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As the hon. and learned Lady knows, the Supreme Court gave judgment on this issue yesterday, and that judgment sets out the definitive and final legal position on the advice given to Her Majesty on the Prorogation of Parliament. The Government’s legal view during the case was set out and argued fully before the Supreme Court. The hearing was streamed live and the Government’s written case was, and is, available on the Supreme Court website.
I took a close interest in the case—[Interruption]—and I oversaw the Government’s team of counsel. I have to say that if every time I lost a case I was called upon to resign, I would probably never have had a practice.
The Government accept the judgment and accept that they lost the case. At all times, the Government acted in good faith and in the belief that their approach was both lawful and constitutional. These are complex matters, on which senior and distinguished lawyers will disagree. The divisional court, led by the Lord Chief Justice, as well as Lord Doherty in the outer house of Scotland, agreed with the Government’s position, but we were disappointed that, in the end, the Supreme Court took a different view. Of course, we respect its judgment.
Given the Supreme Court’s judgment, in legal terms the matter is settled, and, as the hon. and learned Lady will know, I am bound by the long-standing convention that the views of the Law Officers are not disclosed outside the Government without their consent. However, I will consider over the coming days whether the public interest might require a greater disclosure of the advice given to the Government on the subject. I am unable to give an undertaking or a promise to the hon. and learned Lady at this point, but the matter is under consideration.
I too took a close interest in the case. Let me start by assuring the Attorney General that I am not going to call for his resignation—yet.
Yesterday was a very special day for Scots law and the Scottish legal tradition going back to the declaration of Arbroath that the Government are not above the law. Following in the footsteps of Scotland’s Supreme Court, the UK Supreme Court asserted the rule of law and the separation of powers, and it restored democracy. It is worth emphasising that the decision was unanimous, as was that of Scotland’s Supreme Court, chaired by Scotland’s most senior judge, the Lord President of the Court of Session. Both Courts unanimously found that the decision to advise Her Majesty to prorogue Parliament was unlawful, void and of no effect. However, the question I am interested in is how it came to pass that that was ever allowed to happen.
Redacted documents lodged with the Scottish Court confirmed the suspicion that this was a plan cooked up in No. 10 by the Prime Minister and his special advisers. I want to ask about documents that mysteriously found their way into the public domain yesterday afternoon, when an unredacted version of one of those lodged with the Scottish Court found its way to Sky News and revealed that the Attorney General had said that the advice to prorogue was lawful and that anyone who said otherwise was doing so for political reasons. Knowing the Attorney General, I am sure that his advice was considerably more detailed and nuanced than the three sentences that appear in the unredacted document. Can he tell us whether a legal opinion was made available to the Prime Minister or the Cabinet?
Amber Rudd has said that when she was in the Cabinet, Cabinet Ministers requested to see the advice but it was not handed over. Is that correct? Can the Attorney General tell us what was given to the Prime Minister, if not to the Cabinet? Many of us believe that the Attorney General is being offered up as a fall guy for the Prime Minister’s botched plans. Does he therefore agree that releasing the advice in its entirety will help him avoid being the scapegoat for a plan dreamed up by the Prime Minister and his advisers? Will he give the undertaking, which he hinted he might give, today?
I am extremely grateful to the hon. and learned Lady for her kindness and solicitousness for my welfare. I am particularly attracted by the tempting prospect that she dangles before me, but she will know that I am obliged by the convention to say that I am not permitted to disclose the advice that I may or may not have given to the Government. But I repeat: the matter is under consideration.
Does my right hon. and learned Friend agree that if, in the future, we were unfortunate enough to have a Corbynista Labour Government—[Interruption.] That is obviously not thought to be a very likely prospect, but if that misfortune were to occur, if that Government were to decide to suspend the House for a long period because there was a parliamentary majority against their principal policy, and if that Government also decided that constitutional law was not challenged by that, and challenged the right of the courts to overrule it, the Conservative party would be likely to get very excited. Can my right hon. and learned Friend reassure me that this Supreme Court judgment has settled that matter finally, that this kind of action can never be taken by any future Government and that parliamentary sovereignty therefore remains intact?
I certainly can say to my right hon. and learned Friend that it is important when we reflect on judgments that may be seen to go against the short-term interests of any particular Government that we remember that they stand as precedents and principles for the future. I invite all my hon. Friends to reflect on precisely the situation that my right hon. and learned Friend has set out before the House, which is that this would stand for Governments of a colour of which those on my side would not approve and for their actions too. It is important that when we comment on the decisions of judges we remember that those judges are both impartial and independent, and they are entitled to reach the view that they have reached. We are fortunate in this House to have one of the finest judiciaries, I believe, in the world, and it is important to remember that the principles they set apply to both sides, as my right hon. and learned Friend has said.
I congratulate Joanna Cherry for securing the urgent question and for her work on this matter. Yesterday’s decision of the Supreme Court—I give credit to all those who brought the cases—was the most damning judicial indictment of a Government in modern times: that the decision to advise Her Majesty the Queen to prorogue Parliament was unlawful.
This Government stand in shame, tendering illegal advice to our monarch and not even able to uphold that most basic and important of principles: abiding by the rule of law. What we know from yesterday’s leaked document is that the Attorney General said that his advice on the question of the law was that this was
“lawful and within the constitution”,
and that any accusations of unlawfulness were “motivated by political considerations”. If that is in any way accurate as to his full advice, he was wrong on both counts. His “close interest” simply was not enough.
I will ask the Attorney General a number of questions. Can he confirm why the Government gave no witness statement to the Court? Indeed, the Court was left in a position where it said:
“No justification for taking action with such an extreme effect has been put before the court”.
Why not? The Attorney General talks about respecting the decision of the judges, but the Chancellor of the Duchy of Lancaster was on the radio this morning saying that he disagrees with the decision. He should tell us which parts of the judgment the Government disagree with. May I give the Attorney General a simple piece of advice for his considerations about the publication of this advice over the next few days—a simple suggestion? Just publish it and make it open to Parliament and the public.
On this Attorney General’s watch, the Government have been found in contempt of Parliament. Now they have been found in contempt of the law. Does he not accept that he does not have a shred of credibility left?
