European Union (Withdrawal)

Chris Philp Excerpts

Tuesday 3rd September 2019 Commons Chamber

[Chris Philp (Croydon South) (Con)]

For three long years, we have talked about, debated and voted repeatedly on Brexit in this House, and yet here we stand after three years not having reached any firm resolution. In supporting the motion before the House this evening, we would simply prolong even further the uncertainty that our country and our businesses are experiencing, which my hon. Friend the Member for Bromley and Chislehurst (Robert Neill) described in his excellent speech. We have a responsibility, having been elected in 2017 on manifestos to respect the referendum result, to do so, to stop prevaricating, to stop kicking the can down the road and, one way or another, to reach a definitive conclusion. The motion before the House does not do that. It simply prevaricates even further.

Some Opposition Members have been very clear about what they want, and I respect that. My neighbour, the right hon. Member for Carshalton and Wallington (Tom Brake), and the hon. Member for Brighton, Pavilion (Caroline Lucas) have both been clear previously and this evening that they would rather remain in the European Union and that they certainly do not want a no-deal exit. I disagree with that view, but at least they have clarity in expressing it. They also say that they do not want to leave with no deal, but those who adopt that view have only two choices: either to accept any deal that is offered up, no matter how bad, or to remain, and I do not think either of those options is acceptable. Remaining, when the country voted to leave and the main two parties were elected on manifestos to leave, is wholly unacceptable. There is only one sensible option, as my hon. Friend the Member for Bromley and Chislehurst eloquently pointed out—

[Mr Nicholas Brown (Newcastle upon Tyne East) (Lab)]

claimed to move the closure (Standing Order No. 36).

Question put forthwith, That the Question be now put.

Question agreed to.

Main Question put accordingly.

The House proceeded to a Division.

Privilege (Withdrawal Agreement: Legal Advice)

Chris Philp Excerpts

Tuesday 4th December 2018 Commons Chamber

[Keir Starmer (Holborn and St Pancras) (Lab)]

I beg to move,

That this House finds Ministers in contempt for their failure to comply with the requirements of the motion for return passed on 13 November 2018, to publish the final and full legal advice provided by the Attorney General to the Cabinet concerning the EU Withdrawal Agreement and the framework for the future relationship, and orders its immediate publication.

I move this motion in my name and in the names of the relevant spokespeople for the Scottish National party, the Liberal Democrats, the Democratic Unionist party, Plaid Cymru and the Green party.

The issue before the House on this motion is very simple: have the Government complied with the order made by this House on 13 November this year to publish the final and full legal advice by the Attorney General to the Cabinet concerning the EU withdrawal agreement and the framework for the future relationship, yes or no? That order was binding. Mr Speaker, on 13 November I sought your advice on that issue and you ruled in the following terms:

“The ruling I give is simply that the motion is effective—I have been advised thus. It is not just an expression of the opinion of the House; it is an expression of the will of the House that certain documents should be provided to it.”—[Official Report, 13 November 2018; Vol. 649, c. 236.]

Yesterday, the Government published a reasoned position paper. That was not legal advice. It simply described the deal: it was a synopsis; it was in the nature of an explainer—an explainer having already been published when the deal was published. It was a long way from legal advice. The Attorney General made a statement to the House and then answered questions, but the Government did not publish the full and final advice by the Attorney General to the Cabinet. That is the long and short of it. The Government are wilfully refusing to comply with a binding order of this House, and that is contempt.

Yesterday, the Attorney General as good as admitted it when he said:

“I wish that I could comply with the request of this House but if I did, I sincerely believe that it would not be in all of our interests.”

And slightly later he said:

“although the House says that I should disclose, I believe that the public interest compels me not to. I am sorry.”—[Official Report, 3 December 2018; Vol. 650, c. 534 and 564.]

That is a plea of mitigation; it is not a defence.

I make three points about the Government’s position. First, as the hon. Member for North East Somerset (Mr Rees-Mogg) made clear yesterday, for the Attorney General to say that in his view it is not in the national interest is not good enough. The hon. Member for North East Somerset went on to say:

“When the Government lose a vote, they must follow the will of this House under an Humble Address, according to all precedent. It is no longer a matter for the Government to judge; it has been decided by this House, which is a higher authority.”—[Official Report, 3 December 2018; Vol. 650, c. 563.]

