Privilege (Withdrawal Agreement: Legal Advice)

Lord Clarke of Nottingham Excerpts

Tuesday 4th December 2018 Commons Chamber

[Andrea Leadsom]

I agree with my hon. Friend that the House needs to exercise some caution, and I wish to explain precisely why.

The issue we are debating today is the Government’s duty to protect Law Officers’ advice in the national interest. The House has previously recognised the importance of the principle that information cannot always be disclosed. This is always guided by the need to protect the broader public interest. This is directly reflected in the Freedom of Information Act 2000, brought in under a Labour Government, which sets out a careful scheme for balancing the twin imperatives of transparency on the one hand, and of safeguarding the public interest on the other. The consequences of not following those principles are obvious. The House might request, by way of a Humble Address, information that could compromise national security or which might put the lives of our troops in danger.

[Mr Kenneth Clarke (Rushcliffe) (Con)]

Obviously, parliamentary sovereignty and the duty of Government to obey motions is extremely important to the House, but my right hon. Friend is rightly describing the other problem of the confidentiality of legal advice, which Labour and Conservative Governments need as well. Is there not a sensible solution to this, as opposed to this current party political exchange? The Opposition could agree to receive a confidential briefing on Privy Council terms, look at the documents and have the Attorney General point out those parts that, in everybody’s view, might damage the national interest or damage the negotiating position of any Government of any party, and in effect agree to redact the documents. The politically embarrassing bits, which are what the Opposition are after, and all the rest of it can come out.

Both the conventions—that the House must be obeyed and that the Attorney General’s legal advice should be confidential—should be protected, and that is a possible way of reconciling them.

[Andrea Leadsom]

I am grateful for the advice of the Father of the House, but he will appreciate that the right hon. and learned Member for Holborn and St Pancras (Keir Starmer) wants all legal advice to be put into the public domain without any attempt to protect the national interest.

--- Later in debate ---

[Mr Kenneth Clarke (Rushcliffe) (Con)]

I follow up entirely on what has just been said by the hon. Member for Swansea West (Geraint Davies). He and the right hon. Member for Leeds Central (Hilary Benn) obviously have some sympathy with what I said.

It seems to me that the House is facing an extremely difficult dilemma, which was exactly the one faced by the Attorney General yesterday. There are two very important constitutional principles involved here that are important to people on both sides of the House, and unfortunately the present situation puts them in direct conflict with each other. The first is the sovereignty of Parliament and its ability to instruct the Government to do things that the Government do not want to do.

I will not repeat what my hon. Friend the Member for North East Somerset (Mr Rees-Mogg) said, because I entirely agree with everything he said, but the Humble Address is an extremely important weapon of this House. It is the duty of Parliament sometimes to instruct the Government to do things. We know that whenever the Government lose a vote, they think Parliament is wrong—they disagree—but they should comply. Parliament in recent years has greatly weakened its powers vis-à-vis the Executive. We should all think ahead to future Parliaments and simply not weaken it any further.

The Government did not vote against the motion when it was before the House because they knew they were going to be defeated. We all know why they asked Conservative Members not to vote at all. I disapprove of that. A Humble Address is an instruction. I disapprove of refusing to vote on Opposition motions and other motions. It may well be that constitutionally they are not legally binding, but we have never previously had a Government that just said, “Well, the House of Commons can express opinions if it wants, but as they’re not legally binding, we won’t bother to attend, and not many of us will listen to it.” That is a very unpleasant step.

Ahead of us are votes, including the meaningful vote on the withdrawal agreement and votes on the Bill that is necessary to implement that. Particularly on the meaningful vote, I hope that the Government abandon the idea that the only vote of any legally binding significance is the one on the Government’s proposal—yes or no—and that if the House wants to pass amendments or motions or express a different opinion, that is very interesting and a matter of opinion, but the Government will ignore any amendments. That was virtually what was being urged on the Procedure Committee a few weeks ago.

I hope that when we get on to sorting out the procedure for next week’s vote on amendments and the motion and for the Bill that ultimately follows, we go back to the standard procedure, whereby amendments can be tabled to Government motions before the motion is put, and when amendments are carried, the only vote remaining of the House is whether it approves of the motion as amended. With great respect, I do not think we should take any notice of all this stuff about the Government’s duty being to listen to what the House says and then decide, in their opinion, whether the public interest justifies complying with it. I am entirely on the side of the critics.

