EU Withdrawal Agreement: Legal Advice

Anna Soubry Excerpts

Tuesday 13th November 2018 Commons Chamber

[Ms Angela Eagle]

rose—

[Anna Soubry (Broxtowe) (Con)]

rose—

[Keir Starmer]

I shall give way in just one minute. We are not calling for legal advice to be published in its draft form, or as it is given between now and then, or on a rolling basis.

--- Later in debate ---

[Mr Dominic Grieve (Beaconsfield) (Con)]

I am most grateful to the right hon. and learned Gentleman for giving way. I have great sympathy with the anxieties he is expressing about the legal issues surrounding the potential backstop, but surely he would agree with me that the proper practice is for the Government, at the conclusion of negotiations, to publish a document setting out the Government’s position on the law, and, if I may say, if that differs from what the Attorney General has advised, I would expect the Attorney General to resign forthwith.

[Anna Soubry]

rose—

[Keir Starmer]

I will give way to the right hon. Lady, and then I will deal with both interventions.

[Anna Soubry]

I thank the right hon. and learned Gentleman for giving way. Can he help us with this? Is this a motion that was drafted by the Office of the Leader of the Opposition, which has subsequently been changed quite dramatically at the Dispatch Box? Is it an intervention, yet again, by the shadow Secretary of State to make good the failings of the leader of his party?

[Keir Starmer]

As the right hon. Lady knows, I have great respect for her, but I really do not think that engaging in that kind of intervention is helpful in this serious debate.

In relation to the intervention of the right hon. and learned Member for Beaconsfield (Mr Grieve) and the general point, my response is this: this issue of the disclosability of legal advice has been discussed very much in the past two or three weeks. As soon as I started calling for it, I made it very clear, when I was pressed as to what procedures we would use to try to obtain the advice, that I did not want to use any. I invited the Government to indicate that they would disclose the advice in full rather than have this fight in the House, and therefore I declined, three weeks ago, to say what procedure we would use. I wanted the ball to be in the Government’s court. I wanted the Government to see the good sense in putting the legal position before the House, for all the exceptional reasons that have been set out, and the Government have not responded in kind. That is why we are here today with this Humble Address.

--- Later in debate ---

[Mr Dominic Grieve (Beaconsfield) (Con)]

Thank you, Mr Speaker. I shall endeavour not to repeat what has already been said and to be brief.

First, I entirely understand the motivation that has led the Opposition and the right hon. and learned Member for Holborn and St Pancras (Keir Starmer) to bring this motion before the House. I have, on a personal level, every reason to be deeply concerned about the legal implications of any potential Brexit deal. We have heard enough in the last few weeks to give rise to even greater concern about how it will affect our independence, the integrity of the United Kingdom and our ability to hold it together, and the power of Government in future to take independent decisions and not be fettered by a subsequent treaty to the one we are going to be leaving on 29 March, as well as a concern that those issues may come to a conclusion without being fully understood when we have to vote on them.

I have no idea whether the so-called leaked memo that came out a short time ago was correct or not. If it did come from within the Government, it suggested, frankly, a quite disgraceful timetable by which, on the conclusion of negotiations, the House would be bulldozed into starting a five-day debate and coming to a decision without, on the face of it, even time, as it seemed to be set out, for the Government to set out their position, which I would normally expect to be in a White Paper and supported by the Government’s full legal evaluation of the treaty changes taking place. It is often forgotten that in leaving the EU we may be getting rid of the European Communities Act 1972, but when we come on to consider the EU withdrawal agreement Bill, if we get to that point, we are going to be enacting a piece of constitutional legislation of immense importance which has huge significance for United Kingdom citizens living in Northern Ireland and the potential to give rise to great public disquiet. For all those reasons, the terms of the agreement we hope we reach will be of the utmost importance. In a nutshell, there is a big difference between a break clause and a review clause, as any lawyer will know, and it will be of the utmost importance to understand on which side of the line any Northern Ireland backstop lies.

