likely to divide on party lines. There is very little that is objective about this finding of contempt, which he invites the House to do in this debate.

The Government have made a sensible compromise. Chris Bryant said that the Government seemed to admit that they were in contempt. The amendment is an admission that there may be a contempt, by referring the matter to the Privileges Committee where there might be a slightly less partisan and heated atmosphere and where there might be a more objective atmosphere in which some of the ideas and procedures for sorting this out as quickly as possible could be reached.

I invite the Leader of the House to consider whether she would accept a little addition to her amendment—that the Committee should be required to report by 10 pm on Monday, so that there is no suggestion that the Committee is being used as a device to knock this into the long grass. I am going to give her my unqualified support for her amendment anyway, but I suggest that she could accept that proposal, or at least invite the Committee to report early next week in time for the debate—not that I think many people will change their minds as a result of what the Government may or may not publish. I think this issue has got caught up in this great dispute about our future relationship with Europe. It is the elephant in the room in the debate, and this is not necessarily the best circumstance under which the absolutist device of a Humble Address should have been exercised in the first place.

Photo of John Baron John Baron Conservative, Basildon and Billericay 3:10 pm, 4th December 2018

I am neither a lawyer nor a constitutional historian, but I concur with my right hon. and learned Friend Mr Clarke, the Father of the House, and indeed, my hon. Friend Mr Rees-Mogg, in suggesting that it is regrettable that we have got to this position. One would not—Government Members, certainly—start from this position if we had to choose, but as hon. Members, we have to make a decision about the facts before us. The point I put to the Opposition is that they have failed to answer a very obvious question. Their motion is a take-it-or-leave-it, all-or-nothing approach, which does not recognise the sensitivities of the situation at hand, which has been built up by convention over decades, if not centuries, in trying to balance the will of Parliament with the national interest.

Many of us in this place have no problem with the concept that the will of the House of Commons should be recognised by the Government, but there is a delicate balance on issues of national interest. I do not think that anybody in this place would question the national interest when it comes to, for example, the role of our special services or our intelligence services, or indeed, Cabinet minutes freshly laid. That is generally accepted, but there is a grey area that we have to approach very carefully, and the Opposition’s all-or-nothing approach risks establishing a principle that they may come to regret one day. It is very important that there is honesty and honour in this place, but we also have to recognise that there needs to be a filter for claims about the national interest by Governments, and the Opposition motion lacks that filter. What the Opposition would be doing is putting everything out on the table, but there may be issues in that disclosure that are sensitive when it comes to the national interest. It is a reckless idea that risks riding roughshod over decades of convention when it comes to trying to establish that balance.

I make no bones about it: I do not like where we are as a Government on this issue, but we have to judge the situation as it is now, and the filter that could achieve the delicate balance that is needed in this situation is with regard to the Committee of Privileges. Although it is not a perfect answer to this situation, it would serve as a means of filtering information that is perhaps against the national interest.

I will support the amendment this afternoon—one hopes—but I urge the Opposition to think this through very carefully. On the balance of opinion, I think that the Government may lose this, but I suggest that the Opposition act with restraint in the follow-up, because there is a real danger that they could one day regret what they have done, and they should be careful what they wish for.

Photo of David Linden David Linden SNP Whip 3:14 pm, 4th December 2018

I am very grateful for the opportunity to contribute to the debate, Mr Speaker. So far I think I am the newest Member to do so, so this is clearly the first time that I have witnessed a privilege motion coming before the House.

I want to reflect on how we have come to this position. I had to nip out for five or six minutes to attend a Delegated Legislation Committee upstairs this afternoon. Before that Committee began, Government Members were talking about the importance of the Humble Address and how the House must adhere to it. I had been reflecting on the fact that before that, I had been down here, and we find ourselves in the very sorry circumstances of our debating a privilege motion before the House. This is somewhat unprecedented for the vast majority of Members.

Since I entered the House in 2017, time after time, we have seen the Government ride roughshod over this Parliament. This is a Parliament that is meant to be taking back control, but it has been denied money resolutions, it is not adhering to Opposition day votes and it is not adhering to a binding motion of the House calling for the release of this legal advice. It might be uncomfortable for the Government to release that legal advice, but the reality is that the House has voted for that. Members claim regularly that Brexit is an opportunity for us to take back control. Well, I am afraid that Government Members cannot have their cake and eat it. If they are serious about the House taking back control and about adhering to the will of the House that was outlined in November when the original motion was passed, they should vote for the motion in the name of Keir Starmer.

Photo of Andrew Murrison Andrew Murrison Chair, Northern Ireland Affairs Committee 3:16 pm, 4th December 2018

A number of interesting things have come out during this debate about our general procedures and our way of handling matters of the sort we have been discussing—in relation to procedures and privileges, and the nature of the Humble Address and whether it is an appropriate vehicle for advancing Labour’s essentially political aims. I think there is one thing on which we can agree: we need to find a sensible way forward, and it seems to me that the Government’s amendment, although not perfect, is a sensible way through this particular conundrum. The Government are clearly not in principle averse to being as transparent as possible, but they have to safeguard the national interest. My right hon. and learned Friend Mr Clarke made a sensible suggestion, as one would expect, on the use of Privy Councillors to examine this matter. Of course, we have the Privileges Committee, which is up and running already. As a number of right hon. and hon. Members have said, although it is imperfect for the purposes of examining this issue, it is at least there and we could at least support that in determining whether the very serious charges of contempt are reasonable or not.

We have to understand that some serious allegations have been made. Lawyers and legislators understand full well what contempt is. The general public probably think that it means something rather different, and they can be forgiven for that. Contempt is a very harsh term. If it is associated with individuals—I am not suggesting that the Attorney General has necessarily been associated with this, but Ministers have been—and it sticks, that is very serious, even if we have not decided yet what the penalty might be. Of course, when this language was being got up hundreds of years ago, the penalties may have been very severe indeed. Mercifully today, that is not the case, but we have yet to determine what happens if individuals are found to be in contempt. That is left uncertain, but one thing that we can agree on is that this is a very serious allegation to make and the consequences are potentially significant, so we have to get this right. Simply to use an arcane measure such as the Humble Address to make this determination, untrammelled, seems unfair to me.

If we accept that this is a rather archaic vehicle, which is more traditionally used not for legislation or things that might lead to legislation, but for providing gifts to Commonwealth countries, as suggested in “Erskine May”—which I cited in my intervention on my hon. Friend Mr Rees-Mogg— we must also accept the possibility of using a measure that is not ideal for determining this issue, and that, in my view, means the Privileges Committee.