I do not know whether in the hon. Gentleman’s practice at the Bar he felt that just because he had given advice that might not have been upheld by a court he had no credibility. That is an absurd and ridiculous proposition. Furthermore, it was advice that was agreed with by the first instance court in Scotland and by the Lord Chief Justice of England. Is the hon. Gentleman calling for his resignation as well? Is he calling for the resignation of the Master of the Rolls? Is he calling for the resignation of the President of the Queen’s bench division? Is he calling for the resignation of Lord Doherty? [Interruption.]
Order. If the Attorney General could resume his seat momentarily, I should be deeply obliged to him. The Attorney General has a distinctive and resonant baritone, which is well known throughout the House, but it is a challenge even for him to be fully heard if there is constant catcalling. There will be ample opportunity for colleagues to question and probe the Attorney General—of that they may be assured—but I wish myself to listen to his mellifluous tones.
I will say one thing for the Scottish National party and Joanna Cherry if I may. Whereas in the hon. Gentleman’s case, no shameless piece of cynical opportunism is left on the floor, the hon. and learned Lady is a lawyer and a Queen’s counsel, and she knows that it is the most puerile and infantile of criticisms to say about a lawyer whose advice has been upheld by courts right the way up to the Supreme Court that somehow or other he should be held culpable for that advice. The fact of the matter is that this advice was sound advice at the time. The court of last resort ultimately disagreed with it, but in doing so it made new law, as it was entirely entitled to do.
I am extremely mindful of the difficult task that my right hon. and learned Friend has as Attorney General in providing advice to Government, and I am sorry if his legal advice has been partially leaked, because he is entitled to give advice in private. Without that, he cannot do his work. I would also say that for him to get the law wrong in an area of difficulty is not necessarily something to be held to his discredit, but he may agree with me that one of the issues in this matter was one not just law but propriety, and the propriety went to the unconstitutional or constitutional nature of the act of Prorogation itself, in view of the motivation of the Government for doing it. In those circumstances, I was struck by the fact that in the leaked document his opinion is referred to as believing it is constitutional, when I had understood from comments he made as far back, I think, as July, when Prorogation was first being mooted in order to achieve a no-deal Brexit on
I know that my right hon. and learned Friend will understand that it is not right for the Attorney General or any Cabinet Minister to comment on leaks of matters that occurred within Cabinet, be they accurate or inaccurate—it would set a wholly undesirable precedent—but let me say this. It was being mooted some weeks ago that Parliament might be prorogued from the beginning of September or even earlier until
Does the Attorney General believe that yesterday’s judgment of the Supreme Court represented a constitutional coup, and if he does not share that view, could he explain why he thinks it is wrong?
I do not think that it was a constitutional coup. I know the right hon. Gentleman will know that I do not, and I do not believe that anybody does. These things can be said in the heat of rhetorical and poetical licence, but this was a judgment of the Supreme Court of a kind that was clear and definitive. It often happens that Governments lose cases. We did not agree with it, because of course we argued against it, but we accept the ruling of the Supreme Court, and we are proud that we have a country that is capable of giving independent judgments of this kind.
I welcome the Attorney General’s very clear statement of the importance that he and, I am sure, the whole Government attach to the impartiality and independence of the judiciary. Let me also say to him that many lawyers might well have given exactly the same advice as he did on the weight of precedent. Does he accept, however, that it is most important that the convention that the advice that the Attorney General gives to Government is not leaked and is not disclosed should not be lightly set aside? Would he also perhaps think it rather regrettable that such an important matter, which warrants very careful and calm and considered language and discussion, should be used for the purpose of rather unworthy ad hominem attacks and party political knockabout when so much is at stake?
I am grateful for my hon. Friend’s question. I do of course agree with him that legal advice, and particularly the role of the Attorney General, is always difficult, because one polices and intersects a very difficult line between giving advice of an impartial, and politically impartial, character, and being a political Minister, but I hope that I have endeavoured to do that with all the conscience and candour at my disposal—and when I say to the House, as I do today, “I accept that we lost; we got it wrong on the judgment of the Supreme Court; but it was a respectable view on the law to take, and that view was taken by four of the seven judges who had opined up to the point of the Supreme Court.”
The Supreme Court has made new law. Let us be absolutely clear: from now on, the prerogative power of Her Majesty, advised by the Prime Minister, can be the subject—the justiciable subject—of the court’s control, and that was a judgment that the Supreme Court was perfectly entitled to make. What the implications are for the future of our constitutional arrangements will have to be reflected upon in the coming months and years, but it is never wise to reflect upon a court case and its implications in the immediate aftermath of that case. It will have to be done carefully and deliberately, and this House will have to decide, ultimately, whether these matters and these powers are for this House to regulate and control, or whether they are for the judiciary; but, at the moment, the Supreme Court has spoken, and that is the law.
The Attorney General’s acceptance at that point that the Government got it wrong in this case is very welcome. Will he now advise the Prime Minister and the Government to accept and agree with the content of the Supreme Court’s judgment—not just the obligation to abide by its conclusion—and, in particular, to accept that it is wrong for this Government, or any Government, to seek to prorogue Parliament for five weeks, rather than just for a few days, without giving any reason, let alone, in the words of the Supreme Court, a good reason, to the public, to Parliament, or to the courts?
The judgment is clear. The Government are assessing its short-term and long-term implications now, but the right hon. Lady can be quite certain that they will abide by its ruling, and by the content and implications of its judgment.
What limits are there on the powers of the Supreme Court to intervene in how Parliament conducts its business, and what powers are there for it to intervene over the highly political matter of when and how we leave the European Union?
I think I understood my right hon. Friend’s question correctly. The Court in this case was giving its judgment on a particular issue—whether or not Prorogation of this length could be the subject of judicial control and, if so, what was the correct test to apply to that judicial control. It chose to delineate a test that suggests that from now on, a Prorogation of any length must be reasonably justified. The Court included in its analysis the fact that there was before the House, and before the country now, a particularly acute constitutional controversy, which made it even more important that the House should sit. I have to say, and I think there is nothing wrong in venturing to express respectful disagreement, that what that will mean in future is that the Court will be obliged to assess whether or not a particular political controversy is sufficiently serious, excites sufficiently heated controversy, as to warrant the House sitting for any particular length of time; but be that as it may, that is the test that the Court has set, and that is the test that now must be applied.
