EU Withdrawal Agreement: Legal Advice Debate
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Keir Starmer
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(5 years, 5 months ago)
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Keir Starmer (Holborn and St Pancras) (Lab)
I beg to move,
That an humble Address be presented to Her Majesty, that she will be graciously pleased to give directions that the following papers be laid before Parliament: any legal advice in full, including that provided by the Attorney General, on the proposed withdrawal agreement on the terms of the UK’s departure from the European Union including the Northern Ireland backstop and framework for a future relationship between the UK and the European Union.
I will go into the details of the argument in just a moment, but may I first attempt to set out the context for today’s debate? Last December, the Government signed the joint report—the phase 1 agreement. It contained a number of important points, including, of course, in relation to Northern Ireland. I remind the House that the phase 1 agreement committed us, first, to maintaining the north-south co-operation provided by the Good Friday agreement; and, secondly, to avoiding a hard border, including any physical infrastructure or related checks and controls in Northern Ireland. Those, of course, are commitments that will apply “in all circumstances”. The idea is for a legally binding backstop to kick in
“In the absence of agreed solutions”.
That was the commitment made, and I know the Government are solemnly committed to it.
Nigel Dodds (Belfast North) (DUP)
Does the right hon. and learned Gentleman agree that that report also made a commitment, in paragraph 50, that there would be no differences between Northern Ireland and the rest of the United Kingdom, unless it was with the agreement of the devolved legislature in Northern Ireland?
Keir Starmer
It did. A number of other important commitments were made in that agreement, but I am focusing for the moment on the two that relate to the Northern Ireland border. Since then—and it has been 11 months—a number of options have been mooted to meet that commitment. First, the EU proposed a Northern Ireland- specific backstop earlier in the year. The Prime Minister was right to point out the threats that that posed to the UK. Then, the EU proposed a UK-wide backstop, certainly in so far as a customs arrangement or union is concerned, but that runs into the problem that the EU wants an insurance measure that applies until something equally robust replaces it, whereas the UK wants a provision for unilateral withdrawal—and so that got stuck. A third option has been proposed, which is a UK-wide backstop of some sort, with unilateral withdrawal but with a Northern Ireland-specific backstop as a backstop to the backstop. After 11 months, this is unresolved.
I am not going to stand here and pretend that any of this is easy, because it is not—these are complicated negotiations and very serious commitments—but I am sure I am not the only one in this House who feels as though we have lived and re-lived the same week over and over again in the past few months. We begin the week being told, “There is going to be a deal. Cabinet meetings are scheduled. Dates are due—votes are being held in Parliament; there will be emergency summits in Brussels.” By the end of the week we are told, “Next week is decision time.” We have been going around that circuit for some time, and this can go on for only so long. The important point is this: if a deal is reached, it is proposed that the backstop will be legally binding as part of the withdrawal agreement. So it is in the legally binding part of the agreement, not the political declaration. That is a very important provision. Under section 13 of the European Union (Withdrawal) Act 2018, this House will of course be asked to approve that withdrawal agreement, or not approve it, so there is a special statutory process for this House that everybody in this House is well aware of.
On 17 October, it was reported that the Attorney General had been asked by the Cabinet to provide a full assessment of the legal ramifications of the backstop. I pause here to identify and emphasise what it is that the Attorney General has been asked to do: to provide a full assessment of the legal ramifications of the backstop. That is important for later, when I shall get into questions of privilege and non-disclosure.
Lady Hermon (North Down) (Ind)
The right hon. and learned Gentleman will be well aware that the Belfast/Good Friday agreement has particular constitutional significance for Northern Ireland. Do he and his colleagues therefore agree that it is of the utmost importance that the people of Northern Ireland understand and have sight of the legal advice given to the Government about the impact on the Belfast/Good Friday agreement of any Brexit deal negotiated by the Government?
Keir Starmer
I do agree, and I shall develop the point about why we are making an exceptional ask today. In relation to everybody throughout the United Kingdom—
Sir Oliver Heald (North East Hertfordshire) (Con)
Will the right hon. and learned Gentleman give way?
Keir Starmer
I am just answering the previous intervention.
In relation to everybody throughout the United Kingdom, but particularly those in Northern Ireland, this is an important measure, as it is to all those who represent people in Northern Ireland.
