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Privilege (Withdrawal Agreement: Legal Advice)

Part of the debate – in the House of Commons at 1:54 pm on 4th December 2018.

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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 Indeed, I continue to be of the view that the Law Officers’ advice should not be published because it undermines the ability to provide proper confidential advice to Government.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.