Photo of Jim Cunningham Jim Cunningham Labour, Coventry South

Does the hon. Gentleman agree that what has upset Members on both sides is the fact that the Government several times now have ignored the will of the House? That has antagonised a lot of Members.

Photo of Andrew Murrison Andrew Murrison Chair, Northern Ireland Affairs Committee

The hon. Gentleman is right. The difficulty is that a court of law has available to it a judge who can determine what may be disclosed. The Freedom of Information Act, passed fairly recently, put significant constraints on what may be disclosed and gave powers to the Information Commissioner to use their discretion to permit, or otherwise, information to enter the public domain. We do not have that here.

The Government are mindful not only of potentially setting a precedent, but of the very real possibility that in the advice given—in this case, by the Attorney General—there might be something that is embarrassing to this country internationally or which has security implications. It is irresponsible of the House not to recognise that dilemma, which the Government now face. They are trying to reconcile their duty to be as candid as possible with their duty to safeguard the public interest, and specifically the interests of individuals who might be adversely and directly affected by such a disclosure.

On contempt, it is appropriate to dwell for one moment on the nature of the advice the Attorney General gave to the House yesterday. Nobody in this place could fail to have been impressed by his candour, and it seems wholly inappropriate to associate the word “contempt” with anything he said.

I have grave reservations, as a former Minister in the Ministry of Defence and the Northern Ireland Office, about the impact that this could have on the disclosure of sensitive information. I am worried about that, knowing what I do about the nature of some of the material that the Government would like to keep unto themselves. It has nothing to do with the precedent in 2005 cited today in relation to the Iraq war, where it came two years after the event and dealt with whether the Government had behaved lawfully. That is not a question facing the House today—clearly the Government are behaving lawfully—so the two cannot be compared or contrasted in any way. The Government amendment is a sensible and pragmatic way forward that reconciles the House’s desire for openness and transparency with their legitimate desire to ensure that they put nothing in the public domain that might harm individuals or set a dangerous precedent.

Photo of Robert Courts Robert Courts Conservative, Witney 3:22 pm, 4th December 2018

It is an honour to speak in this important debate and to follow my hon. Friend Dr Murrison, who made some excellent points, all of which I agree with.

It is worth restating the fundamental issue that we are dealing with, which is the clash between Parliament, as a sovereign institution and the highest court in the land, and the right of the Government—any Government—to have access to independent, unvarnished, honest legal advice. I suggest that this is a moment when all Members, on both sides of the House, ought to engage in a period of cool, calm reflection. I would further suggest that the Government’s amendment is the correct way to do that.

Photo of Kevin Foster Kevin Foster Conservative, Torbay

Does my hon. Friend agree that traditionally the Law Officers’ advice can only be released with their consent? The information has now been revealed via a statement—that is self-evident—but there is that convention to bear in mind.

Photo of Robert Courts Robert Courts Conservative, Witney

I am grateful to my hon. Friend, who, as always, makes an excellent contribution. It is normally the case that the client has the ability to waive legal advice if they wish, but, in the case of Government Law Officers, there clearly is another layer to that, and their position is of enormous importance.

The Government’s amendment is the correct, cool, calm way to look at this matter. We are in uncharted territory. The very fact that we are all discussing constitutional and historical precedents today means that we all ought to avail ourselves of more time in which to study those in detail so that the Privileges Committee can consider the real constitutional and historical ramifications of any decision we take.

To be honest, there are a number of questions to which I do not know the answer. Does a Humble Address trump privilege? It would be helpful if somebody were to look into that and consider it. I do not think there is a straightforward answer because I do not think it has ever been tested—I may be wrong. My point is that a period of cool, calm reflection on such points would be of benefit to everybody in the House. Further, where does the line fall in terms of disclosure? Is there a question of redacting elements of advice? If so, where does the line fall?

Many Members will be clear that the line falls when we are talking about national security—that is relatively straightforward perhaps—but what about the national interest? It is not so easy to define, but it is something that we ought to consider carefully before rushing into what are extremely serious matters, not just of party politics—although of course there is a big element of that in this—but of constitutional and legal theory and practice that could have profound consequences for any Government. The Opposition ought to be aware that at some stage—I hope not for a long time—they might be sitting on these Government Benches and should consider the position they would wish to take.

Photo of Andrew Murrison Andrew Murrison Chair, Northern Ireland Affairs Committee

Is my hon. Friend interested, as I am, in the position of the European Commission? A number of right hon. and hon. Members would be interested in the advice given to the European Commission by its legal service. I suspect that it would take a very dim view of any request that might prejudice the position taken by the Commission’s negotiators.

Photo of Robert Courts Robert Courts Conservative, Witney

My hon. Friend makes an excellent point. In the middle of a negotiation, in any discussion that by necessity is high profile and tense, any disclosure of advice that might undermine a negotiator is clearly to be regretted. The Commission will have its legal advice, and we might like to see it, but there is a good reason why we cannot see it and why the Commission should not be able to see ours.

The Government are approaching this matter in a better way than the Opposition’s motion because, as hon. Members have mentioned, they have used an archaic procedure. It was not designed to deal with this situation. [Interruption.] I hear an hon. Member say the whole House is archaic. The whole House is old and historic and flexible, but this procedure has not been used for many years and is not designed for a matter of such sensitivity. It is designed for the production of documents, not legal advice

Photo of Michael Fabricant Michael Fabricant Conservative, Lichfield

What does my hon. Friend think the Director of Public Prosecutions, say, might think if he were asked to give private legal advice that would then be made public?

Photo of Robert Courts Robert Courts Conservative, Witney

That is an excellent point.

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

If and when I was ordered, as Director of Public Prosecutions, to do something by order, I complied.

Photo of Robert Courts Robert Courts Conservative, Witney

I am grateful to the right hon. and learned Gentleman for making that point. Of course, he has considerable experience in those matters, but we are dealing here with a wholly different consideration. He deals with circumstances in which he has been subject to a court order, which brings me precisely to my point. No doubt he will say to me that Parliament is a court—it is the high court of Parliament, the highest court in the land—and I accept the force of that point, but the court before which he has been used to appearing, and the court before which I have been used to appearing at the Bar, has a procedure for dealing with such matters that we do not have here.

A number of Members have already referred to the Freedom of Information Act, which contains exemptions for certain purposes. The right hon. and learned Gentleman will also be aware of public interest immunity applications, which are made when cases are being prosecuted, and a judge can look confidentially at documents and there can be redactions and so forth. None of that applies here, because this procedure is not designed for the purpose for which it is being employed by the Opposition. There simply is no mechanism for this procedure to deal with issues of the gravity of those with which we are dealing now. To its great credit, the Government’s proposal offers a way of looking at that.

