Privilege (Withdrawal Agreement: Legal Advice)

Andrew Murrison Excerpts

Tuesday 4th December 2018 Commons Chamber

[Mr Rees-Mogg]

Because the Government have tabled an amendment that I feel I can support—[Interruption.] We are not in pantomime season quite yet. [Hon. Members: “Oh yes we are!”] All right, I give in on that one. I am defeated on that particular point, but not on the substantive one.

I am happy to support the Government’s amendment, because I think it is right that a Committee of this House look at the issue in broad terms. It may be right that the House wishes to take a self-denying ordinance on the extent of Humble Addresses. It may be that we would like to say specifically that they would be deemed disorderly, and therefore not tabled, if they related to matters concerning the security services or other types of information where there would be a broad consensus that those matters should not be brought forward. The ability to demand papers could require—dare I say it?—that the tax returns of Opposition Members be brought to the House—[Interruption.] Mine would be of so little interest that I cannot imagine it happening. That would be a clear abuse of the precedents that we have. So it may well be right that the Privileges Committee should consider broadly how Humble Addresses should be used to ensure that they are effective, because currently they ought to be effective and the Government ought to abide by them.

[Dr Andrew Murrison (South West Wiltshire) (Con)]

I am following my hon. Friend’s remarks with a great deal of interest. He will know, since he is an expert on “Erskine May”, that it says very clearly on page 168, from memory, that the Humble Address should not normally be used on matters that touch directly on Bills before Parliament, as this clearly does. So was the Humble Address being used correctly, in his view, or incorrectly?

[Mr Rees-Mogg]

I am sorry to say that my hon. Friend is not quite right. There is not a Bill before Parliament on this issue—there is a motion before Parliament on this issue. Those two things are clearly separate matters that are not to be confused. I have no doubt, Mr Speaker, that had a Humble Address been brought forward on a Bill before Parliament, it would have been ruled disorderly and therefore would not have been a subject for debate. For the benefit of the Hansard reporters, Mr Speaker is nodding, and I therefore hope that this can go into the record as an authoritative reply.

I have one concern about the reference to the Privileges Committee, and that is of course that the Attorney General is himself a member of that Committee, though a non-voting member who does not affect the quorum.

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[Geraint Davies]

Yes, that is precisely right. What the House wants is the complete legal arguments on either side of the debate on the EU withdrawal agreement. These are difficult issues; we all accept that, and we are all grown up. They might say, “Well, there are all these things about national interest, negotiation and security,” but people are not interested in that. We want the full facts. I have made some simple legal points that show the full debate has not occurred.

[Dr Murrison]

Is the hon. Gentleman interested, like I am, in legal advice given to the European Commission and its negotiators by its lawyers, which presumably the European Commission would like to be privileged in the same way as advice to the Cabinet is? Has he interested himself at all in that side of this negotiating process?

[Geraint Davies]

Yes, I am sure we would all be interested in that if it were available, but the issue on the table is whether the Government are in contempt, and there is reason to believe they are in contempt, because a lot of the legal arguments are simply being taken out.

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[Dr Andrew Murrison (South West Wiltshire) (Con)]

A number of interesting things have come out during this debate about our general procedures and our way of handling matters of the sort we have been discussing—in relation to procedures and privileges, and the nature of the Humble Address and whether it is an appropriate vehicle for advancing Labour’s essentially political aims. I think there is one thing on which we can agree: we need to find a sensible way forward, and it seems to me that the Government’s amendment, although not perfect, is a sensible way through this particular conundrum. The Government are clearly not in principle averse to being as transparent as possible, but they have to safeguard the national interest. My right hon. and learned Friend the Member for Rushcliffe (Mr Clarke) made a sensible suggestion, as one would expect, on the use of Privy Councillors to examine this matter. Of course, we have the Privileges Committee, which is up and running already. As a number of right hon. and hon. Members have said, although it is imperfect for the purposes of examining this issue, it is at least there and we could at least support that in determining whether the very serious charges of contempt are reasonable or not.

We have to understand that some serious allegations have been made. Lawyers and legislators understand full well what contempt is. The general public probably think that it means something rather different, and they can be forgiven for that. Contempt is a very harsh term. If it is associated with individuals—I am not suggesting that the Attorney General has necessarily been associated with this, but Ministers have been—and it sticks, that is very serious, even if we have not decided yet what the penalty might be. Of course, when this language was being got up hundreds of years ago, the penalties may have been very severe indeed. Mercifully today, that is not the case, but we have yet to determine what happens if individuals are found to be in contempt. That is left uncertain, but one thing that we can agree on is that this is a very serious allegation to make and the consequences are potentially significant, so we have to get this right. Simply to use an arcane measure such as the Humble Address to make this determination, untrammelled, seems unfair to me.