Sir Oliver Heald
I am very grateful to the shadow Secretary of State for giving way. Does he not accept that with a live negotiation continuing, the Attorney General is giving legal advice about the situation, probably with several options? That is the sort of advice that is never revealed. It is of course different if we get to the point at which a decision has been made and that decision is being presented to the House, which is when the Government would always justify their legal position, but to give away the Attorney General’s legal advice while the negotiations are still continuing would be completely unacceptable.
Keir Starmer
I understand the point made by the right hon. and learned Gentleman—I had the privilege of working with him when I was Director of Public Prosecutions—and I shall address that directly, because I do understand the distinction between legal advice that is being given in real time and legal advice that may come to be given when a backstop is agreed and presented. [Interruption.] I will address that directly to make it absolutely clear what we are asking for, but I recognise the distinction that is being made and shall address it in due course—
Sir Desmond Swayne (New Forest West) (Con)
But even on the basis of that distinction—
Keir Starmer
Perhaps it is better if I actually get to the distinction between real-life legal advice given in real time and the sort of advice that may be presented when the deal is being put to Parliament. I will deal with it, I am well aware of it and I know the distinction between the two. If I duck it, I am sure to be challenged later. Let me make some progress.
The chronology is this: as I said, on 17 October the Attorney General was asked by the Cabinet to provide a full assessment of the legal ramifications of the backstop. A few weeks later, on 6 November, it was reported that the Cabinet had been provided with a summary of the Attorney General’s advice on the options for the backstop. It was also reported that the Secretary of State for Environment, Food and Rural Affairs wanted to see the advice in full. There is no doubt that there will be final legal advice if the Government are able to reach an agreement with the EU. It is that final advice that we want to see, and I shall develop precisely what I mean by that in just a moment.
Keir Starmer
Just like the Environment Secretary, we want to see it in full. Let me make it clear: we do recognise and understand the convention that Government legal advice should normally remain confidential, and that in ordinary circumstances it would not be appropriate to publish full advice, for good reason. But today I wish to make four points as to why in this case that convention should not apply. I shall summarise them and then develop them. The first is the unprecedented nature of the Brexit decision. It is both legally and technically complex and it is of huge importance across the United Kingdom. This is not just another vote.
Keir Starmer
As I will set out, successive Governments have waived the convention against non-disclosure in exceptional circumstances, and these are clearly exceptional circumstances. That is the first reason.
Secondly, the nature of the advice we are asking to see is general and different from other advice that the Law Officers give. That is important when we consider the convention on confidentiality and legal professional privilege.
Thirdly, although legal professional privilege can attach to legal advice given by the Law Officers, it operates differently in relation to their advice from how it operates in relation to the advice of other lawyers. I shall develop that point.
Fourthly, what cannot be allowed to happen is that the advice, or bits of it, are shown to some Members of Parliament outside Government and not others, in order to persuade them about the deal or the backstop. In other words, once the disclosure goes beyond the Government, or in this case the Cabinet—if it does; I am not suggesting that it has at this stage—it must then be made available to everybody.
Ms Angela Eagle (Wallasey) (Lab)
Will my right hon. and learned Friend give way?
Keir Starmer
Let me just make this point, because I have been challenged on it twice. It is a fair challenge and I need to meet it.
What we are calling for today is the publication of the final advice provided by the Attorney General to the Cabinet concerning the terms of any withdrawal agreement. The final advice. [Interruption.] I am making clear what we are asking for. I am at the Dispatch Box, I am on record, and I know precisely the importance of the words that I am now putting on record.
We are calling for, first, the publication of the final advice provided by the Attorney General to the Cabinet concerning the terms of any withdrawal agreement; secondly, that this should be made available to all MPs; and thirdly, that it should be made available after any withdrawal agreement is reached with the EU, but in good time to allow proper consideration before MPs are asked to vote on the deal. So, it is the final advice, it is available to every MP, and it is available at the point at which the final proposed withdrawal agreement that has been agreed with the EU is being put to this House for this House to consider.
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.
Kevin Hollinrake
On a point of order, Mr Speaker. I seek clarification, because presumably we are going to be asked to vote on the motion on the Humble Address, which clearly says,
“that the following papers be laid before Parliament: any legal advice in full”.
It says “any legal advice”, yet the shadow Secretary of State is now defining the legal advice that he wants to present. What are we to vote on, Mr Speaker?
