Privilege (Withdrawal Agreement: Legal Advice)

Keir Starmer Excerpts

Tuesday 4th December 2018 Commons Chamber

[Keir Starmer (Holborn and St Pancras) (Lab)]

I beg to move,

That this House finds Ministers in contempt for their failure to comply with the requirements of the motion for return passed on 13 November 2018, to publish the final and full legal advice provided by the Attorney General to the Cabinet concerning the EU Withdrawal Agreement and the framework for the future relationship, and orders its immediate publication.

I move this motion in my name and in the names of the relevant spokespeople for the Scottish National party, the Liberal Democrats, the Democratic Unionist party, Plaid Cymru and the Green party.

The issue before the House on this motion is very simple: have the Government complied with the order made by this House on 13 November this year to publish the final and full legal advice by the Attorney General to the Cabinet concerning the EU withdrawal agreement and the framework for the future relationship, yes or no? That order was binding. Mr Speaker, on 13 November I sought your advice on that issue and you ruled in the following terms:

“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.”—[Official Report, 13 November 2018; Vol. 649, c. 236.]

Yesterday, the Government published a reasoned position paper. That was not legal advice. It simply described the deal: it was a synopsis; it was in the nature of an explainer—an explainer having already been published when the deal was published. It was a long way from legal advice. The Attorney General made a statement to the House and then answered questions, but the Government did not publish the full and final advice by the Attorney General to the Cabinet. That is the long and short of it. The Government are wilfully refusing to comply with a binding order of this House, and that is contempt.

Yesterday, the Attorney General as good as admitted it when he said:

“I wish that I could comply with the request of this House but if I did, I sincerely believe that it would not be in all of our interests.”

And slightly later he said:

“although the House says that I should disclose, I believe that the public interest compels me not to. I am sorry.”—[Official Report, 3 December 2018; Vol. 650, c. 534 and 564.]

That is a plea of mitigation; it is not a defence.

I make three points about the Government’s position. First, as the hon. Member for North East Somerset (Mr Rees-Mogg) made clear yesterday, for the Attorney General to say that in his view it is not in the national interest is not good enough. The hon. Member for North East Somerset went on to say:

“When the Government lose a vote, they must follow the will of this House under an Humble Address, according to all precedent. It is no longer a matter for the Government to judge; it has been decided by this House, which is a higher authority.”—[Official Report, 3 December 2018; Vol. 650, c. 563.]

My second point is this: if the Attorney General feels so strongly about this matter that he is prepared now to put the Government in contempt of Parliament for refusing to comply with a binding order, why on earth did he not vote against the order in the first place, or anybody else on the Government Benches? That was not an oversight: the Government knew very well what was being asked for. The Attorney General must have known what was being debated and voted on. Yet it appears from answers given by the Attorney General yesterday that he was not asked before that vote for his view on the wisdom of not voting against the order, nor did he offer any advice, directly or indirectly.

Again I quote the Attorney General:

“I had no discussions with the Chief Whip on this subject. None was sought.”—[Official Report, 3 December 2018; Vol. 650, c. 569.]

I do not doubt the Attorney General’s word for a minute, but really—before that vote nobody asked the Attorney General’s views on the consequence of not opposing the order?

The truth is that the decision not to oppose the order was a political decision, taken by the Government because they feared they would lose the vote. They did not want the short-term humiliation of losing a vote, and the price of that was higher than voting against the order—and none of them did that. That is not the first time that has happened.

[Chris Philp (Croydon South) (Con)]

Will the right hon. and learned Gentleman give way?

[Keir Starmer]

I will in a moment.

For months the Government have ignored Opposition day motions, and now their tactic has got them into very deep water indeed. The Government cannot now come to this House and say, “We took a political decision not to oppose the making of the order to publish the full and final legal advice by the Attorney General and then we took a decision not to comply with that order, but somehow we are not in contempt of Parliament.”

My third point is about the Government’s amendment in the name of the Leader of the House asking this House to refer the matter of whether the Government’s response fulfils the motion to the Privileges Committee. The short point is this: there is nothing to refer. A binding order was made and the Government are refusing to comply with it. The reality is that, yet again, by their amendment the Government are simply playing for time in the hope that this ends up in the long grass until the crucial vote is long gone.

So this motion is extremely important. It has huge constitutional and political significance. Bringing the motion is not something I have done lightly. [Interruption.] On the contrary—[Interruption.] On the contrary—[Interruption.] On the contrary—[Interruption.] On the contrary—[Interruption.]

[Mr Speaker]

Order. [Interruption.] Order. I do not need somebody yelling rather stupidly from a sedentary position “Give way.” The right hon. and learned Gentleman will give way if and when he wants to do so, and that is the end of the matter. And the same will apply when the Leader of the House is on her feet. Let me just make it clear: these are extremely serious matters and the public is entitled to expect that this debate will be conducted with courtesy. However long it takes—[Interruption.] However long it takes, that is what will happen.

