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Privilege (Withdrawal Agreement: Legal Advice)

Part of the debate – in the House of Commons at 4:00 pm on 4th December 2018.

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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—