Mr Speaker
Order. I am extremely grateful to the hon. Lady. It might profit her and all Members of the House if they listen to the development of the argument in which the shadow Secretary of State is engaged. Frankly, it is not really very confusing at all. There is a motion, and Members can read the motion and form their own view of it. People can presumably listen to a speech and form their view of the speech. In fact, it is really so very simple that only an extraordinarily clever and sophisticated person could fail to grasp it.
Keir Starmer
Let me clarify the position, and then, as I indicated, I will give way. Just to be clear: it is the publication of the final advice provided by the Attorney General to the Cabinet concerning the terms of any withdrawal agreement; and that this be then made available to all MPs after any withdrawal agreement is reached with the EU and in good time before MPs are asked to vote on the deal. As for the way in which I put the case, when I last dealt with the Humble Address it was in relation to the impact assessments. I made a number of points from the Dispatch Box that were important to how that was handled afterwards and the agreement that we reached with the Government.
Ms Angela Eagle
I thank my right hon. and learned Friend for giving way. Does he agree that the unprecedented nature of the meaningful vote that this House will have in the event of a withdrawal agreement being made makes it imperative for those of us who have to make that decision to have access to the Attorney General’s best view and his legal advice as to what the implications of that decision are?
Keir Starmer
I completely agree. The first argument that I will develop is that this is an exceptional case. There is a convention against non-disclosure; I accept that. There are exceptions to it, and if ever there was an exceptional case it is this.
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.
Several hon. Members rose—
Keir Starmer
I will press on, because the first point that I need to make is that this is an exceptional case—in other words, there is a rule or a convention, and there is an exception to it. First, of course, there is the unique importance of the peace process in Northern Ireland, which plenty of Members have experienced at first hand. There are politicians throughout the House who played an important part in that process. I had the great privilege of working for the Northern Ireland Policing Board for five years in Northern Ireland, where I saw for myself the progress that had been made and the ramifications of the Good Friday agreement. That was of unique importance.
Allied to that is the central importance of the withdrawal agreement itself. That critical document will determine the future relationship between this country and the EU, and it will be legally binding not just in international law, but, it is proposed, in domestic law through the EU implementation Bill. Therefore, the withdrawal agreement will not just be discussed in this House but will become international law and part of our law—a hugely important, exceptional case.
There is, of course, the special procedure in the House, to which I have already alluded, now reflected in section 13 of the European Union (Withdrawal) Act 2018. It is very unusual for us to have that legislative process for a motion on the deal. As has been said, it is critical that Parliament is fully informed of the details and the Government’s thinking. I know that the Government recognise that. They know that all material and detail should be put before the House so that it can consider the withdrawal agreement and future relationship carefully. In the 2018 White Paper, “Legislating for the withdrawal agreement between the UK and EU”, the Government committed to providing “appropriate analysis” before the meaningful vote and went on to say that this information
“will ensure that Parliament can make an informed decision about the implications of our new relationship with the EU in all areas.”
I readily accept that that was in the context of requests for impact analyses, but the same point applies: if we are to make a decision of this importance, it must be an informed decision, and that means that the details in every respect must be put before the House.
There is, of course, precedent for the Government publishing legal advice—albeit, I accept, in different and limited forms. The first is the Iraq war. I remind the House that, prior to the invasion of Iraq in March 2003, the then Attorney General set out in a written question in the House of Lords his views of the legal basis for the use of force against Iraq. He did not publish the full advice before the Commons vote to approve military action, even though many individuals, including me, felt that he should have done so on an issue of that importance.
Importantly, though, in April 2005, the Government did publish the Attorney General’s final advice to the Cabinet on the legality of the war with Iraq. I think there is general agreement now—there is certainly a majority view—that the Attorney General should have provided in 2003 the full advice that he finally produced in 2005, because the decision was so important. Therefore, there are exceptions to the convention in exceptional circumstances.
There is further precedent of advice being made available in the case of other military conflicts. For example, in November 2015 the then Prime Minister set out his justification for military action, including the legal basis, before the House was asked to approve action in Syria. I accept that what he did not make available at that stage was the full advice, but it is a clear precedent for the publication of details before a vote. In other words, when the House is coming to an important moment and making a decision of this kind, the convention of non-disclosure is open to exceptions. This is clearly an exceptional case.