What message does the Attorney-General have for his colleagues in government who have been smearing and undermining the Supreme Court judges? Some of this is not done in the heat of the moment: we have been hearing from one journalist that he has been sent copies of articles about Iranian judges, comparing Supreme Court judges to them. Is he going to give an unequivocal message to his colleagues that they should resign if they undermine the Supreme Court’s independence?
The judges do not exist immune from criticism. There is nothing wrong at all in any member of the public, be it a Member of Parliament or otherwise, criticising a court judgment, but what is wrong is that motives of an improper kind should be imputed to any judge in this country. We are defenders of the entire democratic constitution and we must be sure, in everything we say—I agree with the hon. Lady if this is what she means—that we do not impute improper motives. With the judgments, we can be robustly critical; with the motives, we cannot.
Is it not important, even in the course of argument on matters as important as these, to remember why we have the constitutional conventions that we do, and that Governments are entitled, as any other organisation or individual is, to receive legal advice in private? If they do not, and if those who ask for it to be published get their way, that legal advice will become increasingly guarded, increasingly equivocal and progressively less useful to Government in ministerial decision making; and the consequence of that will be less good legal advice and less good ministerial decision making.
My right hon. and learned Friend has great experience, as does my right hon. and learned Friend Mr Grieve sitting next to him, of the role that I now have the great privilege to occupy. He knows how important confidentiality is to the ability of the Attorney General to give frank, unvarnished and sometimes unwelcome advice to those who are conducting the policy of the Government. So he is quite right. He discharged his functions, as did my right hon. and learned Friend the Member for Beaconsfield, with great distinction and I am proud to have been a successor of theirs.
The right hon. and learned Gentleman has made it quite clear that the Supreme Court judges had every right to come to the decision they came to, and in fact they came to it unanimously, in an excoriating judgment which should put the Government’s Front Bench to shame. What is his view, therefore, of a Leader of the House who persists in believing, and makes it known that he feels, that the Supreme Court has instituted a constitutional coup? Surely he cannot remain in his post if he has that view.
There is nothing wrong with expressing robust critical views about a judgment. In so far as it imputes an inappropriate or improper motive, then it is wrong. I think it is a question of wording and of being careful with one’s language, but I took that remark, in so far as I saw it reported, simply to be a robust criticism of the judgment and nothing more—to which my right hon. Friend is entitled.
I have absolute respect for the integrity and competence of the Attorney General. In the light of what he has told the House this morning, can he guarantee absolutely that—save potentially a few days before a Queen’s Speech—there can be no question of his permitting Her Majesty’s Government to have a Prorogation between now and
The Attorney General has said that he is going to review whether advice should be published, but in answer to the former Attorney General, Jeremy Wright, he upheld and defended the privacy of that legal advice. Can he tell the House the scope of the review he is undertaking? Is it just related to the Government’s defeat in the Supreme Court or will it be drawn more widely?
What I am considering is the public interest, and whether or not there are factors in this case connected closely with the public interest generally that should outweigh the Law Officers’ convention and lead to disclosure, but that is not only my decision. I am in the position, in a rough and approximate way, between a lawyer and his client, and I must ensure that there is proper consultation and proper reflection on what the public interest requires. That is what I have undertaken to the hon. and learned Member for Edinburgh South West to do, and in due course I will make my mind up.
Did it come as a surprise to my right hon. and learned Friend that the Supreme Court ruled that the act of Prorogation was not a proceeding in Parliament? If that is the new law to which he has referred, would it be open to Parliament to change the law back to what we thought it was before?
My hon. Friend asks whether this came as a surprise. Quite a lot about the judgment came as a surprise, but that particular part proceeded from a quite strict, narrow interpretation of the Bill of Rights on what was a proceeding. It was interpreted to apply the protection afforded by the Bill of Rights to the core and essential business of Parliament, and it was held by the Supreme Court that such a proceeding—namely, the execution of the Queen’s Commission in the Lords, in the presence of Mr Speaker and those who attended that proceeding—was not sufficiently close to its core and essential business to attract the protection of the Bill. It would, of course, be open to the House to decide to legislate otherwise, and no doubt that is one of the implications of this judgment that will have to be reflected upon in the coming months and years. I know that there was a widespread view that it was indeed a proceeding in Parliament, but the Supreme Court is as entitled to redefine, or at least to take a view of, its definition of the protection afforded by the Bill of Rights as it is to invent a new legal principle, as it did in this judgment.
I am sure many of us would like to congratulate Joanna Cherry and Gina Miller on making sure that this remains a sovereign Parliament. The hon. Lady asked a question of the Attorney General which he has not answered. She asked him whether he could confirm that the Cabinet or members of the Cabinet—he is a member of that Cabinet —had asked to see his advice but were denied that opportunity. Can he confirm that his advice was requested by fellow members of the Cabinet but was denied?
Does my right hon. and learned Friend agree that, rather than being some new-fangled innovative decision, this was a profoundly conservative decision by the Supreme Court, asserting the ancient sovereignty of Parliament, and that fundamentally the principle at stake here is that, of course, neither that Court nor any other court should determine whether Brexit takes place—that decision has been made by the people—but that it is for this House, the only directly elected representatives of the people, to determine the form in which that Brexit happens?
Let me say to my right hon. Friend that the Supreme Court invoked the principle of parliamentary sovereignty and the convention of ministerial accountability to Parliament as a justification for making justiciable the decision to prorogue. That is what it was entitled to do, and it effectively amounts to converting a political convention into a legal rule. That, traditionally, was not thought to be possible; the Supreme Court has decided that it is, and I certainly do not in any way complain with its right to do so. I agree that Parliament has to determine the terms on which we leave, but this Parliament has declined three times to pass a withdrawal Act to which the Opposition had absolutely no objection. [Interruption.]
We now have a wide number in this House setting their face against leaving at all. When this Government draw the only logical inference from that position, which is that we must leave therefore without any deal at all, they still sets their face, denying the electorate the chance of having their say in how this matter should be resolved. This Parliament is a dead Parliament. It should no longer sit. It has no moral right to sit on these green Benches, and whatever—[Interruption.]
They don’t like to hear it, Mr Speaker. They don’t like the truth. Twice they have been asked to let the electorate decide whether they should continue to sit in their seats, while they block 17.4 million people’s votes. This Parliament is a disgrace. Given the opportunity—[Interruption.] Since I am asked, let me tell them the truth. They could vote no confidence at any time, but they are too cowardly to give it a go. They could agree to a motion to allow this House to dissolve, but they are to cowardly to give it a go. This Parliament should have the courage to face the electorate, but it won’t, because so many of them are really all about preventing us from leaving the European Union at all. But the time is coming, Mr Speaker, when even these turkeys won’t be able to prevent Christmas.