On the other hand, as my hon. Friend the Member for North East Somerset said, the Conservative party will deeply regret when one day it is in opposition that it has challenged the authority of Parliament, and the Labour party might well come to regret when it gets into government its attempts to override the convention that Governments are entitled to confidentiality when they get legal advice from the Attorney General. It is quite ridiculous to throw out either of those principles, because there are occasions when they are both extremely important.

I am not a lawyer in the same rank as my right hon. and learned Friend the Attorney General, though I have practised for many years. I once declined an offer of an appointment as a Law Officer, because I preferred to stay in the departmental job I was then in. I am now totally out of date—I accept that—but I am very familiar with the circumstances when a lawyer gives advice to his clients and gives honest opinions of the legal advice. Of course a lawyer is talking about the circumstances of the case, but Law Officers’ advice in particular, which I have seen many times when I have been given it as a Minister, is all muddled up with questions of policy, the law, arguments about tactics and comments on what the other side might do. Advice is given to a client in a way that 100% should be an accurate expression of the lawyer’s opinion of the law, but it will be coupled with lots of other things, because the lawyer does not just sit there ignoring the merits or what the client wants to achieve.

[Justine Greening (Putney) (Con)]

My right hon. and learned Friend is making a powerful argument. He is saying that the House should not have to choose between those principles, and what we should have expected was more leadership from those on both Front Benches in order to reach a proper, thoughtful solution on how to strike the right balance—just as we have on security matters, for example. This is a unique position we find ourselves in, but it was not beyond the wit of the political leaders in our country to reach a solution and avoid this point.

[Mr Clarke]

My right hon. Friend summarises my argument in a very neat way. That is exactly the case. I will not do the Father of the House “What it used to be like” and all that sort of thing, but I would have expected—it would easily have happened in my time—the usual channels to sort this situation out.

[Mr Peter Bone (Wellingborough) (Con)]

Oh dear!

[Mr Clarke]

Well, perhaps the usual channels were more reliable in the past. We would get together and agree that the House has passed a resolution, but there are these problems, and we satisfy the Opposition that their political desires can be satisfied and they can get all the documents with the embarrassing political opinions of the Attorney General—though I do not think they will find much, because the Attorney General is pretty candid. He is a very sound Brexiteer. He and I do not agree on Europe in the slightest.

They can excise things such as security, which we have talked about. I do not know what is being excluded or held back, but it is likely to be comments on the negotiating position of the Commission, the strengths and weaknesses of the Government’s case and where there are risks. A great deal of a lawyer’s advice is, “This is my opinion, but the risks involved are this”. Some of these comments about other Governments, the Commission and so on it may well not be in the public interest to disclose. There are reasonable people on both sides of the House and on the Procedure Committee, and I would have thought that we should certainly consider where we are going.

[Sir Oliver Heald (North East Hertfordshire) (Con)]

Will my right hon. and learned Friend give way?

[Sir William Cash]

Will my right hon. and learned Friend give way?

[Mr Clarke]

I will not give way, because I am concluding. It will not take too long, because it is just my one suggestion that I am pursuing. I have made it twice now, so I will not labour it too long.

It seems to me likely that the motion we are debating is going to be carried. There must be a very considerable risk of that. I do not know whether the Chief Whip thinks he has a majority for resisting this motion. Even then, I would hope that we will consider how to do this in a responsible way that does not prejudice the national interest or the interests of British Governments. I would also hope—I am not sure that the Committee of Privileges is the best place to do this, but it was done in the case of the Exiting the European Union Committee, as we have been reminded—that somebody nominated as responsible by the Opposition could have a look at the documents and give the Attorney General the opportunity of explaining why, yesterday, he was so obviously wrestling with a dilemma or problem of conscience about its simply not being in the national interest to put all this in the newspapers. The previous problem was solved by redactions, and I still urge that there should be redactions.