Secondly, the nature of this advice means that it is not the same as other advice that the Law Officers give. The advice here is about what the proposed provisions in a treaty mean, and that is different from the advice that the Law Officers often give. The right hon. and learned Member for North East Hertfordshire (Sir Oliver Heald) may recall that, when he was Solicitor General, he gave a lecture on this very topic and set out that the core function of the Law Officers in giving their usual advice was to ensure that the Government and the Ministers act lawfully. That advice is given, as I and many other people in this House know, on a regular basis, and there are reasons why confidentiality has to be attached to it. It is, by its nature, advice to the Government, or even to individuals, on whether they are acting lawfully. They may often be in a position where somebody wants to challenge them directly about the legality of what they are doing. In those circumstances, the rule of non-disclosure applies.
The advice that would be subject to this motion is a fundamentally different type of advice that the Cabinet is seeking, because it is about the general interpretation of an important provision in the treaty, I assume so that the Cabinet can be assured about how it would work. Equally, the House could be assured about how it would work.
Sir Oliver Heald
The point I am making to the right hon. and learned Gentleman is partly about the sequence of events. At the point where the Government have made an agreement and the matter is being put to the House, clearly the Government will need to be able to justify their legal position and what they believe the agreement means. But at this stage advice is being given, no doubt on a range of options, and often the question whether something is lawful is also a question of how arguable a particular position might be, what the various options are, and perhaps what the Solicitor General or Attorney General thinks is the best option legally. Those points should not be in the public domain. It is the final legal position that should be made clear.
Keir Starmer
I am grateful for that intervention, which builds on our previous exchange. I agree; this is in relation to the final advice about the interpretation of the proposed withdrawal agreement and in particular any backstop arrangement that may be put in place.
Vicky Ford (Chelmsford) (Con)
I am deeply unclear—are you asking for publication of the final advice or of any legal advice in full that has happened during the entire negotiation? [Interruption.] With due respect, I am being asked for my vote regarding the motion on the Order Paper. Are you asking for what is on the Order Paper, which is,
“any legal advice in full”—
that is, during the whole negotiation? Are you asking me to vote in—
Mr Speaker
Well, I am making a judgment that the right hon. and learned Gentleman has heard the thrust of what the hon. Lady has said. I am not debating that point with her. If she wants to intervene again in due course, she can try to do so, but perhaps she would do me the courtesy of acknowledging that I do know how to chair in this place. I call Sir Keir Starmer.
Keir Starmer
No, I will not. I have barely started responding to the hon. Lady’s last intervention.
I have set out clearly three times—not for the sake of an intervention, where there is an element of deliberately not listening, but for the benefit of the House—precisely what we are asking for, and I do not think I could be any clearer.
Mr Jim Cunningham (Coventry South) (Lab)
Like a number of other Members, I was here when we got legal advice over the war in Iraq, so when the Government come back with their proposals—regardless of the wording of the motion on the Order Paper—I will want to know whether what we are doing is legal. That is the important point for me.
Keir Starmer
I am grateful for that intervention. I think that everybody across the House will want to know the legal ramifications of the decision that we are being asked to make, which is precisely why this advice should be disclosed at that stage.
I will now develop my third point, which is that legal professional privilege operates differently in relation to the advice of Law Officers than it does to other lawyers. That is an overlooked legal point, but an important one. Let me give the House two examples. First, legal professional privilege applies in ordinary civil litigation, but in general the Government waive that privilege when advice is central to the importance of the case and withholding it might prevent the court from reaching a conclusion that is fair and in the overall public interest. The ordinary rules of confidentiality that apply to all legal proceedings are waived as a matter of convention by the Government even when they are engaged in civil litigation, which is where such rules would be at their height, if they would prevent the court from reaching a conclusion that may not be fair or otherwise in the public interest. In other words, there is a public interest element that comes into the operation of privilege when it applies to the Government.
Keir Starmer
I see the Solicitor General agreeing; he knows this because he operates this way all the time in the advice that he provides.
The second example is that section 42 of the Freedom of Information Act 2000 provides an exemption for the disclosure of information from the Law Officers that attracts legal professional privilege, but it only applies if the public interest in withholding outweighs the public interest in disclosure. In other words, there is an overriding public interest test in relation to advice provided by the Law Officers that does not apply in the same way to lawyers in private litigation.
My fourth point is a very important one. Confidentiality and privilege can justify non-disclosure, but what the Government cannot do is waive the rule for some MPs and not for others. There are a number of important individuals and groups of MPs whom the Government may well find themselves wanting to persuade to back their deal. In order to do so, they might be tempted to share the advice with those individuals to persuade them of the legal ramifications of the backstop.