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

When I sued Rupert Murdoch for hacking my phone, the court required him, under the Norwich Pharmacal procedures, to provide all the documents. His team legally had to do so, because if they did not, they would be in contempt. That is an exact parallel of what is happening here.

Photo of Robert Courts Robert Courts Conservative, Witney

The hon. Gentleman is right—he makes a good point— but he is referring to something wholly different. He is referring to disclosure, not the waiving of privilege. Any Member—[Interruption.] I am sorry, but they are wholly different concepts. I did not wish to sound patronising to the hon. Gentleman, but, as any lawyer—including those on the Front Benches—will realise, legal privilege is protected. That is totally different from the disclosure of relevant documents, when someone is expected by a court to disclose documents that can assist the other side. For example, the prosecution may be expected to disclose documents that undermine its case or could be reasonably expected to assist the other side’s. There are procedures laid down in law, through practice and regulation, which deal with those circumstances. They do not apply here, because they do not exist, and they do not apply with regard to legal privilege. That is the crucial difference. There is no mechanism to weigh, under the Humble Address procedure, all the subtle points that we have been discussing today.

I will end my brief remarks by making the point that the Attorney General has come down to the House and spent two and a half hours answering questions—

Photo of Robert Courts Robert Courts Conservative, Witney

And he is here today. He answered those questions with absolute honesty and candour, strikingly so, and he made a number of points on which Members will be reflecting. I apologise for summarising those points, but essentially, with regard to the backstop—he will correct me if I am wrong—there is a risk that it may be indefinite. When I asked him about it, he kindly agreed that that was a sound analysis. What he said can be summarised as “That is as far as the legal advice can go.” The disclosure of legal advice will not provide answers; it will only take the House’s consideration so far. After that, it is a political judgment. The political judgment that we must make over the next week is one for us: it is one for us on a political basis. It will not involve an answer being given on the basis of legal advice, whatever standpoint is taken on Brexit or on the Prime Minister’s Brexit deal.

Given that the legal advice will not provide an answer, Members ought not to continue to pursue its disclosure as if it will be a panacea that will provide something that we do not already know. We already have those points. We already understand the impact on what has been negotiated, because we can read it for ourselves in the withdrawal agreement. We understand what the Attorney General thinks, because he has told us. That is as far as legal advice can take us, because over the next week we will not be debating whether what the Government propose to do is legal; we will be debating whether or not it is something that we think the Government should do, as a matter of politics and policy, and that is wholly different.

As the Government have suggested, the Committee of Privileges is the right body to consider this matter. I ask the whole House to support the Government and not the Opposition.

Photo of David Davies David Davies Chair, Welsh Affairs Committee 3:34 pm, 4th December 2018

Publishing the legal advice on the Brexit Bill would be a “dangerous precedent”. Those are not my words, but the words of Mike Russell, MSP, who back in March was the Scottish National party’s Brexit Minister. He was talking about the UK Withdrawal from the European Union (Legal Continuity) (Scotland) Bill. He refused to publish the legal advice because, he said, it would set a “dangerous precedent”.

Photo of David Linden David Linden SNP Whip

Can the hon. Gentleman tell me whether there was a motion in the Scottish Parliament advising Mike Russell that he had to do that?

Photo of David Davies David Davies Chair, Welsh Affairs Committee

I am sorry; I did not quite catch that.

Photo of David Linden David Linden SNP Whip

The hon. Gentleman was clearly too busy trying to plan how long he will speak this afternoon. Can he tell me, for the record, whether a motion was passed in the Scottish Parliament asking Mike Russell to do that?

Photo of David Davies David Davies Chair, Welsh Affairs Committee

I am not an expert on the Scottish Parliament—[Laughter]—but I do know that the Scottish National party Minister was refusing to publish that advice. The hon. Gentleman laughs, but it was on the front page of The Scotsman back in March. Mike Russell refused to publish it because he said it was a dangerous precedent.

The fact of the matter is that Governments across the United Kingdom—Governments of all political parties, the SNP included—know that they must have the right to be able to obtain legal advice without that advice being published. Not just Governments but local authorities—even, dare I say, the House of Commons authorities—can get hold of legal advice, and it is very important that that advice remains confidential. If it does not, the danger is that at best it will become a political football, kicked around by members of all parties using the information to try to buttress the arguments that they wish to present, and at worst it will become a stick which can be used to beat our own Government by the Governments of other nations who may, during complex negotiations, have aims that differ very much from our own.

What the Government have been doing is not defending the information about Brexit, because we already know what the problem is. I am an ardent Brexiteer. I already knew that the problem would be over the backstop. None of the information that has come out since then—none of the information that was leaked, rather unhelpfully, over the weekend—has changed anything. We already knew that the problem was the backstop, and we will no doubt spend more than a few minutes debating that over the next couple of days. If anything, however, I have been reassured by what I have seen—reassured that the Government have at least been behaving honourably, because we have not learned a single thing from the leaks that came out over the weekend that we did not already know about. There has been no smoking gun, and no hidden information.

The principle is what the Government have been defending: the important principle that the information that they access remains confidential. It is not only SNP Members who are being inconsistent; so are Labour Members. They already have a Labour Government in Wales, and that Labour Government are not known for their approach to openness. I can certainly tell Opposition Members that I have submitted numerous freedom of information requests to the Welsh Labour Government that have not been properly dealt with, and I am pretty certain that they are not going to start publishing the information that they receive from their legal officers. Let me also say to my Liberal Democrat friends that there is not just a Labour Government in Cardiff; there is a Liberal Democrat Education Minister. Wonderful though she is, will she start publishing the information that she gets from her law officers when she decides to close down school sixth forms, as has happened in my own constituency? I would like to think that she might, but I doubt it very much, and I doubt whether Tom Brake will be asking her to do so.

What I detect here is a whiff of inconsistency from Members opposite—a whiff of inconsistency from those who for years have accepted that Governments and public authorities have the right to independent, impartial, confidential legal advice, and who know perfectly well that if that advice is going to be offered up in public it will no longer be sought.

This is a not an attempt to get openness; this is yet another attempt to subvert the will of the people, who in a referendum in 2016 clearly voted to leave the EU, and that is why I will be supporting the Government amendment tonight.

Photo of Andrew Bowie Andrew Bowie Conservative, West Aberdeenshire and Kincardine 3:39 pm, 4th December 2018

I must be one of the few non-lawyers to contribute to this debate. However, I am a passionate believer that the conventions of how we as a Government conduct the business of government should be respected, and that these conventions we abide by are there for a reason. We must protect the integrity of the Law Officers in advising the Government. The ramifications of not doing so—the ramifications of publishing legal advice given to a Government—could be hugely damaging. I wonder whether when the other side are in government—as they surely will be one day—they will be as keen as they ask us to be to publish confidential legal advice.