My second point is this: if the Attorney General feels so strongly about this matter that he is prepared now to put the Government in contempt of Parliament for refusing to comply with a binding order, why on earth did he not vote against the order in the first place, or anybody else on the Government Benches? That was not an oversight: the Government knew very well what was being asked for. The Attorney General must have known what was being debated and voted on. Yet it appears from answers given by the Attorney General yesterday that he was not asked before that vote for his view on the wisdom of not voting against the order, nor did he offer any advice, directly or indirectly.

Again I quote the Attorney General:

“I had no discussions with the Chief Whip on this subject. None was sought.”—[Official Report, 3 December 2018; Vol. 650, c. 569.]

I do not doubt the Attorney General’s word for a minute, but really—before that vote nobody asked the Attorney General’s views on the consequence of not opposing the order?

The truth is that the decision not to oppose the order was a political decision, taken by the Government because they feared they would lose the vote. They did not want the short-term humiliation of losing a vote, and the price of that was higher than voting against the order—and none of them did that. That is not the first time that has happened.

[Chris Philp (Croydon South) (Con)]

Will the right hon. and learned Gentleman give way?

[Keir Starmer]

I will in a moment.

For months the Government have ignored Opposition day motions, and now their tactic has got them into very deep water indeed. The Government cannot now come to this House and say, “We took a political decision not to oppose the making of the order to publish the full and final legal advice by the Attorney General and then we took a decision not to comply with that order, but somehow we are not in contempt of Parliament.”

My third point is about the Government’s amendment in the name of the Leader of the House asking this House to refer the matter of whether the Government’s response fulfils the motion to the Privileges Committee. The short point is this: there is nothing to refer. A binding order was made and the Government are refusing to comply with it. The reality is that, yet again, by their amendment the Government are simply playing for time in the hope that this ends up in the long grass until the crucial vote is long gone.

So this motion is extremely important. It has huge constitutional and political significance. Bringing the motion is not something I have done lightly. [Interruption.] On the contrary—[Interruption.] On the contrary—[Interruption.] On the contrary—[Interruption.] On the contrary—[Interruption.]

--- Later in debate ---

[Andrea Leadsom]

I will not give way for a while.

The consequences of not following the principles of transparency on the one hand and safeguarding public interest on the other are obvious. The House could request, by way of a Humble Address, information that could compromise national security. It would mean releasing information with no method for the House itself to review or assess the information in question, before its full release into the public domain. It would not be possible under the Humble Address procedure to weigh up any potential consequences of such a disclosure. It is simply an irresponsible thing to do.

I turn to the present case concerning Law Officers’ advice. As the House is aware, this is the subject of very long standing conventions which are enshrined in the ministerial code, and recognised in “Erskine May”. First, without the authorisation of the Law Officers, the fact that—or indeed whether—their advice has been provided to Government should not be disclosed. Secondly, such advice must not be provided to those outside of Government without the Law Officers’ express authorisation.

The purpose of the conventions is to provide the best possible guarantee that Government business is conducted in the light of full and frank legal advice. This is a fundamental principle of the rule of law. If Government knew that they might be forced to disclose the advice that they had received, it could seriously compromise the sorts of request for advice that would be made, and totally impede the ability of the Law Officers and Government lawyers to provide it. In turn, that would seriously compromise good government.

The motion we are debating today would undermine these vital conventions, and it would do so through the blunt instrument of the Humble Address, an arcane parliamentary procedure which, until very recently, was last used in this way in the 19th century. Moreover, there is real doubt about the ambit of the procedure: as I said earlier, it contains no mechanism by which information can be reviewed to ensure that its disclosure would not seriously harm the public interest. In considering today’s motion, hon. Members must reflect carefully on this—and on the potential consequences not just for this Government, but for all future Governments.

As this House knows, the Government have worked extremely hard to comply with Humble Addresses that have been passed previously. We have also sought to do so in response to the case we are debating today, while at the same time, taking steps to protect the national interest. The conventions that I have spoken about stand and endure because they respect the proper balance between the Government and Parliament—and the principle that Ministers should be as open with Parliament as it is possible to be, provided that disclosure of information does not compromise the wider public interest. We chip away at them at our peril; today’s motion is not in the interests of Members and it is definitely not in the national interest. What we break now may be very difficult to fix later.

[Chris Philp]

The Leader of the House has been commenting on the use of the Humble Address mechanism to compel the disclosure of information. We were told by the Attorney General yesterday that this information would be prejudicial to the national interest. Is it not impossible to debate openly in this House whether that information should be disclosed without knowing what the information is? Would it not be more appropriate to make the decision in a confidential tribunal about what may and may not be disclosed, analogous to a judge making such a decision when a matter of disclosure arises in a court of law?