Nobody in the Opposition is going to allow the Government just to hold back things that are politically embarrassing, somewhat at odds with what the Government are now saying or advocating a tactic that the Government in the end chose not to use, and all that. Because we lost the motion for a Humble Address, I fear that Conservative Members have to be braced for that if these documents do come out. However, there is a public interest in not undermining the confidentiality of the legal advice.

I repeat my suggestion. No one knows where we are going in politics, who will be in government and who will be in opposition for very long, but what matters is that this Parliament is not weakened any further and that the ability of Governments of whatever party to rule in the national interest is not undermined. I repeat my suggestion, and I think that if the Opposition are victorious, they should in the public interest consider how far they wish to press it. I am sure that the House as a whole would accept it if they held back in some ways and the Law Officers’ confidentiality was left intact.

[Several hon. Members rose—]

Business of the House

Lord Clarke of Nottingham Excerpts

Thursday 1st November 2018 Commons Chamber

[Andrea Leadsom]

I am sorry that the hon. Gentleman is disappointed. He will realise that it was important to prioritise the Budget debates this week. Standing Orders specify that the Backbench Business Committee is allocated 35 days each Session, and, as I acknowledged last week, although this is an extended Session, the Committee has already had more than the number specified in the Standing Orders. I will work closely with him, however, to find other dates.

I point out gently that in response to requests from hon. Members for Government time to be given to debates that have also been priorities for the Backbench Business Committee, we have held debates on subjects such as the use of folic acid, the centenary of Armistice Day and, importantly, road safety, which I know the hon. Member for Bradford South (Judith Cummins) has been keen to pursue. I hope that the hon. Gentleman will bear with me, and I of course will seek Back-Bench time as soon as possible.

[Mr Kenneth Clarke (Rushcliffe) (Con)]

The Leader of the House, in replying to the hon. Member for Perth and North Perthshire (Pete Wishart), confirmed that we are going to have a meaningful vote on the Government’s agreement when it comes back from Brussels, and she confirmed that we are going to have meaningful votes, because there will be amendments to that motion. She was of course right to say that the Government cannot ratify the draft agreement if this House rejects it, but does she accept that the meaningful votes on the amendments mean that if an amendment is passed, the Government will feel that they should go back to Brussels and try to negotiate a deal as amended by the majority of this House? I hope she is not reverting to the argument “It’s the deal we’ve got or no deal at all,” which the Government were defeated on when we debated the withdrawal Bill earlier this year.

[Andrea Leadsom]

My right hon. and learned Friend is absolutely right to point out the facts of the case, which are that the Government will bring forward a vote on the deal that they have negotiated, it will be an amendable motion of the House, and should the House amend that motion, the Government would take action on those amendments. However, I must point out to the House again that having negotiated a particular deal with the European Union, it may well not be possible for the Government to proceed on the basis of an amended motion. Whether the House will be asked to decide whether it agrees that the Government negotiate on the basis of the agreed deal will be a matter for the House.

Business of the House

Lord Clarke of Nottingham Excerpts

Monday 16th April 2018 Commons Chamber

[Andrea Leadsom]

As I have already said, the Prime Minister has just answered questions for three and a quarter hours. She gave individual responses to individual questions, which is a much more detailed response than in a general debate. We are now looking forward to the urgent debate put forward by the hon. Member for Wirral South (Alison McGovern), and that is what we are all waiting for.

[Mr Kenneth Clarke (Rushcliffe) (Con)]

I have been asking myself for some days why the Government would not table a substantive motion in this House and put the matter to a vote. I cannot rid myself of the unworthy suspicion that there may have been some doubts as to whether we would get a majority for it, and whether we might repeat the 2013 experience.

Does my right hon. Friend agree that, having listened to three and a half hours of questions—a performance by my right hon. Friend the Prime Minister of outstanding endurance and assurance—it is quite obvious that there is a large majority in this House in favour of the action that the Government have taken? Will the Leader of the House discuss the matter further with colleagues and lay any fears on one side? We would be in a stronger position if the House gave a big majority for the action.

[Andrea Leadsom]

I am very grateful to the Father of the House for his advice, and I will, of course, take it away.