Members are unlucky today, because I was considering withdrawing from this debate, but I did not feel that I could let the comments of Peter Grant pass without remarking on the near-parody of the position SNP Members find themselves in in attaching their names to this motion. Let me take the House back to October 2012 when the then First Minister Alex Salmond was asked by Members of the Scottish Parliament to confirm whether he had sought legal advice over whether Scotland would continue to be a member of the European Union if it was to gain independence in 2014. Notwithstanding the fact that it transpired that thousands of pounds of taxpayers’ money was spent to cover up the fact that no legal advice was actually sought, in answer to a question on this very topic to the BBC’s Andrew Neil, the former First Minister said:

“You know I can't give you the legal advice, or reveal the legal advice of law officers.”

Photo of David Linden David Linden SNP Whip

I hold the hon. Gentleman in very high regard, but he is missing the point here. There is a difference between being questioned by the BBC about legal advice and Parliament having a binding vote, which is why a contempt motion has been brought before the House today.

Photo of Andrew Bowie Andrew Bowie Conservative, West Aberdeenshire and Kincardine

I fully respect the hon. Gentleman as well, as he knows, but I put it back to him that the Scottish Government have through their actions shown themselves to be disrespectful of the Scottish Parliament on binding motions, for example on primary 1 testing or the named persons legislation or fracking, when the Scottish Government abstained, or possibly the offensive behaviour at football Act, all of which they decided were advisory motions that the Government did not have to abide by.

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

I am interested that the hon. Gentleman says that the Scottish Government decided these were advisory motions. Is it not the fact that they were advisory motions under the Standing Orders of the Scottish Parliament, exactly like the advisory motions from the Opposition that this Government have ignored for the last three or four years? Can he give a single instance when a binding motion of the Scottish Parliament has not been complied with by the Scottish Government or indeed Scottish Executive prior to 2007? A single example would do.

Photo of Andrew Bowie Andrew Bowie Conservative, West Aberdeenshire and Kincardine

I am not here to debate these issues; I am here to point out the rank hypocrisy of SNP Members in putting their names to a motion demanding that this Government publish legal advice when they themselves have not done so on countless occasions, including, as my hon. Friend David T. C. Davies pointed out, recently when the Scottish Government’s Brexit Minister refused to publish their own legal advice for their continuity Bill. So I ask SNP Members what has changed: have they changed their minds on this, and do they believe now that it is in the interests of the country and of all Governments at every level—from here at Westminster to Holyrood to Cardiff to Belfast—to publish legal advice in full? If so, that is quite a change from where they were six years ago, and quite a change from where they were even six weeks ago, and it would lead to some interesting questions on the Floor of the Scottish Parliament.

Photo of Michael Fabricant Michael Fabricant Conservative, Lichfield

It seems to me that both the SNP and the former Director of Public Prosecutions are arguing that if Parliament passes a motion, even if it might not be in the public interest, the Government have to comply with that motion. Does it follow that if Parliament were to pass a motion that MI5 or MI6 were to open their files and make them public, the Government should naturally do that?

Photo of Andrew Bowie Andrew Bowie Conservative, West Aberdeenshire and Kincardine

I wholeheartedly agree with the first part of my hon. Friend’s question. I have enough respect for Keir Starmer to hope that the second part of the question would never come to pass. I do not think that even the Labour party today or the SNP would think it in the national interest to ask the Government to open MI5 files—I sincerely hope not anyway.

I must take issue with one comment made by the hon. Member for Glenrothes, when he described this Government as dictatorial, and on this I will finish. This is from a member of the SNP, whose Government have the worst record in publishing FOI requests of any Administration in the UK. He should look closer to home when he starts throwing such stones.

I will conclude now as I know that other Members wish to speak and I am conscious of Mr Speaker’s advice that not all Members are as keen to hear my voice as I am—[Interruption.]—although Stewart Malcolm McDonald seems to be delighted to hear me speaking this afternoon. I put on record my support for the amendment tabled by my right hon. Friend the Leader of the House. Members of this House have a duty to consider the ramifications of their actions and the consequences of what they do today for short-term political gain. Members must consider the full constitutional and historic context of what they ask today.

By standing in the House yesterday and answering questions from all sides, and by making himself available to any colleague with further questions, the Attorney General has proven more than respectful of the House and certainly not in contempt.

Photo of Alex Chalk Alex Chalk Conservative, Cheltenham 3:45 pm, 4th December 2018

It has been said more than once in this debate that this is the high court of Parliament. My constituents, and anyone else watching the debate, might assume that that is some historic nicety or arcane expression, but it is far more important than that. In the context of these proceedings, this court has the ability to achieve the conviction, punishment and disgrace of one of our number. Therefore, it is critical that when it does so, it complies with what we might think are natural rules of fairness and, in the present context, other important statutory limits—most obviously, of course, the European convention on human rights.

Why does that matter? Any court, be it the magistrates court, the Crown Court, the High Court or the Court of Appeal, must ensure that its proceedings are fair. Never is that more important than here in the high court of Parliament. It is no defence to say, “Well, we are seeking to condemn the Government as a whole.” In the court of public opinion, assumptions and judgments will be made about precisely who is being identified. If anyone has any doubt about that, it is made clear in the press that is already circulating on social media who it is who stands to be condemned.

In those circumstances, we need to be careful to ensure that what is taking place is truly fair. If these were criminal proceedings in a normal court—the magistrates court or the Crown Court—the first question would be what precisely is being charged. What is the matter that is being breached? I suggest that there is serious confusion about what was ordered on the last occasion—the proceedings on 13 November. The written motion before the House on that day stated:

“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”.

In the course of those proceedings, an attempt was made—perfectly properly, no doubt—to seek to amend that motion.

The document submitted to the House yesterday states that

“During the debate on that motion Labour’s frontbench made it clear that: ‘the motion requires the publication of the final and full advice’”.

Leaving to one side for a moment precisely what is meant by “final and full”, and leaving aside whether those two adjectives are capable of pulling in different directions, I suggest that some confusion must remain about what exactly happened. There were two hon. Members who sought to clarify what it was that we were being asked to vote on—my hon. Friend Kevin Hollinrake and my hon. Friend Victoria Prentis, who is in her place. It was you, Mr Speaker, who said:

“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.”