[Andrea Leadsom]

Again, my hon. Friend points out the problem, which is that the right hon. and learned Member for Holborn and St Pancras’s motion seeks that all the information be placed in the public domain without anyone on either side of the House having the ability to consider whether it is in the national interest to do so.

I want to turn now to the contempt motion itself. We recognise that concerns have been raised as to whether the Government’s response meets the terms and spirit of the motion agreed on 13 November. We consider that the spirit and intent of that motion have been fully complied with. As I said earlier, the Government have now provided a 48-page paper setting out the legal effect of the withdrawal agreement, and the Attorney General came to the House yesterday. Anyone present in the Chamber for his statement and his subsequent responses to questions can be in absolutely no doubt that the Attorney General gave a full—[Interruption.]

--- Later in debate ---

[Chris Bryant]

I do not want to go back to 1340, as the hon. Gentleman did, and I am not going to. I prefer to cross my bridges one at a time. I am hopeful for all the good reasons that he himself adduced that, if the House for a second time decides to insist on its will, the Government will then comply. To be honest, if that were not to be the case, I hope other hon. Members who today are dubious about this procedure would want to stand in favour of more robust measures. The anxiety is of course that there is a time factor. We cannot let this roll on until after next Tuesday because then the Government would have completely defied the will of the House beyond the time necessary.

[Chris Philp]

A few moments ago, the hon. Gentleman referred to having to implement the will of the House. Does he believe that there should be any limitation on the House’s ability to impose its will, for example, if it came into conflict with an individual’s personal or civil liberties?

[Chris Bryant]

In the debate that would transpire, I do not think that hon. Members would vote for such a motion. The hon. Gentleman asks me a hypothetical question, and we have been dealing with lots of hypotheticals. I have tried to search through history for a moment when the Government refused to abide by the will of the House when there was a Humble Address and I simply cannot find one. We should therefore deal with the actuality rather than the hypothetical. I say to Conservative Members that it is all very well when sitting on the Government Benches to say that the Government should have their way, but that does not normally serve the long-term interests of the nation, and in our current system, the Government have phenomenal power.

--- Later in debate ---

[Chris Philp (Croydon South) (Con)]

At the heart of our debate today is a question of Parliament’s powers and prerogatives. The right hon. and learned Member for Holborn and St Pancras (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 the Member for Beaconsfield (Mr Grieve) described Parliament’s power as untrammelled, and the hon. Member for Rhondda (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 the Member for Harwich and North Essex (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—

[Mr Kevan Jones]

The hon. Gentleman is talking complete nonsense with the idea that in order to vote against the motion on 13 November the Government would have had to disclose the evidence in that debate. Is it not a fact that the reason why they did not oppose that vote is that they would have lost it?

--- Later in debate ---

[Chris Philp]

The hon. Gentleman is engaging in speculation. The fact is that when matters of public disclosure are considered in other environments, for example, a court of law, an independent person, in this case a judge, in chambers, in private, decides what might publicly—

[Mr Kevan Jones]

rose—

[Chris Philp]

I must conclude, because Mr Speaker wishes to move on with the business. That independent person decides what gets publicly disclosed. No such device or mechanism was available to this House on 13 November and it strikes me that the Privileges Committee is a suitable forum in which the balance between the desire for disclosure and the public interest can be struck, and it is appropriate that that balance is struck in private. I will therefore be supporting the amendment. I know that you wish to move on, Mr Speaker, so I will conclude my remarks there.

Private Members’ Bills: Money Resolutions

Chris Philp Excerpts

Monday 21st May 2018 Commons Chamber

[Chris Philp (Croydon South) (Con)]

It is a great pleasure to follow the right hon. Member for North Durham (Mr Jones), who was unusually succinct.

I will concentrate my comments on the question of money resolutions, which is the topic of this Standing Order No. 24 debate. I must say that my hon. Friend the Member for North East Somerset (Mr Rees-Mogg) and my right hon. Friend the Member for Forest of Dean (Mr Harper) put this very well. The nub of this question is whether the right to initiate public expenditure should sit with the House as a whole or with the Government. By requiring Government consent before a money resolution is tabled, we are in effect saying that it is the prerogative of the Government to initiate public expenditure, not the prerogative of the House as the whole. It is the role of the House as a whole to consent to expenditure, but not to initiate it.