I know that the Democratic Unionist party in particular—and everybody who represents anybody in Northern Ireland—is very concerned about that for obvious reasons, and I think I am right in saying that its Members have called for the legal advice to be published. It is acutely important to those in Northern Ireland, but I say to the Government that it cannot be acceptable to share the advice, or bits of the advice, with some in this House and not others. Therefore, if there is any proposal or suggestion that it is to be or might be shared with individuals in relation to this vote, it cannot then not be shared with others, because the ring of confidentiality and privilege will have fallen away, and there could be no justification for it not being available to all.
Wayne David (Caerphilly) (Lab)
Is my right hon. and learned Friend aware of any precedent for such a differentiation?
Keir Starmer
No, I am not. I think I would be right in saying that if any advice was shared outside the ring of confidence, confidentiality would fall away as a basis for non-disclosure to the House. That must be right in principle; it cannot possibly be right that some in this House have seen bits or all of the advice and others have not.
Mr Grieve
I agree entirely with the right hon. and learned Gentleman. If the advice were prepared for the Cabinet in order for it to act collectively in taking its decisions, but it were then shared more widely outside, I agree entirely that it ought to be shared with every Member of this House at that point.
Keir Starmer
I am grateful for that intervention. I had the privilege of working with the right hon. and learned Gentleman when he was Attorney General, so I know how carefully he attended to his work.
Chris Bryant (Rhondda) (Lab)
Will my right hon. and learned Friend also be clear that this must extend to Parliamentary Private Secretaries, who are not members of the Government and are not bound in the same way under the ministerial code? Ministers tend to refer to bits and pieces of the legal advice, which is why it is important to see the whole of the legal advice in the round.
Keir Starmer
I am grateful for that intervention and agree on both fronts, particularly on summary or editing. In my time as a lawyer, I saw various attempts to edit or summarise legal advice. Even done with the best of intentions, it can lead to some misinterpretation of the advice that has been given.
There is a convention, but it is subject to exceptions and this is an exceptional case. There is good reason and good precedent for publishing this advice, and it is the right thing to do. I think there is growing cross-party support for that, and rather than fighting this unnecessary battle with Parliament, the Prime Minster should accept the motion and agree to publish the full advice.
Victoria Prentis
I would rather just finish, if I may.
I am very concerned about the wording of the motion, which is why I hope so much that we will be able to reach a consensus this afternoon. It is very broadly drafted. It refers to
“any legal advice in full, including that provided by the Attorney General”.
Keir Starmer
Let me deal with that point. As with the impact assessments, if legal advice were provided in the way that I set out earlier, the question would arise of whether the order, or the Humble Address, had been complied with. In addressing that question, of course anyone judging whether it had been complied with would take into account what had been said at the Dispatch Box, in exactly the same way as happened with the impact assessments. When those were provided, the question arose of whether there had been compliance with what had been asked for, and that was answered by reference to what had been said at the Dispatch Boxes about what was really being asked for. What I have said is important, because it will be me standing here having to make the case that the order has not been complied with. I could hardly stand here and complain about the provision of exactly what I had asked for.
Victoria Prentis
That is extremely helpful. I wonder whether the shadow Secretary of State will go one step further, and make it clear that he would like to import into the motion the point that he made about the information being supplied just to Members of Parliament, rather than laid before Parliament generally.
Keir Starmer
I have put on the record—three times, I think—that that is what I want and that is what we are seeking, and I absolutely stand by that. Not only could I not properly make the argument if that were the arrangement; I would not do so.
Victoria Prentis
I apologise for that slightly unusual exchange, Madam Deputy Speaker.
The Solicitor General (Robert Buckland)
It is more than a pleasure—it is a privilege—to speak at the end of this well-informed, wide-ranging and important debate. May I pay tribute to my right hon. Friend the Chancellor of the Duchy of Lancaster for, in the right spirit, reaching across and making a proper and considered offer with regard to the Government’s position? His contribution reflected very much the careful and deliberate argument of the right hon. and learned Member for Holborn and St Pancras (Keir Starmer), who rightly, and perhaps almost inevitably—he will forgive me for saying that—moved away from the wide-ranging terms of the motion and very clearly set out his and his party’s position with regard to the subject matter that he and other Opposition Members wish to deal with.