In that remark, it seemed to me that you were saying, “Look at the text: it is tolerably plain.” But then my hon. Friend Vicky Ford said:

“I am deeply unclear—are you asking for publication of the final advice”— which is what was being proposed orally—

“or of any legal advice”.—[Official Report, 13 November 2018;
Vol. 649, c. 193-6.]

Although it is not necessarily for me to give evidence, there was a state of some confusion at the end of the proceedings on 13 November about precisely what had been ordered. That matters because the wording that appears in this motion is the latter, not the former. In other words, it is what is amended. That is significant because, if we are applying the European convention, proceedings must be fair under article 6, and article 7 says that the must be no punishment without law. In other words, it must be crystal clear precisely what law is alleged to have been contravened. I want to make the basic point that there was considerable confusion in the House about precisely what had been ordered.

Photo of Gareth Snell Gareth Snell Labour/Co-operative, Stoke-on-Trent Central

I remember being here when that debate happened, and there was initially some confusion, but if such confusion reigned, why did the Government not oppose the motion at that time? It is all well and good to say now that it was unclear, but that was not the argument that was progressed at the time.

Photo of Alex Chalk Alex Chalk Conservative, Cheltenham

Respectfully, that is not right. My hon. Friend the Member for Chelmsford said at the time:

“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?”—[Official Report, 13 November 2018;
Vol. 649, c. 196.]

At that point, Mr Speaker rightly intervened to ask who my hon. Friend was referring to, and so it went on. The matter was not clear. Given the importance of these proceedings, and the potential impact on one or more individuals, is it not right that the House should be crystal clear about what is on the indictment, so to speak?

Photo of Kevan Jones Kevan Jones Labour, North Durham

I am following the hon. Gentleman’s argument, but will he answer the question that my hon. Friend Gareth Snell asked? If the motion was so unclear, why did he not vote against it and why did the Government not oppose it?

Photo of Alex Chalk Alex Chalk Conservative, Cheltenham

Respectfully, that is no answer at all.

Photo of Alex Chalk Alex Chalk Conservative, Cheltenham

It is no answer at all; absolutely not. To take an analogy, if the prosecution were to bring proceedings against the hon. Gentleman for an alleged crime and if the court were satisfied that the proceedings were bad through duplicity or lack of clarity, the court would stay those proceedings because they would be improper proceedings. That is what has happened here. There are real concerns about these matters. In these circumstances, if the high court of Parliament wishes to act in a way that is proportionate and fair, the proper outcome is to refer the matter in accordance with the terms set out in the amendment. Those are my representations, Mr Speaker.

Photo of Michael Tomlinson Michael Tomlinson Conservative, Mid Dorset and North Poole 3:52 pm, 4th December 2018

It is a great pleasure to follow my hon. Friend Alex Chalk and to contribute to this debate. I am especially pleased to see the Attorney General in his seat, because I am going to refer to one or two of his remarks. I was concerned by what I heard from him yesterday. I was concerned that he was less than optimistic. He had a somewhat gloomy outlook on what might happen if the vote does not pass, a week today. I thought he could have been more full-throated and full of voice in defence of the prospects for our country. Further, concern was expressed from where I was sitting in the Chamber as to the length of his replies during the course of the debate yesterday. We have become used to short questions and short answers, but the reason for the length of his replies was that he was being asked for his legal opinion on several questions and he was giving a full and frank response to each and every one.

I have one further concern, which other Members on both sides have also expressed. It is that the motion that we debated on 13 November was not opposed. It seems to me that that was a mistake. It should have been opposed, and arguably, an amendment could or should have been tabled. Had that happened, and had the amendment been voted on, that might have solved the issue. In the event, however, there was no vote and there was no amendment—at least, there was none that was selected. However, the Attorney General is absolutely right not to disclose the legal advice. Where would it leave us if he did? Should he disclose Cabinet minutes? Should he disclose official secrets? Should he disclose any other legally privileged documents just because a Humble Address says that he should do so? My instinct would be to say no. Thankfully, we do not have to rely simply on my instincts.

Chris Bryant referenced “Erskine May”. He referred to the 10th edition from the late 19th century, but the relevant passage is still present in the 17th edition from 1964. As no one has quoted from it yet, and as it is absolutely pertinent, it is important that I do so now. It states:

“Returns may be moved for, either by order or address, relating to any public matter”,

and it goes on qualify what is meant by a “public matter”, stating that the

“papers and correspondence sought from Government Departments should be of a public and official character and not private or confidential”,

and it quotes from an example of confidential papers that should not be disclosed. It further proceeds to say:

“The opinions of the Law Officers of the Crown given for the guidance of Ministers in any question of diplomacy or State policy being included in the class of confidential documents, have generally”—

I will come back to that word—

“been withheld from Parliament.”

We then come to the 1858 Cagliari case referred to by the hon. Member for Rhondda. I wish he were in his place—he really would enjoy this—because he is wrong. He said that that involved an order of Parliament, but it did not. Information was voluntarily disclosed, and I can quote from the Hansard—if anyone cares to reference it later, the passage is from column 178, which is towards the bottom on the right-hand side—for 15 March 1858:

“We have given directions that all the papers connected with the management of the Cagliari case by our predecessors should be prepared and laid with all reasonable despatch before Parliament. They are more voluminous than the House perhaps imagines;
but no unnecessary delay will take place in their production. It is also my duty to state that, after great deliberation, while perfectly aware of the inconvenience which under ordinary circumstances would accrue by submitting to Parliament the opinions of the law officers of the Crown”—

I am delighted to see the hon. Gentleman return to the Chamber; he may enjoy this exchange—

“we have arrived at the conclusion that in the peculiar and exceptional circumstances of the present case we ought to lay the opinions of the law officers of the Crown before the House.”—[Official Report, 15 March 1858;
Vol. 149, c. 178.]

The information was voluntarily disclosed, and that is the key and distinguishing feature of the 1858 Cagliari case.

However—the Attorney General referred to this section in his response to my hon. Friend Mr Rees-Mogg—the 17th edition of “Erskine May” states:

“However ample the power of each House to enforce the production of powers may be, a sufficient cause must be shown for the exercise of that power;
and if considerations of public policy can be urged against a motion for the papers, it is either withdrawn, or otherwise dealt with according to the judgment of the House.”

Therefore, despite having been concerned in three respects by what the Attorney General said yesterday, I can say that he was precisely right to have stated that a public policy test could and should be applied in this case. The passage from “Erskine May” is crystal clear. If the hon. Member for Rhondda were in his place, he would say, “That is the 17th edition, not the 24th. Why has it fallen out of use?” Well, Humble Addresses had fallen out of use by the time of the most recent edition of “Erskine May” but that has changed.