The reason for that is twofold. The first reason why it is important to do it that way is that the Government, in their general duties, have to balance the demands of spending and raising taxes. If the House as a whole seeks to introduce measures that require significant expenditure without at the same time raising the revenue to do so, we quite quickly head towards national bankruptcy. That is why we have a Budget each year in which the Government, with an even hand, balance those things. If we simply allowed the House as a whole to initiate unfunded expenditure, we would rapidly go bust.

[Alex Norris]

The hon. Gentleman makes a very compelling case for voting against a money resolution, but does he understand that that is not an argument for not tabling a money resolution?

[Chris Philp]

Perhaps I should elaborate further on the distinction I was drawing about the power to initiate expenditure. The Government rightly have the power to initiate debates and votes on expenditure. In this case, the Government are choosing—this may change, but at the moment they are choosing—not to do so.

The second reason why it is reasonable for the Government rather than the House as a whole to have the power to initiate significant expenditure is that if the House as a whole took that power on itself, the House as a whole would in effect become the Government or the Executive, and rather than having a system of Cabinet Government, the whole House would in effect become the Cabinet and the established system of Government would fundamentally cease to exist. Although this seems like quite an arcane point, there is in fact a profound constitutional principle underpinning it. The whole role of Parliament would fundamentally alter if we took the step being contemplated.

[Pete Wishart]

The hon. Gentleman is in effect saying that a Member who is successful in the private Members’ Bills ballot should go to the Government to see whether they will give it their approval before progressing with the Bill. Is that what we should do?

[Chris Philp]

No, that is not what we should do. I am specifically referring to the expenditure of significant amounts of money that requires budgetary balance—a discipline Labour Members may well want to reflect on.

The right hon. Member for North Durham listed a number of private Members’ Bills over the years, some of which have been very significant, but as my right hon. Friend the Member for Forest of Dean pointed out in an intervention, almost all—in fact, all—of the private Members’ Bills that were listed did not require significant expenditure. The distinction I draw is about initiating expenditure and the balance between the Executive and the legislature.

[Mr Kevan Jones]

That is fine, but will we then get a situation in which, when someone initiates a private Member’s Bill, we get into a debate not about whether it needs a money resolution, but whether it needs what is deemed to be a significant amount of expenditure? As we all know, what is significant in the eyes of one person is different from what is significant in the eyes of others.

[Chris Philp]

I hope that the right hon. Gentleman is not suggesting that the expenditure in this case—I think it is some £13 million—is insignificant; that money would pay for 300 nurses. If Labour Members are seeking to advance the argument that £13 million of our constituents’ money is insignificant, I think they are sorely mistaken. If that is their attitude, it perhaps explains why the deficit they bequeathed us in 2010 was quite so large.

To move on to the process, the Government are taking quite a sensible view by saying that they will wait and see when it comes to the money resolution for this private Member’s Bill, because we have an active process that is currently running and on which considerable time and money have already been expended. There will be a report to the Government and also to the House in a matter of three or four months, and to have two separate processes cutting across and indeed contradicting each other before the House has reached a decision on the first process strikes me as duplicative and wasteful. It is therefore quite reasonable to wait for three or four months—it is not very long: a matter of a few weeks—before deciding how to proceed.

The House itself will reach a decision about the proposed boundaries with 600 constituencies in the month of October, and having waited seven or eight years we can quite comfortably wait until then. At that point, we will of course have a debate about the Boundary Commission proposals, and the fact that the Government are prepared to wait and see with regard to this private Member’s Bill until then hints at some degree of open-mindedness about the outcome of whether we are equalising at 600 or 650 constituencies. That open-mindedness actually shows respect for the House because the Government are saying that they will listen to the House’s opinion in a few months’ time. There are of course good arguments on both sides—in favour of 600 and in favour of 650. The arguments in favour of 600, of course, relate to reducing the cost of and having a more manageable House, but there are clearly good arguments in favour of 650, not least—

[Nick Smith]

rose—

[Chris Philp]

I want to conclude, as other Members want to speak.

Not least among the arguments for 650 is the fact that we in this House will have more work to do when powers return from the European Parliament, where they are currently exercised. We will have that debate in due course.

The Government are being pragmatic and sensible by keeping the door open for this private Member’s Bill until the House makes its decision known. On the fundamental constitutional principle of who initiates expenditure and whether this House acts as a legislature or as an Executive, I think the Government and the Leader of the House are quite right and she enjoys my enthusiastic and unqualified support.