[Keir Starmer]

I have not taken the decision lightly because I understand the constitutional and political significance of this motion. On the contrary, we have raised points of order on a number of occasions about this order, and we have asked urgent questions, and I have repeatedly urged the Government to reconsider their position both publicly and privately, making clear the consequence of not doing so. But the Government have chosen not to do so. I urge the Government now, even at this eleventh hour, to think again: to pull back from the brink of being found in contempt of Parliament.

[Several hon. Members rose—]

[Keir Starmer]

This motion is a last resort. The issue before us is simple: this House passed a binding order; the Government are wilfully refusing to comply with that order; that is contempt of Parliament.

[Several hon. Members rose—]

--- Later in debate ---

[Robert Courts]

That is an excellent point.

[Keir Starmer]

If and when I was ordered, as Director of Public Prosecutions, to do something by order, I complied.

[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.

--- Later in debate ---

[Simon Hoare (North Dorset) (Con)]

Let us be clear that contempt is not disobeying an order. In fact, a tweet put out on the UK House of Commons Twitter account defines contempt as:

“Any act or omission which obstructs the House of Commons in carrying out its duties”.

That can be seen as a contempt of Parliament. That is an incredibly high bar and I do not believe that the right hon. and learned Member for Holborn and St Pancras (Keir Starmer) has made his case before the House this afternoon.

Mr Speaker, you and I love this place, but there is nothing more humorous than the synthetic confection of outrage, umbrage and humbug—that sounds like a rather dodgy firm of solicitors—that comes from this place when it thinks that its honour has been offended. It draws up its skirts like a slightly shocked maiden aunt at a risqué joke. The Opposition have, I am afraid, turned this into a parlour game—a parlour game called parliamentary politicking or parliamentary process. Let me pray in aid one or two thoughts that substantiate that viewpoint. So great is the umbrage of the Opposition that they ran out of speakers about 50 minutes ago. It strikes me that they are not exactly as hot under the collar as the right hon. and learned Member for Holborn and St Pancras tried to portray them as being.

Yesterday, when the Attorney General invited any question from any Member on any topic, about 75% of the stuff was to do with process and nothing to do with questions. If the right hon. and learned Gentleman was serious in his, I have to say, entirely synthetic sincerity about being more in sorrow than in anger, why was he trailing his letter around last Thursday and having it signed and sealed by close of play last Thursday? I thought that a former Director of Public Prosecutions would believe in honesty in the courts and in listening to somebody give their case before deciding what the next step would be, but he went around this place like a political costermonger selling his wares.

[Keir Starmer]

Will the hon. Gentleman give way.

[Simon Hoare]

I will not. [Hon. Members: “Oh!”] Oh, go on then.

[Keir Starmer]

The hon. Gentleman is talking nonsense; that letter was not signed on Thursday.

--- Later in debate ---

[Keir Starmer]

I have listened carefully to the debate, in which some very good points and some very bad points have been made. The Labour party is well aware of the two principles laid out by the Father of the House. The first is that only in exceptional circumstances will privilege be overridden, and the second is that orders of this House should be complied with; 13 November was about the first principle and the Government did not oppose the order, and today is about the second.

In drafting this motion, we have been careful to refer to Ministers rather than individuals to reflect some of the points that have been made in this debate. We have also been careful to ask for the remedy, which is that the order is complied with before we think of anything else, in fairness to the Government. The Father of the House said that there surely must be some way that this can be agreed and the order can be complied with, and lots of Members indicated that as well. In the three weeks since the debate about the first principle to today, the Government have put no suggestion to me of any sort of mechanism to enable them to comply with this order, and the House will make of that what it will. For that reason, I must push the motion to a vote.

Question put, That the amendment be made.

--- Later in debate ---

[Keir Starmer]

On a point of order, Mr Speaker. The House has now spoken, and this is of huge constitutional and political significance. It is, I think, unprecedented for the House to find Ministers in contempt. The motion makes it clear that the Government must now publish the Attorney General’s final legal advice in full. I hope that they will now confirm and comply with that order, but if they fail to respond, what steps can I and others take to ensure that they do comply with the motion and before the votes that we shall have next Tuesday?

[The Leader of the House of Commons (Andrea Leadsom)]

rose—

[Andrea Leadsom]

Further to that point of order, Mr Speaker. We have tested the opinion of the House twice on this very serious subject. We have listened carefully, and in the light of the expressed will of the House, we will publish the final and full advice provided by the Attorney General to the Cabinet; but, recognising the serious constitutional issues that this raises, I have referred the matter to the Committee of Privileges so that it can consider the implications of the Humble Address.

[Keir Starmer]

rose—

[Mr Speaker]

I am grateful to the right hon. and learned Member for Holborn and St Pancras (Keir Starmer) for his point of order, and to the Leader of the House for her response. [Interruption.] Some Members are saying, from a sedentary position, “When?” I had intended to say that I expected Ministers to comply with the verdict of the House. If the Leader of the House wants to offer a further and better particular on that point now, or immediately after the point of order from the right hon. and learned Gentleman, she can do so, but if not, I would certainly expect to have fuller information on that matter provided to the House very soon.

[Keir Starmer]

Further to that point of order, Mr Speaker. Will you please advise me what steps we can take to ensure that the process that has just been outlined is completed by next Tuesday, when we vote?

[Andrea Leadsom]

rose—