I have no doubt that there will be fuller section in the next edition, but that does not mean that it is irrelevant or that the law has been superseded; it means that the Humble Address had fallen out of practice up to and until these extraordinary times following the general election of 2017. With you in the Chair, Mr Speaker, I am sure that there will be a footnote or extended passage on the increase in the usage of the Humble Address. That is not to say that the advice and guidance of “Erskine May,” whether from the 19th century or from the 17th edition of 1964, is otiose, useless, worthless or has been superseded; it has not. It is still relevant, and it is relevant to the debate today.

In any event, the Attorney General gave ample legal advice yesterday. He was crystal clear and he was frank on his concerns about the backstop, and he was absolutely right to say it is now no longer a question of legal precedent. It is now no longer a legal question; it is a political question for each Member of the House to debate and to vote on a week today.

Photo of Chris Philp Chris Philp Conservative, Croydon South 4:00 pm, 4th December 2018

At the heart of our debate today is a question of Parliament’s powers and prerogatives. Keir Starmer laid out a simple and clear case at the beginning of the debate. He said that the House passed a motion on 13 November compelling the Government to do something and that the Government have not done it. He said that it proceeds simply from those two facts that Ministers are therefore in contempt. I say that that analysis is too simplistic and is lacking in nuance, and that it presupposes that Parliament’s power, generally, is unqualified and unconstrained.

Indeed, two Members have made that point explicitly in this debate. My right hon. and learned Friend Mr Grieve described Parliament’s power as untrammelled, and Chris Bryant, who is at the Bar of the House, also suggested that Parliament’s power is entirely without limitation. Without wishing to open up an enormous debate on those two points, I would suggest that those two assertions cannot be taken at face value as self-evidently the case.

For example, the Human Rights Act 1998 and the European convention on human rights impose limitations on Acts of Parliament. Any Act of Parliament we pass must conform with human rights legislation and with the European convention on human rights, so there are limitations on what Parliament may do.

When I asked the hon. Member for Rhondda whether Parliament really has the right, for example, to trample on somebody’s personal liberty, he replied that Members of Parliament could be relied upon not to trample on people’s liberty in that way. Yet when one reads the great tracts on personal liberty, and particularly John Stuart Mill’s essay “On Liberty,” one sees that Mill urges that we should seek to protect individuals from what he describes as the “tyranny of the majority.” We need more than simply a reliance on good will to protect, for example, individual liberty.

My hon. Friend Sir Bernard Jenkin, who is not in his place, also referred to the limitations on parliamentary authority by highlighting the distinction in the powers exercised by the Executive versus those exercised by Parliament as a legislature. There are all kinds of areas where the Government act with prerogative power and Parliament does not seek to usurp that power by essentially becoming the Government or becoming the Executive.

There are all kinds of areas where the limitations of parliamentary authority can, at the very least, properly be debated. The assertion that parliamentary authority is unlimited is not something one can take immediately at face value, attractive though it is to us as parliamentarians.

Of course, in no way do I wish to fetter Parliament’s ability to make its will felt. For example, our Select Committee colleagues were entirely within their rights to summon Mark Zuckerberg, and it is deplorable that the chief executive of such an influential company contemptuously refused to appear before a parliamentary Select Committee. I urge the Chairman of that Select Committee to use his good offices to compel Mark Zuckerberg to appear.

A question has repeatedly been posed by Opposition Members: “Why didn’t the Government oppose this motion when it was first put on 13 November?” I would suggest that the reason is that, in order to properly debate what parts of the legal advice might or might not be disclosed, the Government would have had to disclose the legal advice. We would have had to examine what the legal advice says before deciding what could or could not be disclosed. The very act of debating it would cause its disclosure, which is why when matters of disclosure arise in a court of law, they are decided by a judge in chambers, not in open court. The judge then decides what can be disclosed and what cannot be disclosed. No equivalent provision existed when the House debated this matter on 13 November; it would have been a case of disclosing everything and debating it openly, or disclosing nothing.

There is clearly a tension between Parliament’s desire to get disclosure and the desire of the Executive to protect the public interest. The question is: how do we balance those two competing considerations? A number of right hon. and hon. Members today have suggested that there are various appropriate forums in which that might occur, one of which, evidently, is the Privileges Committee or indeed some other Committee of the House. Such a Committee might, behind closed doors, look at the legal advice—

Photo of Kevan Jones Kevan Jones Labour, North Durham

The hon. Gentleman is talking complete nonsense with the idea that in order to vote against the motion on 13 November the Government would have had to disclose the evidence in that debate. Is it not a fact that the reason why they did not oppose that vote is that they would have lost it?

Photo of Chris Philp Chris Philp Conservative, Croydon South

The hon. Gentleman is engaging in speculation. The fact is that when matters of public disclosure are considered in other environments, for example, a court of law, an independent person, in this case a judge, in chambers, in private, decides what might publicly—

Photo of Chris Philp Chris Philp Conservative, Croydon South

I must conclude, because Mr Speaker wishes to move on with the business. That independent person decides what gets publicly disclosed. No such device or mechanism was available to this House on 13 November and it strikes me that the Privileges Committee is a suitable forum in which the balance between the desire for disclosure and the public interest can be struck, and it is appropriate that that balance is struck in private. I will therefore be supporting the amendment. I know that you wish to move on, Mr Speaker, so I will conclude my remarks there.

Photo of Kevin Foster Kevin Foster Conservative, Torbay 4:06 pm, 4th December 2018

It is pleasure to be called in this debate, following so many learned, right hon. and hon. Members. I enjoyed some of the contributions from the Scottish National party Members on the idea of Parliament being supreme, given that they will remember the famous case of MacCormick v. Lord Advocate, where it was said that complete parliamentary supremacy is an English concept and not necessarily one of Scots law. So it is great to see their conversion now that they have come here.

I shall turn now to the matter of substance. I sat through a lot of that debate on 13 November and I noted the numerous points that were picked up about how the motion passed then had various queries raised about it.

Photo of Kevin Foster Kevin Foster Conservative, Torbay

I am always happy to give way to the leader of the SNP here.

Photo of Ian Blackford Ian Blackford SNP Westminster Leader

I wish to assist the hon. Gentleman by giving him the exact quote, which is that parliamentary sovereignty is a purely English concept that

“has no counterpart in Scottish constitutional” history. Of course this House endorsed a motion, pushed by the SNP some months ago, that sovereignty does rest with the people of Scotland, through the Claim of Right. I trust that if this Government seek to try to take us out of the European Union and the only way we can protect our interest is by becoming an independent nation, they will endorse our right to call a referendum.