That said, I have to say to the right hon. and learned Member for Holborn and St Pancras that the course he has sought to press this afternoon is a mistaken one. This goes to the very heart of the relationship between the Law Officers and Government. They are, as he knows, there to stand rather aside from the day-to-day thrust of politics. Indeed, it is noticeable that in recent weeks I should think it has been a nightmare for the current Attorney General. If he goes to have pizza with the Leader of the House, it is immediately assumed that he is siding with one faction within Government rather than another, something that has to be avoided at all costs. He has to maintain his independence. Above all, he has to speak truth to power. That is the absolutely fundamental part of his job.

[Anna Soubry]

Does my right hon. and learned Friend agree that at best, given the great force with which he speaks as a former Attorney General, the motion should be defeated and we should not be voting for it? Does he share my concern that I have been told I should abstain on this matter? I do not know why. I suspect it is because there is no majority. If that is the case, who is running the country: this Government or the European Research Group?

[Mr Grieve]

I understand my right hon. Friend’s point. It will be a matter for the Government to determine how they wish to respond at the end of the debate. What I will seek to do now is to set out the reasons why I think the approach the Opposition have taken in the motion is mistaken, and I want to conclude as quickly as possible.

The Attorney General has to speak truth to power. In doing that, he must be in a position to produce legal advice to the Government which is there for their consumption. By demanding that it should be published, we are immediately beginning to skew that process, because it will be prepared with a view to publication. The right hon. and learned Member for Holborn and St Pancras made the point that there may be a difference between advice about what is lawful and a survey of what a treaty adds up to in terms of the obligations it places on this country. I would not be at all surprised if, for example, in the course of doing that the Attorney General might not have to respond to questions that have been transmitted to his office through Cabinet Ministers with queries which, although they may be irrelevant to his advice, might pertain to what had been said in the course of an international negotiation with a third party and therefore would be something we would not wish to put into the public domain. We cannot predict how such advice will be put together.

It seems to me that that precisely highlights why one should distinguish between advice that is produced by a Law Officer, subject to the usual rules of legal professional privilege—I agree with the right hon. and learned Gentleman that if it starts to be published partially it has to be shared with everybody; on that we all agree 100%—but that should be compartmentalised away from what we should be getting from the Government, which is a full statement of the Government’s legal analysis and their collective position. Doubtless, it will be heavily informed by the Law Officers’ advice. As I said, not entirely tongue in cheek, if the document setting out the Government’s legal position and their evaluation of the implications of the treaty is at variance with what the Attorney General has been saying to the Cabinet in informing them as to whether to accept the decision or not, I would not expect the Attorney General to still be in post by dusk that evening. It would be his clear duty to leave office immediately, because he could not continue to work as a Minister within the Government.

I therefore believe, particularly in the light of the assurances given by the Chancellor of the Duchy of Lancaster and Minister for the Cabinet Office, my right hon. Friend the Member for Aylesbury (Mr Lidington), that in those circumstances and with the assurances he has provided, the House is now beginning to get the reassurance it requires that, first, this process, when it comes to a deal, will be taken in a measured and sensible way, and with a full opportunity for Members to consider the legal implications properly; and secondly, as I suggested, a Law Officer, who customarily can sit on the Government Benches and intervene in debate does so as we go through the Bill to clarify points that may need clarification. That used to be done all the time. I tried to restore it, but for various reasons it seemed to have gone out of fashion when I was in opposition. My hon. and learned Friend the Solicitor General has been pretty assiduous at doing that, and the Attorney General can do it too. That should lead to the House having all the information it needs without breaching a convention which in my view, for the very reasons I have just heard also apply for the Scottish Government, is really important. I do not think it is necessary or desirable that we should be considering such a breach for the purposes of reaching the proper conclusion to these very important debates.

I simply urge the House to consider carefully what has been said and express the hope that it will be possible to proceed in a way that does not breach what I think is a really fundamental and important convention. As I know from my time as Attorney General, it is of the utmost importance that the dialogue between the Law Officers and Government, whom they are there to serve, can be carried—