I think the Attorney General will find that the moral right I have to sit in this House is due to an election called by Mrs May, in which she lost 13 seats. I will represent my constituents as long as I sit in this House, and I am elected by the people to do so.
Will the Attorney General tell the House how much taxpayers’ money he has spent on closing down our voice?
Order. I say to Karl Turner that, as a result of my prodigious efforts last week, audiences in New York, Boston and Zurich are now aware that he is the noisiest Member of the House. I always enjoy listening to him, but preferably when he is on his feet rather than in his seat.
If David Hanson is so confident that his electorate will consider that his moral right to sit here is so strong, why does he not submit it to them now? All we need—I offer this to the Labour Front Bench—is a one-line Bill, which we could put through with Mr Speaker’s help, to fix the date of a general election by a simple majority, and we could have the election. Why does he not tell his Front Bench to put his confidence in his constituents to the test?
I wonder if my right hon. and learned Friend, having read the full summary of yesterday’s judgment by the Supreme Court, was also struck by something that seems to be missing within its methodology. When it stood up, it said, for the right of Parliament to hold any Executive to account, at no point did it reference that one of the ways of avoiding or dismissing a Prorogation would have been to pass a vote of no confidence in the Government or to vote for a general election. Does he agree that that would have been a sure-fire way for the Opposition parties to secure an end to any Prorogation and an immediate change of Government, if they so wished, but that they were frightened?
I entirely agree with my right hon. Friend. In our constitution, when a Government can no longer govern because Parliament has withdrawn its assent, the moral and constitutional thing to do is to have the courage of your convictions, which this spineless gang on the Opposition Front Bench do not, and to table a motion of no confidence, but they have not got the guts to table that motion of no confidence because most of them do not want their own leader in power.
None of us on the SNP Benches is worried about a general election. The Chancellor of the Duchy of Lancaster has suggested that the unanimous verdict of the Supreme Court is the equivalent of the view of just a few academics, and the Leader of the House has described the verdict as a constitutional coup. Unfortunately these views gain traction among members of the public, so will the Attorney General take this opportunity to give a strong statement of support both for the judgment of the Supreme Court and for the importance of the independence of the judiciary?
In answer to the hon. Lady’s last point, I completely and firmly support the independence of our judiciary. In Scotland, in England, in Wales and in Northern Ireland we have one of the finest judiciaries in the world. The fact of the matter is that the Supreme Court gave its judgment, and its judgment must be respected, but that does not prevent robust criticism of the terms of that judgment, which will no doubt be subjected to that criticism—that is onside. What is not onside is the imputation of improper or inappropriate motives.
I know that my right hon. Friend knows that, when it comes to the judges—though not to this shower on the Opposition Benches—I want to be, if I can, respectful and careful. It is important that we understand that these judges are protectors of all our freedoms and all our rights—
Order. I do not normally offer stylistic advice to the Attorney General, but his tendency to perambulate while orating is disagreeable to the House. He should face the House with confidence and assurance, and an acknowledgement that the House wishes to hear his every utterance.
I came into the Chamber today thinking I felt sorry for the Attorney General—I did!—but every word he has uttered today shows no shame, no shame at all. The fact is that this Government cynically manipulated the Prorogation to shut down this House, so that it could not work as a democratic assembly. He knows that that is the truth, and to come here with his barrister’s bluster to obfuscate the truth, and for a man like him, a party like his, and a leader like this Prime Minister to talk about morals and morality is a disgrace.
I am not sure I discerned a question in that marshmallow of rhetoric, but in so far as there was a question, there is an answer. If the hon. Gentleman thinks the Government should no longer be governing, he should tell his leader to bring a motion of no confidence this afternoon and to agree to a simple one-line statute that fixes the election by a simple majority. We would be delighted to meet the right hon. Gentleman wherever he chooses in front of the electorate, who will judge whether the machinations he supports and the devices to which he resorts to make sure that this dead Parliament continues are right or wrong.
The Attorney General speaks of moral and constitutional courage. Can he explain to the House why the Government did not have the moral and constitutional courage to file in the Supreme Court a witness statement attesting to the truth of the position that was outlined to the Supreme Court judges?
I cannot comment on matters that are plainly covered not only by the convention but by legal professional privilege, but I say to my hon. Friend that the Government’s position was set out clearly in argument—if she followed it all, she will know it went on for a very long time—and the Supreme Court decided against it. We accept that position.
Having lost in court, the Attorney General is keen to try his hand at another test—an election. Perhaps I can help him. In paragraph 41 of the unanimous judgment, the Supreme Court refers to
“Two fundamental principles of our constitutional law”,
“The first is the principle of Parliamentary sovereignty: that laws enacted by the Crown in Parliament are the supreme form of law in our legal system, with which everyone, including the Government, must comply.”
Is it not the case that, contrary to the shouted opinions from the Opposition Front Bench, the Supreme Court has invented a new constitutional rule, just as Lord Sumption told us on the “Today” programme this morning? Lord Sumption also said that this was a revolution—he described the decision as revolutionary. Is it not the case that—[Interruption.] The hon. Member shouts “shocking”, but it was Lord Sumption who said it. Is it not the case that, prior to this revolutionary decision by the Supreme Court, it is quite likely—indeed probable—that my right hon. and learned Friend’s advice was correct, but the Supreme Court changed the law?
I am grateful to my hon. Friend for the question. I cannot disclose what advice I gave. The hon. and learned Member for Edinburgh South West, who first asked this urgent question, had that answer, and I am afraid I am going to have to keep giving it today. However, what I would say is that the Supreme Court did indeed, as it overtly and explicitly said, develop the law. It took what was a political convention—hitherto, in all the constitutional textbooks, described as unenforceable by a court—and decided that it would set a test and convert it into a legal principle and legal test. It was perfectly entitled to do that, just as this House will, in the coming months and years, have to reflect on the implications and on whether it is content to leave that position untouched. However, for the moment, that is the law, and the law must be obeyed.