The hon. Member for Torfaen (Nick Thomas-Symonds) rightly explained the context of the debate. This is an extraordinary time in our nation’s history, with grave decisions to be made by this place that will affect the lives of all of us. I readily accept all that, but I do hope that hon. and right hon. Members will forgive me if, as Law Officers have done in times gone by, and I hope will do so in the future, I dwell a little on the particularly important and unusual role that is filled by both the Attorney General and me within this wonderful unwritten constitution that we all have and celebrate. I will not repeat the proper references made by the hon. Gentleman and others to “Erskine May”, the ministerial code and indeed the Cabinet Office code—they all stand on the record and do not bear repetition.
It comes to this: the quality of collective decision making in government is dealt a fatal blow when, bit by bit, that decision making is subdivided, unpicked and, frankly, made almost impossible even in circumstances as important and exceptional as this. The argument that we are now having boils down to whether Labour Members and others in this House can accept the Government’s clear statement that we wish to provide a comprehensive position statement that deals with not just the economic and political consequences of any withdrawal agreement and future relationship, but the legal consequences of that decision.
We have inevitably and properly focused on the question of Northern Ireland, which the right hon. Member for East Antrim (Sammy Wilson) quite properly raised, together with the hon. Member for North Down (Lady Hermon), who is no longer in the Chamber. We accept all that, but say that, consistent with previous incidences when the Government’s legal position has been set out in a way that has helped debate in this House, that would be the appropriate course of action here, rather than publishing Law Officers’ advice.
Much has been made about the previous occasion when that was done in relation to the Iraq war—in fact it was the only occasion when the full text of Law Officers’ advice has ever been disclosed. It was two years after the event in particular circumstances when, as has already been referred to, the question of the lawfulness of an action by the Government lay at the heart of the debate. We are in a different position now.
Right hon. and hon. Members know that it would be wrong if I were to try to speculate about the content of any advice on this issue that may or may not have been given by Law Officers. I have to remain true to the convention that we have referred to, but doing the best that I can, it would seem to me that using the Iraq precedent, bearing in mind the particular context and the particular circumstances, is not a helpful guide for where we are today.
Instead, I have looked back to the time of a previous Solicitor General, the late Lord Howe of Aberavon— Sir Geoffrey Howe as he was then—who is sadly no longer with us. He was the Solicitor General who took through the accession of this country to the treaties and the European Communities Act 1972. Although he spoke a lot about the legal basis and effects of entry to the then European Economic Community and the other communities, there was no suggestion at that time that any advice that he may or may not have given should be published. That is probably the best parallel that we can draw between the important events of 2018 and the very important events of 1972. If the House can accept that parallel, perhaps it can go on to accept the Government’s position.
The right hon. and learned Member for Holborn and St Pancras sought to make four key points. First, he spoke about the unprecedented context of the negotiations—I agree with that point—and, secondly, he referred to the nature of the advice as general, rather than something specific with regard to an action. Thirdly, he talked about the operation of the convention with regard to Law Officers’ advice and its position regarding privilege. His fourth point was that the advice or parts of it could not be shown to some but not others. These are all fairly reasonable and clear points.
I have already mentioned why I say that although these circumstances are exceptional, there is no reason at all for Law Officers’ advice to be published in the way in which the right hon. and learned Gentleman seeks. However, I want to deal with the point that he makes about—I hope he will forgive me if I use this phrase—a carve-out from the convention on the basis that the Government’s approach should allow for the disclosure of advice when that advice is in general terms. I would resist any suggestion that we should look at the disclosure of Law Officers’ legal advice on anything other than a strict case-by-case basis. In other words, the particular facts of each disclosure will very much depend on whether Law Officers’ advice should be published.
I agreed to some extent with the right hon. and learned Gentleman’s point about legal professional privilege, although I would say that the context of litigation is really the source of any disclosure, rather than a particularly special status whereby Law Officers’ advice is in a different category of legal professional privilege. If anything, there is a particular premium on the care that Government Departments take about the disclosure of Law Officers’ advice for all the consent reasons mentioned by the hon. and learned Member for Edinburgh South West (Joanna Cherry). With respect to the right hon. and learned Member for Holborn and St Pancras, one must look at the context. It is the litigation context that would allow disclosure, as opposed to anything intrinsically to do with the status of Law Officers’ advice.
I have dealt with the past as best I may, but I want to reiterate—I hope for the benefit of the House—why the Law Officers’ convention still remains important. It is important not just when it comes to legal professional privilege, but because it protects the public interest in reflecting collective Cabinet responsibility. That is a vital constitutional principle. Why? Because it would be wrong and damaging to start distinguishing the specifically legal components of collective decision making. This places the rule of law at the centre of Government decision-making processes and at the centre of the minds of all Ministers, not just the Law Officers, and it does not permit a delegation of those important responsibilities by Ministers to me and to the Attorney General.