Business of the House

Lord Clarke of Nottingham Excerpts

Thursday 3rd November 2016 Commons Chamber

[Mr Lidington]

No, it is a full day’s debate in Government time on the UK’s exit from the European Union and workers’ rights, and it is but the first of a series of such debates that will provide ample opportunity for Members of Parliament from all parties to express their views clearly. I will just say this to the hon. Lady: if she really thinks that it is sensible for the Government to set out in public a detailed negotiating position ahead of a negotiation with 20 other countries, I would love to be negotiating on the other side of the table from her.

[Mr Kenneth Clarke (Rushcliffe) (Con)]

I realise that the Government are trying to maintain their efforts to stop the House from having a vote on article 50, but can my right hon. Friend reassure me that he is not trying to assert that the Government regard themselves as not accountable to a vote in Parliament on their general policies on our political, economic and trade relationships with the European Union for the duration of the negotiations, which will no doubt take several years?

As my right hon. Friend is apparently offering a large number of fairly innocuous debates on broad-brush motions taking note of various European subjects, is he aware that, as a result of the number of Members who will wish to speak, many Back Benchers will unfortunately find that, as things stand, they have only three minutes in which to give a detailed explanation of their views on any subject? As the Whips will have nothing to fear from such debates, will he consider inviting the House to suspend the usual time rules so that we can have some more open-ended debates? Otherwise, the Government will try to dismiss the whole thing with a series of rather farcically constricted exchanges of views.

[Mr Lidington]

I am somewhat surprised that my right hon. and learned Friend appears to have an appetite for the kind of all-night sittings that he and I went through on the Maastricht Bill some 25 years ago. I do not think that that would be the right way to have a mature debate and to reflect public interest in these various European issues. I am sure that the House will have plenty of opportunities—not just in Government time, but in many others ways—to debate all aspects of our forthcoming negotiation, but the fundamental principle is that this House voted overwhelmingly to give the British people the final say when it voted through the referendum Bill earlier this year, and we need to accept and respect the consequences of that decision.

Commons Financial Privilege

Lord Clarke of Nottingham Excerpts

Wednesday 28th October 2015 Commons Chamber

[Chris Grayling]

I have great respect for the hon. Gentleman’s experience as a parliamentarian, but he will not be surprised to learn that I tend not to anticipate the outcomes of reviews before they have even started. I said a moment ago that we would publish full details of the terms of reference and the full review panel in due course, so he will have to wait to see the full detail when we bring it to this House. There is no restraint on any Committee of this House from carrying out any inquiry that it wishes to conduct, within its remit. Lastly, on primary legislation, it is a simple fact that tax credits are classified as a benefit. They cannot be included in a money Bill. You, Mr Speaker, would not certify a Bill containing a reference to tax credits as a money Bill, so I do not know what the hon. Gentleman is talking about.

[Mr Kenneth Clarke (Rushcliffe) (Con)]

Does my right hon. Friend recall that the 2002 Act was produced by Gordon Brown precisely to keep tax credits out of a Finance Bill so that he could alter them by statutory instrument and raise them before elections without proper scrutiny? Will he confirm that the Labour and Liberal peers, having discovered that they have a large party political majority in the upper House, are using it with increasing frequency and that they have cast a vote that is totally contrary to every sensible understanding of the constitutional position for the past 100 years? Indeed, the situation is an exact replica of the Conservative peers foolishly voting against Lloyd George’s Budget.

The Lords does not vote against Budget measures. So although I welcome the advice of my noble Friend Lord Strathclyde, for whom I have enormous respect, will my right hon. Friend not delay too long before bringing forward legislation that sets out clearly what convention has previously established? If the Lords keep repeating these party political votes, it will be almost impossible to have stable government taking firm and difficult decisions for the remainder of this Parliament, when presumably they will start misbehaving with ever more frequency.

[Chris Grayling]

I share my right hon. and learned Friend’s concerns. He makes his point with his usual wisdom, and I hope very much that Lord Strathclyde will address the issues to which he refers. It is essential that these matters are dealt with. It is worth remembering that in 13 years of Labour government, the Labour party did not have a majority in the House of Lords, yet Conservative peers and others respected the conventions. It is a great shame that Labour and the Liberal Democrats clearly have no intention of respecting the conventions and will cast them out of the window, which will fundamentally change the relationship between the two Houses.