I simply cannot comment on matters that pertain to the internal preparation of cases, which are covered by legal professional privilege. It is simply not reasonable to ask people to do so, particularly when it relates to individuals. The hon. Gentleman should make no assumptions one way or the other from what I am saying. The fact is that cases are covered by privilege, and that must be respected.
There are many extremely distinguished and experienced lawyers in this House, but some of us are not lawyers, and many of our constituents are not lawyers, so could my right hon. and learned Friend the Attorney General explain the situation very clearly? Is this a new law? Does it set a new precedent? If it is a new law and a new precedent, will the Government comply with the new law and the new precedent?
It is a new principle of law, which has been found to exist by the Supreme Court, and where, hitherto, it has not been thought that a court could go. However, the Court is entitled to develop the common law, and that it has done. This does set a precedent; it is binding, unless this House, in due course, considers that it should take action to alter that position.
While yesterday’s Supreme Court decision upholding parliamentary sovereignty was extremely welcome, it should never have come to this. Our centuries-old unwritten constitution, based on gentlemen’s agreements, is not fit for purpose when dangerous populists are in office. Will the Attorney General therefore consider urgent proposals for a written constitution, developed with real citizens’ engagement, since our democracy belongs to all of us, not just those who think they are above the law?
I have a degree of sympathy with what the hon. Lady says. I think that, as we depart the European Union, there is ground for thinking again about our constitutional arrangements and how they should be ordered. I think that, in doing so, a widespread public consultation of the kind that she is describing would be essential, because any new constitutional arrangements would have to be sanctioned by the widest possible public support and assent, so I do have some sympathy. No doubt over the coming months and years, this will be a subject of important concern to the House.
Given that three of the most distinguished lawyers in the country, including the Master of the Rolls and the Lord Chief Justice, found in the lower court that the Government’s case was entirely correct, can the Attorney General enlighten puzzled non-lawyers like me as to why not even one out of 11 Supreme Court judges could be found to agree with them?
My right hon. Friend is asking me to look into a crystal ball. Far be it from me to fathom the inscrutable minds of their lordships in the Supreme Court as to why they chose not to dissent if they were minded to dissent, or to agree if they were minded not to agree.
I for one am delighted that we are sitting, but the Attorney General is absolutely right about one thing: the result of yesterday’s ruling is that all future Prorogations will be justiciable by the courts. The only answer to that, frankly, is legislation by this House. My gentle suggestion is that it might be a good idea if, in the future, Prorogation were only allowed to proceed if there had been a vote in this House in favour of it.
Well, if I may say to the hon. Gentleman, that is as I would expect from him, particularly in his new guise as an aspirant to even higher office—it is constructive, helpful, impartial and a model to us all.
I think, but I am not sure, that the Attorney General is seeking to help the hon. Gentleman.
In applying this new legal principle that has been created or invented by the Supreme Court, how many Prorogations in the last century would have passed muster to the test that has been created? How can this longest Session of this House since the civil war now be lawfully brought to an end, and a Queen’s Speech lawfully brought forward? Finally, is Royal Assent a proceeding in Parliament?
As to my hon. Friend’s first question, I say that, plainly, if one re-examines the historical records, there is no doubt that there would have been some—possibly quite a few— Prorogations that, under this test, might have had difficulty in passing. For example, Ramsay MacDonald prorogued this Parliament in 1930 for some months, during the course of a minority Government, at a time when the great Wall Street Crash had happened in 1929 and when I have no doubt that some would have said that the House should sit to determine the onset of the great depression and debate those important matters, but the courts looked on—they looked on impassively—as that Labour Government decided to prorogue. It happened again in 1948 and right up into the 1990s when it was said that a Parliament had been prorogued in order to avoid an embarrassing Select Committee inquiry. From now on, when a Prime Minister has to prorogue Parliament, he will have to look at all the Select Committees, see what inquiries they are doing and which Chairmen of which Select Committees might say in a mortally wounded and offended manner, “Why, to prorogue and not to allow my Select Committee to report is a matter of public importance, for which I will go to court and stop the Prorogation.” I do think that this test set by the Supreme Court invites quite a number of significant questions.
There are all kinds of reasons why, in judicial reviews, witness statements are not given in cases of this kind. I cannot discuss the internal counsels of the preparations of a legal case because, as I am sure the hon. Lady understands, they are covered by the wholly appropriate legal professional privilege.
I understand my hon. Friend’s question and say to him, quite frankly, that I think it is a matter which this House may need to reflect upon in the coming months and years, depending on the status of our constitutional arrangements, as indicated by Caroline Lucas. I do think that we are going to have to look again at our constitutional arrangements, and we should see if we can find some common ground. We need to have a proper consideration of these matters. As we leave the European Union, a great gap opens up, whereby we take away from legal integration all this European Union law, and we need to think about the implications. I therefore agree that there may very well need to be parliamentary scrutiny of judicial appointments in some manner. I have to say that I am not enthusiastic about that, but I understand why my hon. Friend asks.
The Attorney General’s defence today with regard to the Supreme Court judgment appears to be that because the Government won the semi-final, they should have been awarded the trophy. That is not how it works and he should acknowledge that, in the final, the Government lost 11-0. With regard to his call, which repeats the call from the Prime Minister, for the public to break the Brexit deadlock by casting their votes, if he is so keen for a public vote on Brexit, why does he not offer the public the chance to vote on the final Government Brexit deal, however that turns out?
I will tell the right hon. Gentleman why: first, because it would be an insult to the millions of people who voted in the first referendum to have a second one before we had implemented the first. [Interruption.] That is what I think. I know that people disagree, but it is a legitimate point of view. Secondly, the question now of this House is whether the Government are going to be permitted to govern. If the Opposition do not wish to allow the Government to govern, the morally correct thing to do is to seek to have an election. What I object to here is that the Labour party and others have repeatedly sought to block that and to prevent the electorate from having its say, when this Parliament is as dead as dead can be.
Following on from that, would the Attorney General accept that the vast majority of people I talk to have great faith in this Government, but have no faith in this remain Parliament? Although there are important legal implications from yesterday’s ruling, the practical implication is that this remain Parliament, which has talked about Brexit for over three and a half years, will now get several more weeks to do what it possibly can to talk about Brexit, but to make absolutely certain that 17.4 million people never get what they voted for.
