Privilege (Withdrawal Agreement: Legal Advice)

Chris Bryant Excerpts

Tuesday 4th December 2018 Commons Chamber

[Chris Bryant (Rhondda) (Lab)]

Your wisdom, Mr Speaker, in always making that point just before you call me is shared by the whole House, I am absolutely sure. So we are all united now and everybody can just agree with what I am about to say.

Although I sympathise with the arguments made by the Father of the House and for that matter with the points made by the hon. Member for North East Somerset (Mr Rees-Mogg), I disagree with the conclusion to which they have come. I am delighted that the motion does not mention the Attorney General by name because I do not think this is a matter of the Attorney General being a dishonourable man at all. I am very fond of the Attorney General. I think he is a wonderful man. I think he is entirely honourable and, yesterday, he did his level best in the Chamber to provide what he thought he could, within the terms and the strictures given to him by the Government. However, I would say that we are today facing an extraordinary moment. I cannot in the history of Parliament find a moment when the Government have referred themselves to the Committee of Privileges. The best argument they have today, in response to the motion moved by my right hon. and learned Friend the Member for Holborn and St Pancras (Keir Starmer), is—“Instead of deciding already on the House’s behalf that the Government are in contempt, we will refer it to the Committee of Privileges.” Always in the past, that has been to decide, prima facie, that there is a case to answer. So the Government themselves accept at the very least that there is a case to answer about their being in contempt. I cannot think of another moment in our history when that was true.

In fact, as several Members have already said, the Attorney General himself in a sense confessed his own guilt to the charge of contempt yesterday. He said on the motion for the debate we had previously:

“We should have voted against it.”—[Official Report, 3 December 2018; Vol. 650, c. 579.]

Of course we should have done. It would have been good if the Government had made in the debate back then all the arguments they are making today and made yesterday afternoon. Some of us might have listened to the argument about national security then. It might have been an appropriate argument then, but it was not an appropriate argument yesterday and, for that matter, it is not an appropriate argument today.

The Attorney General repeated time and again yesterday that he knew he was not fulfilling the will of the House. That is what we are asked to decide today—whether the Government are fulfilling the will of the House. He himself said yesterday that he was not fulfilling the will of the House. In an extraordinary moment, he said:

“The House has at its disposal the means by which to enforce its will.”—[Official Report, 3 December 2018; Vol. 650, c. 574.]

That is what we are doing now. To all intents and purposes, the Attorney General yesterday asked us to do what we are doing this afternoon and I think he fully accepts that the House has to be able to have its way in the end.

I say to the right hon. and learned Member for Beaconsfield (Mr Grieve) and the hon. Member for North East Somerset, the other thing that is extraordinary about the motion before us—the Opposition motion, supported by the other Opposition parties—is that there is no sanction involved in it. In fact, the only thing it requires to happen is that the will of the House is abided by. That is the only thing. It may be that we have to return to this if the Government choose to ignore it, but my suspicion and hope is that, if the Opposition motion is carried today, the Government will say, “Alright. Fair do’s. That’s twice we’ve been told now. We do actually have to abide by the decision of the House.”

[Mr Rees-Mogg]

Could the hon. Gentleman help the House by explaining what the next step would be if the Government did not then publish the information and what procedural effect could be had or what motion could be brought forward to follow up on the motion before the House today?

[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.

[Sir Oliver Heald]

The hon. Gentleman knows that our Committees often ask for papers and sometimes the response to such requests is to say that the documents are legally professionally privileged. In those circumstances, the House tends to use a bit of discretion and common sense and often an agreement is reached about exactly what is to be disclosed. Is not that what is needed here?

[Chris Bryant]

It would have been interesting if the Government had made that argument, but they did not. They made no argument—they allowed the motion to go through. If they had said in the meantime, for example, yesterday afternoon, “We will provide the document that you want. We’ll give it to the Chair of the Exiting the European Union Committee, which has a majority of Conservative Members, and it can decide what should be in the public domain”, I think the House would have been content. That would have been a perfectly logical process to adopt, but the Government have not done that. Perhaps they will do it later today if they lose the motion—I do not know.

Let me consider the important substantive point. Can the House require the Law Officers to provide their legal advice to Parliament? It is important that Select Committees can require documents of all sorts of people outside Parliament, and it is difficult to enforce that if we cannot even require documents of Ministers. Yesterday, the Attorney General referred several times to “previous editions of ‘Erskine May’” to show that “the motion to return” is traditionally always

“confined to documents of public and official character.”—[Official Report, 3 December 2018; Vol. 650, c. 563.]

That was his argument for saying that “Erskine May” did not really allow for Law Officers to provide anything that was sought by the House, even though the current 24th edition does exactly that. He suggested that the 22nd or the 23rd edition had changed the rule and that we should return to a previous version.