Photo of Kevin Foster Kevin Foster Conservative, Torbay

I very much thank the right hon. Gentleman for that intervention and for, yet again, reminding people in Scotland that the SNP’s focus is indyref2 and separation of this Union. It is always ironic to hear SNP Members calling for an end to borders in Europe, given that they want borders on this island. I am genuinely grateful for that intervention and I know that my Scottish colleagues will be even more grateful for it, as they will be able to put it in their next leaflet.

I turn back to what we are discussing today, which is the motion on contempt. Like previous speakers, I find it interesting that, even before the Attorney General had managed to sit down, some people had concluded that he was already in contempt. The Opposition do not strike me as short of the ability to find senior and experienced lawyers to analyse the withdrawal agreement, its implications and what it might mean for the future. To see that, we have only to look at their Front Bench, where we see a very eminent Queen’s counsel. So it is bizarre that they are, in effect, arguing that they are not able to make a reasoned judgment on this without the legal advice. We are not talking about the legal position of the Government, as it is right that this House should always be able to demand that the Government set out the legal basis of their actions in this Parliament. We are a country defined by the rule of law, which is why it is right that legal positions can be requested and demanded. The Opposition, however, are saying that we need the Government’s lawyer to tell us what the legal implications are and what the legal advice is on this area. For me, this is not an area in which they are going to be short.

My hon. Friends the Members for Cheltenham (Alex Chalk) and for Mid Dorset and North Poole (Michael Tomlinson) made excellent speeches and made clear the key points on what the motion is about. I particularly enjoyed the speech from my hon. Friend Robert Courts, who made the distinction between disclosure, which is a strong point of criminal law—indeed, it is important in civil cases, too, to make sure that evidence is not concealed—and privilege around legal advice.

When I used to give legal advice in the run-up to cases in places such as Solihull magistrates court, there was no forum in which to ask what my advice was. Clearly, I could not conceal evidence, and I could not run a line of argument in court that I knew to be untrue. Many Members, including the Attorney General, will have heard the adage about what happens if a client tells a lawyer they are guilty. That means that the lawyer cannot run a defence. They can test the prosecution’s case, but they cannot run a defence in court or mislead the court. A lawyer cannot be required, though, to overturn their legal privilege and put their legal advice out there. To be blunt, it is quite a worrying trend that Government Members want to attack the right to legal privilege.

Photo of Sylvia Hermon Sylvia Hermon Independent, North Down

Will the hon. Gentleman deal with the assertion, accusation, suggestion or allegation made by the Democratic Unionist party that if the Government are not prepared to publish the full legal advice given by the Attorney General, that means that somehow they have something to hide? That has to be addressed before we vote.

Photo of Kevin Foster Kevin Foster Conservative, Torbay

To be blunt, anyone who listened to the Attorney General’s statement yesterday would have been hard pressed to think that he had something to hide. He was very open about some of the challenges with the withdrawal agreement, particularly in respect of issues related to the Northern Ireland backstop and what it means, which will be of immense concern to the hon. Lady. There was not one word on which he was holding back on what he thought about the legal position on the backstop. I do not believe for one minute that he, as a very senior barrister, would have come to the Chamber and given a legal position that in any way conflicted with the legal advice that he had given to the Cabinet and the Government. We need to be very clear about that, because I do not believe there is anything to hide. The statement was not on why legally it might be a good idea to sign this treaty; it was on the legal position.

No one in the House is arguing that Parliament does not have the legal power to sign and ratify the treaty that the Government have negotiated, if it wishes to do so. The debate is fundamentally about whether or not we think it is a good idea to do so. There are obviously sharply differing views about whether it is a good idea, not only on either side of the Chamber but, to be blunt, among Members on the Government Benches, but nobody is arguing that there is not the legal power to do that, based on our constitution.

To turn to the intervention from Lady Hermon. I do not think that anything was hidden. The Attorney General was clear about the legal position and the backstop and he was clear in response to colleagues’ queries. I do not believe for one minute that any word of what he said would have conflicted with the legal advice that he had given privately. That is the difference: position is different from advice. Evidence is different from a lawyer commenting on the evidence to their client and giving them advice about what it might mean. If we reach the point at which we accept the idea that the Attorney’s advice will end up out in public, we will see a trend towards things not being written down but expressed verbally instead, and of there not being proper records that can be accessed at a later date when the advice might become relevant. We would be moving away from the idea that some of the key principles of law, including legal privilege, operate in the same way in Government as they operate outside.

Let me turn to the motion. I find it interesting that there has been a push to debate this today. I accept that—it is all part of the procedures of the House, all perfectly properly followed—but it would make much more sense for the Privileges Committee to carry out a proper investigation, rather than the House deciding whether someone is guilty of contempt in effect via a jury made up of their political opponents, and following a party political knockabout in the Chamber.

That is why, for me, the amendment has strength. This is not about saying, “Let us vote no, and forget about it”. This is about asking for the proper process of the House to be gone through. For those following our proceedings, the Privileges Committee is chaired by an Opposition Member. It is not a Committee that will purely follow the will of the Government, and that, for me, is where the strength of the amendment lies. This is about having a proper debate about this clash of principles, this clash of legal privilege, the position of the law officers and the position of this House to pass returns and to make a request for documents through the means of a Humble Address. I accept that nobody in this House would think that it was a sensible idea to have a Humble Address for MI5 documentation or for sensitive diplomatic papers, and I would not seek to advance that. However, in this instance, those things are coming together at a time when, actually, if anyone wants a legal opinion on the withdrawal agreement, they will not be short of suggestions coming into their email inbox from various eminent lawyers across the country.

Photo of Kevin Foster Kevin Foster Conservative, Torbay

I am about to conclude because I am conscious that there are one or two others who are waiting to speak. [Interruption.] I hear a request for more from SNP Members, but sadly, I will have to disappoint them.

For me, the amendment is the right path to go down as it allows proper consideration by a Committee and a decision on whether the matter has been properly and fully dealt with, not a short-term debate 24 hours after a statement on the Floor of the House. It was particularly interesting to hear the Father of the House, my right hon. and learned Friend Mr Clarke, giving us some ideas about how matters such as this could be handled in future. With that, I will conclude my remarks, and say that the amendment is the right way to go. There have been some quite interesting arguments this afternoon, but I hope that Members will reflect on what precedent they might set for a future Government of their own colour.

Photo of Simon Hoare Simon Hoare Conservative, North Dorset 4:16 pm, 4th December 2018

Let us be clear that contempt is not disobeying an order. In fact, a tweet put out on the UK House of Commons Twitter account defines contempt as:

“Any act or omission which obstructs the House of Commons in carrying out its duties”.