The Attorney General accepts that his legal advice was wrong—that the Government got this wrong. Whether in law or not, it was patently obvious to everybody watching that it was wrong to prorogue Parliament in that way. The United Kingdom Head of State was asked by the Prime Minister to agree to an illegal course of action based on incorrect advice. What does the Attorney General believe should be the consequences for those responsible?
The same consequences that flow from any good-faith implementation of advice that, at the time, is perfectly respectable and tenable advice, as this was. The fact of the matter is that the Government’s position was that the Prorogation was lawful and it was constitutional. That was the advice that the Government had, it was the advice that they gave to those who asked them, and the Supreme Court has decided we are wrong. We accept that, as I have said. It was a tenable, reasonable and respectable point of view.
My constituents voted to leave the European Union, and many of them have written to me since yesterday’s judgment concerned about whether that will be delivered. Can my right hon. Friend the Attorney General confirm that there is nothing in this judgment that will prevent us from leaving the EU on
I cannot answer the last question, as the hon. Gentleman well knows, as Attorneys General have long maintained the convention that we cannot disclose either the fact or content of any advice. But I will deal with the first point. There is no question of this Government not obeying the law. There is a question as to precisely what obligations the law might require of the Government, but once those obligations are ascertained with clarity—and I am not saying that they are not clear; I am just saying that it is a legitimate consideration the Government must go through—the Government will obey them.
The law in relation to the referendum is that it was not binding upon this Parliament. It was binding in every moral sense upon those who promised the British people that it would be implemented, but it was not binding as a matter of law.
The Attorney General excuses recent comments by Members of this House as simply the expression of robust critical views, but would he agree that in fact those who have been arguing recently that Brexit would give back control to the UK courts and the UK Parliament have now completely U-turned and are actively working to undermine those institutions?
No, I think that is a ridiculous assertion, in fact. The reality is that what we who believe in leaving the European Union have fought so long for is to return to the United Kingdom the power to chart its own course ungoverned by unelected or other institutions in the European Union. How we arrange our constitutional arrangements is a matter for us, and it should be a matter for us. It should be a matter for the democratic assent of all the people of the United Kingdom. So I do not believe for a moment that this Government or those on this side of the House are trying in any way to avoid that. What we are trying to do is make sure that those powers come back to the British people, where they should reside.
The Supreme Court judgment said that the Government got the law wrong. We have to accept that, but it is perfectly true that in doing so, it effectively invented or created a new legal principle which hitherto had been a political convention and defined that principle in a new legal test. It is crystal-ball gazing to know whether any court would decide to do that. It did, though the Court below, led by the Lord Chief Justice, concluded that it should not.
I do not know—that is the answer to the question—but if the hon. Gentleman wants to know, he can put down a written question, or I am happy to write to him if he would like. I am very happy to disclose that in due course, once the costs are known. But I say to him that all those costs could have been saved if he had just voted for an election. We could have avoided these cascades of cash falling upon so many lawyers in so many jurisdictions by the simple act of him having the moral guts and not being chicken.
On the subject of taxation, could my right hon. and learned Friend advise me? These legal actions, I believe, have been part-funded by crowdfunding. Will that funding be taxable, and will the tax payable on that crowdfunding have to be paid by the individuals bringing the cases?
I do not believe that it is taxable, but if my right hon. Friend will permit me, I would need to look into it, and if she wishes, I will certainly write to her on the subject.
Earlier this morning, the Attorney General set out again his long-held views about why publishing his advice is not a good idea, so has he requested a leak inquiry to discover who gave documents to Sky News last night? If he has not, is that because he is worried it will unmask machinations in No. 10?
They are not just my long-standing views, as I know the hon. Lady will accept; they are the long-standing views of successive Attorneys General of all Governments over many, many years. As to her second question, I am not aware whether there is a leak inquiry, but these days, I am so used to the porousness of Government that, frankly, I use Cabinet to advertise whenever there is some particular cause that I want to espouse. The reality is that this Government and this Parliament are in a position where we need to go to the electorate, and I urge her to support that as soon as possible, because the only morally right thing to do is subject these debates to the public again.
I must raise my concerns about the Attorney General constantly saying that this Parliament is dead. This Parliament was elected in 2017. It reflects the divisions in this country, the divisions in our communities and the divisions in our families. The failure is that we have not yet reached a compromise. Many of us long to leave the European Union, as we set out in the referendum, but are frustrated by the fact that we have not been able to find a consensus among the different factions. May I urge the Attorney General to work with colleagues to try to find that compromise and to cease this language of pitting Parliament against the people?
I assure my right hon. Friend that if I had not been driven to this language, I would never have used it. The fact is—[Interruption.] The fact of the matter is that the Opposition will not let the Government govern. They will not do what the Opposition should do in these circumstances, and that is to vote for an election. By any standards, the Government are in a minority. The Order Paper is being taken over from the Government again and again, with no doubt further attempts to come. That is the very definition of a Parliament that will not fulfil its responsibilities, either to let the Queen’s Government be conducted or to opt for a general election. That is why I call this a dead Parliament and I do so advisedly. My right hon. Friend knows that nobody worked harder than I did for compromise. Nobody worked harder than I did to put through the withdrawal agreement that was put before this House. I—and she—worked hard to put this through. I have now reached a sad and heavy conclusion that this Parliament is no longer worth the candle and it should be gone, for any good it is doing.
May I say to the right hon. and learned Gentleman that his approach today should probably have been to show more humility and less levity, because there is widespread sympathy for the difficulty of his position offering legal advice in such challenging circumstances? To build on previous questions, in view of his advice on Prorogation having been found to be unlawful, will he tell the House whether he has been asked by the Prime Minister to proffer advice on whether it would be lawful to ignore the instruction of the Benn Act? The matter of whether or not he has offered advice is not subject to privilege.
Words fail me; they really do. The hon. Gentleman rises in the full force of his morality, having been elected for one party and sitting on the Benches opposite for another—and with Dr Wollaston, who did the chicken run, or the rat run, before him having said already that she thinks there should be a by-election when Members change their parties—and has the nerve to suggest that somehow I should have affected greater humility. I think he should be on his knees to his own constituents, begging their forgiveness for his betrayal. The fact of the matter is that the question is subject to the Law Officers’ convention as he knows, and I cannot answer him. I suggest that he asks me when he is back here, re-elected by his constituents, as no doubt he has confidence that he will be, and maybe I’ll give him an answer outside.