As one of my illustrious predecessor Law Officers and fellow “sosbanite”, the late Sir Elwyn Jones, wrote:
“the Minister who is advised by the law officers that he cannot do something…is not allowed to say, ‘I cannot do it because the Attorney-General tells me that I cannot.’”
I could not have put it better myself. We are talking about the indivisibility of Government decision making, and I am sure that the House will agree that it is a pretty fundamental point.
It is the role of the Law Officers to guard this principle, however tempting—however convenient—it might be to publish legal advice. We are the stewards; we are here to jealously guard the gate. A decision to disclose Law Officers’ advice requires a very powerful countervailing public interest to override that position. The authority of the Law Officers to disclose the fact that they have or have not advised, and then the actual content of that advice, is rarely sought and rarely given. Contrary to what some people have suggested about the right of the client—in this case, the Government—the content of the advice must not be disclosed outside the Government without the authority of the Law Officers.
In the few short minutes I have left, as I am mindful of the need to move on to other important debates—the Opposition Chief Whip is in his place—I think it would be right for me to refer very briefly to some of the important contributions made by hon. Members. My right hon. and learned Friend the Member for Beaconsfield (Mr Grieve), the former Attorney General, spoke fundamentally about the need to speak truth to power—if Law Officers cannot do that, where are we? I entirely agree with him.
The right hon. Member for Leeds Central (Hilary Benn) made a really important point about the difference between legal advice and the legal position of the Government. I think he accepted the point that my right hon. and learned Friend the Member for Beaconsfield made in an intervention. I do not wish to repeat that, but I simply reiterate the point for, I hope, the benefit of him and everybody in the Chamber.
I pay particular tribute to my hon. Friend the Member for Banbury (Victoria Prentis), who spoke with authority as a former Government lawyer. She rightly reminded us in detail about the litigation position of the Government and the realities of disclosure, and the particular status of the Law Officers’ advice with regard to the deliberations of Government lawyers. Many other eminent lawyers spoke today—and many eminent non-lawyers as well, Mr Speaker, as I know that you regard the non-lawyer with particular affection, so I do not want to miss them out.
Today’s debate has been about not just dusty conventions, but pretty important constitutional positions. We know that the right hon. and learned Member for Holborn and St Pancras fully understands that. Admirable advocate though he is, I could not help but detect perhaps a little sense of sheepishness in his approach to the conventions. I readily forgive that, and I know that it will make him pause for thought in the days ahead. I hope that it can lead him and his colleagues to accept the clear view, and the clear offer, set out by my right hon. Friend the Minister. I readily adopt and repeat that offer. I hope that it will allow the right hon. Gentleman to draw back and, in the spirit of consensus and constructive dialogue, to accept the Government’s position and not press his motion to a vote today.
Question put and agreed to.
Resolved,
That an humble Address be presented to Her Majesty, that she will be graciously pleased to give directions that the following papers be laid before Parliament: any legal advice in full, including that provided by the Attorney General, on the proposed withdrawal agreement on the terms of the UK’s departure from the European Union including the Northern Ireland backstop and framework for a future relationship between the UK and the European Union.
Keir Starmer
On a point of order, Mr Speaker. I seek your guidance and clarity on the fact that the decision of the House that has just been made is clear, and that the Government must therefore respond but, in fairness, respond in the terms that I set out from the Dispatch Box. If I may repeat them for the record, the motion requires the publication of the final and full advice provided by the Attorney General to the Cabinet concerning the terms of any withdrawal agreement. This must be made available to all MPs. It is to be published after any withdrawal agreement is reached with the EU, but in good time to allow proper consideration before MPs are asked to vote on the deal. I put it in those terms because it reflects what I said from the Dispatch Box in the debate.
Mr Speaker
The House has resolved this matter, in that the motion has been put to it and approved without dissent or objection by it. The right hon. and learned Gentleman is absolutely entitled—both in the course of his speech, as he did, and now via the ruse of a point of order—further and better to explain what he seeks, and there is nothing wrong, exceptionable or disorderly about that.
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. It is then for the Government to respond, and we await that response, which it is to be expected will be swift. I hope that that is helpful to colleagues.