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Privilege (Withdrawal Agreement: Legal Advice)

Part of the debate – in the House of Commons at 2:56 pm on 4th December 2018.

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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.