Does my right hon. and learned Friend agree that if Her Majesty’s Government choose to push their prerogative powers to the limit, as they are entitled, if perhaps not well advised, to do, they should both expect the challenge that they have had and the conclusion that has arisen from it? [Interruption.]
There was a very unattractive rant fest taking place between hon. Members on opposite sides of the House, gesticulating aggressively at each other. It is a very undesirable state of affairs. Let us have a bit of calm and have the question again and the answer, but we want to proceed very quickly.
You are most generous to hear me again, Mr Speaker. Does my right hon. and learned Friend agree that if Her Majesty’s Government wish to push their prerogative powers to the very limit, as they are entitled, if perhaps not always well advised, to do, the kind of consequences we have seen in the past few days are inevitable?
In any situation where constitutional powers are pushed to their limits, strain is bound to be caused. I completely accept that we are in an unprecedented time, when constitutional limits are being pressed on all sides, in this House, by seizing control of Order Papers, by rejecting the opportunity for a general election, and by not letting the Government govern. These are factors that place huge strain upon our constitutional arrangements, and I agree with my hon. Friend that it would be good if we resumed calmer waters, which we no doubt will as I have every faith and confidence in the good sense of this country and, in the end, the good sense of this House to be able to come to a solution. That solution must be, I believe, a general election.
Order. A number of hon. and right hon. Members are standing to contribute who were not standing at the start of the statement. That in itself is perfectly reasonable and I will seek to accommodate them if a thought has occurred to them that they want to convey, or a question that they want to put would otherwise go unasked, but once those who are standing have asked their questions pithily, we must move on to the next urgent question. I call Clive Efford.
The Attorney General has tried to take the high moral ground, but I have to wonder what morals were applied by the Government that led to yesterday’s Supreme Court decision. When did he first become aware that the advice given to Her Majesty the Queen, the Speaker of the House and the House itself about the reasons for Prorogation was not true?
In advocacy terms, that is what we used to call a “When did you stop beating your wife?” question. I do not accept the premise of the question. There is no question that the Supreme Court found in any way that any advice that had been given was consciously or knowingly misleading.
Does my right hon. and learned Friend agree that there is a judgment that is superior to that of any court’s? That is the judgment of the British people. It has once been given on the question of whether this country should remain a member of the European Union, but it has twice been prevented from being expressed in a vote of this House. Is it not now time that we allow them to give their judgment on this Parliament?
I could not agree more with my right hon. Friend. The time has come. The fact is that this Parliament has no further point. There is no possibility of our governing while this Parliament continues to block everything we do.
Extreme brevity is now required. Single-sentence questions, please, without preamble. I call Lady Hermon.
Thank you, Mr. Speaker. I have listened very carefully to the Attorney-General—I have not agreed with a fraction of what he has said—but I would like him to answer a specific question. Did it never cross his mind that if the Prime Minister made a ridiculous decision to prorogue Parliament for five weeks in the run-up to Brexit, which is the greatest constitutional change to the UK for years, the courts would rule that to be an unlawful Prorogation of Parliament?
If I were to answer that question—tempting though it is, particularly from the hon. Lady, who is also a friend—I would be transgressing the Law Officers’ convention, because I would be telling her what advice I had or had not given. But if she is asking, “Did it occur to me?”, my answer is that of course it did. Any barrister who enters into litigation without it occurring to him that he might lose is a bit of a nit, isn’t he? Of course it occurred to me that we might lose; it would be ridiculous for it not to occur to me.
Does the Attorney General agree with the view of the overwhelming majority of my constituents that the continued delay in delivering on the result of the referendum by
I completely agree with my hon. Friend, who has put his finger right on it. This continuing artificial prolongation of this dead Parliament is undermining people’s confidence—[Interruption.] I know why Opposition Members are not doing it; they know they will not survive, but they have to have the courage of their convictions, get on it, and put it to the country.
That is, of course, one function of a court’s role, but a court is perfectly entitled to develop the common law. I do not think there can be any doubt that that is what happened in this case.
It is often said that a lawyer who acts for himself has a fool for a client. It is also worrying if the lawyer is not aware of the costs of continuing with the advice. When the Attorney General makes a statement about the costs to the taxpayer, could he include the costs to the House authorities of having to reconvene on 24 hours’ notice and the inconvenience to staff?
May I place on the record, Mr Speaker, my endorsement entirely for your expression of gratitude to the staff of the House? They do an extraordinarily great job. We are deeply grateful to them for that and for the speed with which they have been able to facilitate the resumption of Parliament.
The hon. Lady will know that I cannot disclose whether I gave advice or the content of any such advice. It is covered by the Law Officers convention. The question, “Was the advice shown?” presumes that there was advice. It simply contradicts the Law Officers convention. I wish I could answer her question, but I cannot.
The Attorney General has accepted the Supreme Court’s judgment that the Government acted illegally in closing down democracy. Does he accept that his fundamental duty is to uphold the rule of law and democracy, not to fan the flames of hatred, pitting the people against the courts and democracy on the road to fascism, as he appears to be doing today by making fun of the Supreme Court and saying that the justices are making things up as they go along? We make the law, they interpret the law, and he and all of us should obey the law.
The hon. Gentleman really needs to listen more closely to what I say. The Supreme Court was perfectly entitled to reach the view it did. It did so by reasoned decision making and it was entirely within the scope of its jurisdiction, but there is no question but that in doing so it developed the common law. That is all I have said, and that is what courts often do.
It is not fear of the electorate that drives some of us in this House, but our determination to do the right thing by our constituents and the country against a Government who are determined to deliver Brexit at any price. Government Ministers have said today that somehow the judgment handed down by the Supreme Court could be disputed by other parties, but they never say which aspects of it they disagree with and on what basis. When Ministers cast doubt on this judgment, what exactly do they disagree with and why are they saying it in public?
The hon. Gentleman asks why Ministers might contest parts of the judgment. There is nothing wrong with the Government, the hon. Gentleman or any member of the public seeking to argue that parts of the judgment were either mistaken or poorly reasoned. I would not necessarily agree with that, but there is no harm in people doing it, because that is part of democratic debate. What is wrong, and what I deplore and urge all Members of this House not to do, is to impugn the motives of those who make the decisions. These are fine judges who reach their decisions impartially on what they think is the best view of the law. I have no doubt that that is what the Supreme Court did in this case.