Perhaps the Attorney General was referring to the 10th edition of “Erskine May”, which, as I am sure the hon. Member for North East Somerset knows, came out in 1893. In that, the traditional version of this doctrine, which I think the Attorney General meant, is laid out:

“The opinions of the law officers of the Crown, given for the guidance of ministers, in any question of diplomacy or state policy, being included in the class of confidential documents, have generally been withheld from Parliament.”

I think that the Attorney General believes that that should still be the case, although that has been superseded. Unfortunately for the Attorney General, “Erskine May” goes on to say:

“In 1858, however, this rule was, under peculiar and exceptional circumstances, departed from, and the opinions of the law officers of the Crown upon the case of the Cagliari, were laid before Parliament.”

I will not go into the instance—I know that hon. Members are saddened by that.

The point is that, when the House has required that the Law Officers provide the information, they have always done so. The Attorney General’s argument therefore does not stand.

[Michael Tomlinson (Mid Dorset and North Poole) (Con)]

That also appears in the 17th edition of “Erskine May” from 1964, to which I will refer if Mr Speaker calls me. In the case to which the hon. Gentleman refers, in the middle of 19th century, the Minister voluntarily gave that advice, which was not demanded by the House.

--- Later in debate ---

[Chris Bryant]

It was required by the House. Indeed, it was required by the House of Lords and the House of Commons. The point about the 1893 version, which survived for a while, was that the information was provided

“under peculiar and exceptional circumstances”,

but they were peculiar and exceptional in a remarkably similar way to the current case, because the information dealt with international treaties and the relationship between other countries in Europe.

The House must surely be able to require documents. Just as the Speaker is the servant of the House, so in the end, the Government have to bow the knee to Parliament. It is not good enough for the Government to say, “You’re all wrong; you’re benighted; you don’t understand the full implications. We, the Government, are the only people who have seen the whole truth and understand the security implications.” If they want to find some other arbitration method through the processes of the House, such as a Select Committee, that is fine, but that is not what they have done.

In the end, we reach the simple point, which I do not think a single one of my constituents would understand: the Government look as if they are trying to keep something secret; the Law Officers want to say one thing in private, in Cabinet, and another in Parliament. That is not to accuse anybody of hypocrisy. It is simply to say that my constituents would not understand why the Government would want to keep the information secret. I say to Government Members: one day, you will sit on the Opposition Benches and if you vote against this being contempt and therefore against requiring the Government to produce the documents, that power will be gone forever.

[Several hon. Members rose—]

--- Later in debate ---

[Robert Courts]

I am grateful to the right hon. and learned Gentleman for making that point. Of course, he has considerable experience in those matters, but we are dealing here with a wholly different consideration. He deals with circumstances in which he has been subject to a court order, which brings me precisely to my point. No doubt he will say to me that Parliament is a court—it is the high court of Parliament, the highest court in the land—and I accept the force of that point, but the court before which he has been used to appearing, and the court before which I have been used to appearing at the Bar, has a procedure for dealing with such matters that we do not have here.

A number of Members have already referred to the Freedom of Information Act, which contains exemptions for certain purposes. The right hon. and learned Gentleman will also be aware of public interest immunity applications, which are made when cases are being prosecuted, and a judge can look confidentially at documents and there can be redactions and so forth. None of that applies here, because this procedure is not designed for the purpose for which it is being employed by the Opposition. There simply is no mechanism for this procedure to deal with issues of the gravity of those with which we are dealing now. To its great credit, the Government’s proposal offers a way of looking at that.

[Chris Bryant]

When I sued Rupert Murdoch for hacking my phone, the court required him, under the Norwich Pharmacal procedures, to provide all the documents. His team legally had to do so, because if they did not, they would be in contempt. That is an exact parallel of what is happening here.

[Robert Courts]

The hon. Gentleman is right—he makes a good point— but he is referring to something wholly different. He is referring to disclosure, not the waiving of privilege. Any Member—[Interruption.] I am sorry, but they are wholly different concepts. I did not wish to sound patronising to the hon. Gentleman, but, as any lawyer—including those on the Front Benches—will realise, legal privilege is protected. That is totally different from the disclosure of relevant documents, when someone is expected by a court to disclose documents that can assist the other side. For example, the prosecution may be expected to disclose documents that undermine its case or could be reasonably expected to assist the other side’s. There are procedures laid down in law, through practice and regulation, which deal with those circumstances. They do not apply here, because they do not exist, and they do not apply with regard to legal privilege. That is the crucial difference. There is no mechanism to weigh, under the Humble Address procedure, all the subtle points that we have been discussing today.

I will end my brief remarks by making the point that the Attorney General has come down to the House and spent two and a half hours answering questions—