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Privilege (Withdrawal Agreement: Legal Advice)

Part of the debate – in the House of Commons at 4:06 pm on 4th December 2018.

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

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.