I am not going to go into all the areas of the judgment that are fragile or vulnerable to alternative arguments. The arguments of the Government were set out in writing. The judgment of the Lord Chief Justice in the divisional court was brilliantly reasoned and was, in the Government’s view, entirely right, but the Supreme Court chose to disagree with it.
Despite the Prime Minister’s repeated denials, it is obvious from the angry reaction of Brexiteers over the past 24 hours that this attempt at Prorogation was about Brexit and nothing else. Is not the real reason why nobody would testify under oath as to what the Government’s reasons were that nobody, even in Government, believed that the Prime Minister’s reasons were the truth?
If the Prime Minister had wished to prevent this House from debating Brexit, he would have prorogued it from
The authors of this failed political trick—the Prime Minister and Dominic Cummings—have form in treating Parliament with contempt. What is truly contemptible and cowardly is Dominic Cummings, who refuses to give evidence to a Select Committee and has been found in contempt of Parliament, hiding behind the skirts of the Prime Minister. The Prime Minister is supporting an individual who works for the Government but who will not give evidence to a Select Committee. Does the Attorney General think that that is a respectable position?
I am not sure that that is a question for the Attorney General. I am sure the hon. Gentleman can find somebody who is able to deal with it better than I could, but what I will say is that attacking people who cannot answer for themselves in this House is not appropriate and I would not choose to do it myself.
Will the Attorney General explain why there was a lack of signed witness statements? Is it the case, as we all know, that civil servants could not defend the indefensible and thought that the Government were at it all along?
The Attorney General says that this Parliament does not want to do any work and does not wish to legislate. He is wrong. We are desperate to legislate on many very important issues, none more so than the Domestic Abuse Bill, on which Members across this place and the other place have worked together for two years. It could easily come before this place and we could get it into law and improve the lives of tens of thousands of people across the country. Will the Attorney General put aside his confected outrage and ask the Leader of the House to schedule for tomorrow and next week the important stages of this crucial Bill?
The Queen has been misled, the law has been broken and Scotland’s Supreme Court has ruled that the Prime Minister has been less than honest, yet there is not a hint of humility from the Government Benches. What sanctions does the Attorney General think that the Prime Minister’s playing fast and loose with our democratic institutions merit? Is the Attorney General seriously before us today to tell us that the Prime Minister’s position is tenable? Is it not the case that the decent thing for the Prime Minister to do is go?
May I then encourage the hon. Lady to ensure that we vote for the election motion that will come before the House shortly? That way she can try to ensure that what she hopes for will take place. However, I do not agree. The Supreme Court found no impropriety on the part of the Government, the Prime Minister or anybody else.
Does the Attorney General believe that the judgment has left 17.5 million people feeling more disfranchised than ever? How should the Government and the House repair that damage?
I completely agree. This House’s actions are bringing it into discredit. It is abandoning almost all reasonable precedent. The time has come for a general election, and to resist it is immoral, unparliamentary and undemocratic, but that is the decision that the Opposition have taken. Let us wait and see what the electorate make of it, but I hope they will understand that the Government are trying to fulfil the mandate of those 17.4 million people. We will never cease until we succeed.
It is reassuring to see that we are indeed carrying on where we left off. As a senior lawyer, does the Attorney General agree that any attempt to describe the considered, unanimous and unambiguous decision of the Supreme Court as a constitutional coup is nothing more than constitutional bull?
I am not sure I could have put that language in a parliamentary way. The Supreme Court’s decision was legitimate, perfectly reasonable and proper. We should be proud of our judiciary and proud of its independence in all jurisdictions—I apply that to the inner house, the outer house, the divisional court. Lawyers will disagree on some of those complex and fundamental principles, and that is what has happened here.
If the point of order relates to the matter of which we have just treated, I will take it.
During the urgent question, the Attorney General made a joke about the phrase, “When did you stop beating your wife?” Part of the reason people are so upset about Prorogation is that the Domestic Abuse Bill has fallen, as my hon. Friend Alex Norris just said. May I seek your advice on how the Attorney General can perhaps learn to moderate his language and not make jokes about domestic violence?
It is open to the Attorney General to respond if he wishes, although he is not obliged to do so.
If I have given offence, I certainly did not mean to. It is an old saying at the Bar, which simply relates to a cross-examination technique of asking a question that presumes the premise. It is the way in which we were taught. If I have given offence, I apologise.
I thank the Attorney General for responding. It is a matter of extreme sensitivity and it is incredibly important that we are sensitive to the wider implications and interpretation of what we say. Society’s mores change and sometimes one can find that things that one has freely said in the past without causing offence can no longer be said without causing offence, but each Member must make his or her own judgment. The Attorney General made his and he has said what he has said. I thank him for that.
On a point of order, Mr Speaker. I apologise for not giving notice of this point of order, but I seek advice that is relevant to our discussions. We have heard much about the way in which the Supreme Court has extended its remit to the actions of the Executive and how that may play out in future. Can you give advice, perhaps to your successor, about whether the Speaker’s actions and decisions should be similarly subject to judicial review and how that may work in future?
I am extraordinarily grateful to the hon. Gentleman, but as an attempted point of order, frankly, in old-fashioned O-level terms, with which I am familiar and of which the hon. Gentleman is probably aware, it would get an Unclassified. It was not even a good try. I do not bear the hon. Gentleman any ill will, but if people are going to have a go at these things, a degree of nuance, subtlety and ingenuity would at least command respect. There is a grade and I am afraid that the attempt was way below it.
I will take the point of order if it is on the matters we have been discussing and not beyond.
Apologies for not giving you notice, Mr Speaker. During the previous exchanges, the Attorney General repeatedly said that this Parliament was a dead Parliament. He said that it should no longer sit and that we had no moral right to sit on these green Benches. How can we ensure that the Attorney General makes a statement to retract those words? They are beneath him and this place. I was sent here by the people of Livingston and of Scotland, as my colleagues were sent by their constituents. Our position should not be undermined by such flippant and ridiculous language.
There is an important issue here. Is something that causes offence required to be withdrawn? I say in all candour to the hon. Lady, whose sincerity I respect, that the answer to that is no. Lots of things are said that may cause offence or provoke umbrage and about which there will be dispute, but there was nothing disorderly about what the Attorney General said. The hon. Lady has registered her view with considerable force and alacrity, and it will be on the record for her constituents to observe. No impropriety has taken place.