If we accept that this is a rather archaic vehicle, which is more traditionally used not for legislation or things that might lead to legislation, but for providing gifts to Commonwealth countries, as suggested in “Erskine May”—which I cited in my intervention on my hon. Friend the Member for North East Somerset (Mr Rees-Mogg)— we must also accept the possibility of using a measure that is not ideal for determining this issue, and that, in my view, means the Privileges Committee.

[Mr Jim Cunningham (Coventry South) (Lab)]

Does the hon. Gentleman agree that what has upset Members on both sides is the fact that the Government several times now have ignored the will of the House? That has antagonised a lot of Members.

[Dr Murrison]

The hon. Gentleman is right. The difficulty is that a court of law has available to it a judge who can determine what may be disclosed. The Freedom of Information Act, passed fairly recently, put significant constraints on what may be disclosed and gave powers to the Information Commissioner to use their discretion to permit, or otherwise, information to enter the public domain. We do not have that here.

The Government are mindful not only of potentially setting a precedent, but of the very real possibility that in the advice given—in this case, by the Attorney General—there might be something that is embarrassing to this country internationally or which has security implications. It is irresponsible of the House not to recognise that dilemma, which the Government now face. They are trying to reconcile their duty to be as candid as possible with their duty to safeguard the public interest, and specifically the interests of individuals who might be adversely and directly affected by such a disclosure.

On contempt, it is appropriate to dwell for one moment on the nature of the advice the Attorney General gave to the House yesterday. Nobody in this place could fail to have been impressed by his candour, and it seems wholly inappropriate to associate the word “contempt” with anything he said.

I have grave reservations, as a former Minister in the Ministry of Defence and the Northern Ireland Office, about the impact that this could have on the disclosure of sensitive information. I am worried about that, knowing what I do about the nature of some of the material that the Government would like to keep unto themselves. It has nothing to do with the precedent in 2005 cited today in relation to the Iraq war, where it came two years after the event and dealt with whether the Government had behaved lawfully. That is not a question facing the House today—clearly the Government are behaving lawfully—so the two cannot be compared or contrasted in any way. The Government amendment is a sensible and pragmatic way forward that reconciles the House’s desire for openness and transparency with their legitimate desire to ensure that they put nothing in the public domain that might harm individuals or set a dangerous precedent.

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[Robert Courts]

I am grateful to my hon. Friend, who, as always, makes an excellent contribution. It is normally the case that the client has the ability to waive legal advice if they wish, but, in the case of Government Law Officers, there clearly is another layer to that, and their position is of enormous importance.

The Government’s amendment is the correct, cool, calm way to look at this matter. We are in uncharted territory. The very fact that we are all discussing constitutional and historical precedents today means that we all ought to avail ourselves of more time in which to study those in detail so that the Privileges Committee can consider the real constitutional and historical ramifications of any decision we take.

To be honest, there are a number of questions to which I do not know the answer. Does a Humble Address trump privilege? It would be helpful if somebody were to look into that and consider it. I do not think there is a straightforward answer because I do not think it has ever been tested—I may be wrong. My point is that a period of cool, calm reflection on such points would be of benefit to everybody in the House. Further, where does the line fall in terms of disclosure? Is there a question of redacting elements of advice? If so, where does the line fall?

Many Members will be clear that the line falls when we are talking about national security—that is relatively straightforward perhaps—but what about the national interest? It is not so easy to define, but it is something that we ought to consider carefully before rushing into what are extremely serious matters, not just of party politics—although of course there is a big element of that in this—but of constitutional and legal theory and practice that could have profound consequences for any Government. The Opposition ought to be aware that at some stage—I hope not for a long time—they might be sitting on these Government Benches and should consider the position they would wish to take.

[Dr Murrison]

Is my hon. Friend interested, as I am, in the position of the European Commission? A number of right hon. and hon. Members would be interested in the advice given to the European Commission by its legal service. I suspect that it would take a very dim view of any request that might prejudice the position taken by the Commission’s negotiators.

[Robert Courts]

My hon. Friend makes an excellent point. In the middle of a negotiation, in any discussion that by necessity is high profile and tense, any disclosure of advice that might undermine a negotiator is clearly to be regretted. The Commission will have its legal advice, and we might like to see it, but there is a good reason why we cannot see it and why the Commission should not be able to see ours.

The Government are approaching this matter in a better way than the Opposition’s motion because, as hon. Members have mentioned, they have used an archaic procedure. It was not designed to deal with this situation. [Interruption.] I hear an hon. Member say the whole House is archaic. The whole House is old and historic and flexible, but this procedure has not been used for many years and is not designed for a matter of such sensitivity. It is designed for the production of documents, not legal advice