That can be seen as a contempt of Parliament. That is an incredibly high bar and I do not believe that Keir Starmer has made his case before the House this afternoon.

Mr Speaker, you and I love this place, but there is nothing more humorous than the synthetic confection of outrage, umbrage and humbug—that sounds like a rather dodgy firm of solicitors—that comes from this place when it thinks that its honour has been offended. It draws up its skirts like a slightly shocked maiden aunt at a risqué joke. The Opposition have, I am afraid, turned this into a parlour game—a parlour game called parliamentary politicking or parliamentary process. Let me pray in aid one or two thoughts that substantiate that viewpoint. So great is the umbrage of the Opposition that they ran out of speakers about 50 minutes ago. It strikes me that they are not exactly as hot under the collar as the right hon. and learned Member for Holborn and St Pancras tried to portray them as being.

Yesterday, when the Attorney General invited any question from any Member on any topic, about 75% of the stuff was to do with process and nothing to do with questions. If the right hon. and learned Gentleman was serious in his, I have to say, entirely synthetic sincerity about being more in sorrow than in anger, why was he trailing his letter around last Thursday and having it signed and sealed by close of play last Thursday? I thought that a former Director of Public Prosecutions would believe in honesty in the courts and in listening to somebody give their case before deciding what the next step would be, but he went around this place like a political costermonger selling his wares.

Photo of Simon Hoare Simon Hoare Conservative, North Dorset

I will not. [Hon. Members: “Oh!”] Oh, go on then.

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

The hon. Gentleman is talking nonsense; that letter was not signed on Thursday.

Photo of Simon Hoare Simon Hoare Conservative, North Dorset

Well, the right hon. and learned Gentleman was tarting his letter around this place on Thursday, trying to get signatures in order to instigate contempt proceedings. He may not have put it in the envelope and got the stamp out, but he had the letter drafted. The Attorney-General had only been on his feet for about 20 minutes when the letter was handed in to say, “Let us have a contempt motion.” I have heard of a judge trying to come to the final judgment, but not when the prosecution or the defence are still trying to make their case. It begs the question what sort of a lawyer the right hon. and learned Member for Holborn and St Pancras made.

I have also heard the right hon. and learned Gentleman and Joanna Cherry make an incredibly powerful case in support of privilege. They did so during the course of the Investigatory Powers Bill, when the right hon. and learned Gentleman and I both sat on the Bill Committee, and he was absolutely right to talk about the sanctity of privilege. In that case, it was with respect to the lawyer-client relationship and the relationship between a journalist and their source. But it now seems that he wants to cherry-pick which bits of privilege are important.

Photo of Simon Hoare Simon Hoare Conservative, North Dorset

I will not because I am very conscious of time.

This is a parlour game. We are not going to play it. We are going to support the Government’s amendment and we are then going to move on to do what this country is expecting us to do—that is, to debate the exit of this country from the European Union with the sobriety and seriousness that the issue demands.

Photo of Keir Starmer Keir Starmer Shadow Secretary of State for Exiting the European Union 4:22 pm, 4th December 2018

I have listened carefully to the debate, in which some very good points and some very bad points have been made. The Labour party is well aware of the two principles laid out by the Father of the House. The first is that only in exceptional circumstances will privilege be overridden, and the second is that orders of this House should be complied with; 13 November was about the first principle and the Government did not oppose the order, and today is about the second.

In drafting this motion, we have been careful to refer to Ministers rather than individuals to reflect some of the points that have been made in this debate. We have also been careful to ask for the remedy, which is that the order is complied with before we think of anything else, in fairness to the Government. The Father of the House said that there surely must be some way that this can be agreed and the order can be complied with, and lots of Members indicated that as well. In the three weeks since the debate about the first principle to today, the Government have put no suggestion to me of any sort of mechanism to enable them to comply with this order, and the House will make of that what it will. For that reason, I must push the motion to a vote.

Question put, That the amendment be made.

The House divided:

Ayes 307, Noes 311.

Division number 272 Privilege (Withdrawal Agreement: Legal Advice)

A majority of MPs voted not to refer to the Committee of Privileges the question of whether the Government’s response fulfils the motion passed on 13 November 2018

Aye: 305 MPs

No: 311 MPs

Ayes: A-Z by last name

Tellers

Nos: A-Z by last name

Tellers

Question accordingly negatived.

Main Question put.

The House divided:

Ayes 311, Noes 293.

Division number 273 Privilege (Withdrawal Agreement: Legal Advice)

A majority of MPs voted to find Ministers in contempt for their failure to publish the final and full legal advice concerning the EU Withdrawal Agreement, and order its immediate publication

Aye: 311 MPs

No: 292 MPs

Ayes: A-Z by last name

Tellers

Nos: A-Z by last name

Tellers

Question accordingly agreed to.

Resolved,

That this House finds Ministers in contempt for their failure to comply with the requirements of the motion for return passed on 13 November 2018, to publish the final and full legal advice provided by the Attorney General to the Cabinet concerning the EU Withdrawal Agreement and the framework for the future relationship, and orders its immediate publication.

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

On a point of order, Mr Speaker. The House has now spoken, and this is of huge constitutional and political significance. It is, I think, unprecedented for the House to find Ministers in contempt. The motion makes it clear that the Government must now publish the Attorney General’s final legal advice in full. I hope that they will now confirm and comply with that order, but if they fail to respond, what steps can I and others take to ensure that they do comply with the motion and before the votes that we shall have next Tuesday?

Photo of Andrea Leadsom Andrea Leadsom Lord President of the Council and Leader of the House of Commons

Further to that point of order, Mr Speaker. We have tested the opinion of the House twice on this very serious subject. We have listened carefully, and in the light of the expressed will of the House, we will publish the final and full advice provided by the Attorney General to the Cabinet; but, recognising the serious constitutional issues that this raises, I have referred the matter to the Committee of Privileges so that it can consider the implications of the Humble Address.

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 am grateful to Keir Starmer for his point of order, and to the Leader of the House for her response. [Interruption.] Some Members are saying, from a sedentary position, “When?” I had intended to say that I expected Ministers to comply with the verdict of the House. If the Leader of the House wants to offer a further and better particular on that point now, or immediately after the point of order from the right hon. and learned Gentleman, she can do so, but if not, I would certainly expect to have fuller information on that matter provided to the House very soon.

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

Further to that point of order, Mr Speaker. Will you please advise me what steps we can take to ensure that the process that has just been outlined is completed by next Tuesday, when we vote?

Photo of Andrea Leadsom Andrea Leadsom Lord President of the Council and Leader of the House of Commons

Further to that point of order, Mr Speaker. The Government will respond tomorrow.