Privilege (Withdrawal Agreement: Legal Advice)

Michael Tomlinson Excerpts

Tuesday 4th December 2018 Commons Chamber

[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I think that the Attorney General believes that that should still be the case, although that has been superseded.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 ---

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

It is a great pleasure to follow my hon. Friend the Member for Cheltenham (Alex Chalk) and to contribute to this debate. I am especially pleased to see the Attorney General in his seat, because I am going to refer to one or two of his remarks. I was concerned by what I heard from him yesterday. I was concerned that he was less than optimistic. He had a somewhat gloomy outlook on what might happen if the vote does not pass, a week today. I thought he could have been more full-throated and full of voice in defence of the prospects for our country. Further, concern was expressed from where I was sitting in the Chamber as to the length of his replies during the course of the debate yesterday. We have become used to short questions and short answers, but the reason for the length of his replies was that he was being asked for his legal opinion on several questions and he was giving a full and frank response to each and every one.

I have one further concern, which other Members on both sides have also expressed. It is that the motion that we debated on 13 November was not opposed. It seems to me that that was a mistake. It should have been opposed, and arguably, an amendment could or should have been tabled. Had that happened, and had the amendment been voted on, that might have solved the issue. In the event, however, there was no vote and there was no amendment—at least, there was none that was selected. However, the Attorney General is absolutely right not to disclose the legal advice. Where would it leave us if he did? Should he disclose Cabinet minutes? Should he disclose official secrets? Should he disclose any other legally privileged documents just because a Humble Address says that he should do so? My instinct would be to say no. Thankfully, we do not have to rely simply on my instincts.

The hon. Member for Rhondda (Chris Bryant) referenced “Erskine May”. He referred to the 10th edition from the late 19th century, but the relevant passage is still present in the 17th edition from 1964. As no one has quoted from it yet, and as it is absolutely pertinent, it is important that I do so now. It states:

“Returns may be moved for, either by order or address, relating to any public matter”,

and it goes on to qualify what is meant by a “public matter”, stating that the

“papers and correspondence sought from Government Departments should be of a public and official character and not private or confidential”,

and it quotes from an example of confidential papers that should not be disclosed. It further proceeds to say:

“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”—

I will come back to that word—

“been withheld from Parliament.”

We then come to the 1858 Cagliari case referred to by the hon. Member for Rhondda. I wish he were in his place—he really would enjoy this—because he is wrong. He said that that involved an order of Parliament, but it did not. Information was voluntarily disclosed, and I can quote from the Hansard—if anyone cares to reference it later, the passage is from column 178, which is towards the bottom on the right-hand side—for 15 March 1858:

“We have given directions that all the papers connected with the management of the Cagliari case by our predecessors should be prepared and laid with all reasonable despatch before Parliament. They are more voluminous than the House perhaps imagines; but no unnecessary delay will take place in their production. It is also my duty to state that, after great deliberation, while perfectly aware of the inconvenience which under ordinary circumstances would accrue by submitting to Parliament the opinions of the law officers of the Crown”—

I am delighted to see the hon. Gentleman return to the Chamber; he may enjoy this exchange—

“we have arrived at the conclusion that in the peculiar and exceptional circumstances of the present case we ought to lay the opinions of the law officers of the Crown before the House.”—[Official Report, 15 March 1858; Vol. 149, c. 178.]

The information was voluntarily disclosed, and that is the key and distinguishing feature of the 1858 Cagliari case.

However—the Attorney General referred to this section in his response to my hon. Friend the Member for North East Somerset (Mr Rees-Mogg)—the 17th edition of “Erskine May” states:

“However ample the power of each House to enforce the production of powers may be, a sufficient cause must be shown for the exercise of that power; and if considerations of public policy can be urged against a motion for the papers, it is either withdrawn, or otherwise dealt with according to the judgment of the House.”

Therefore, despite having been concerned in three respects by what the Attorney General said yesterday, I can say that he was precisely right to have stated that a public policy test could and should be applied in this case. The passage from “Erskine May” is crystal clear. If the hon. Member for Rhondda were in his place, he would say, “That is the 17th edition, not the 24th. Why has it fallen out of use?” Well, Humble Addresses had fallen out of use by the time of the most recent edition of “Erskine May” but that has changed.

I have no doubt that there will be fuller section in the next edition, but that does not mean that it is irrelevant or that the law has been superseded; it means that the Humble Address had fallen out of practice up to and until these extraordinary times following the general election of 2017. With you in the Chair, Mr Speaker, I am sure that there will be a footnote or extended passage on the increase in the usage of the Humble Address. That is not to say that the advice and guidance of “Erskine May,” whether from the 19th century or from the 17th edition of 1964, is otiose, useless, worthless or has been superseded; it has not. It is still relevant, and it is relevant to the debate today.

In any event, the Attorney General gave ample legal advice yesterday. He was crystal clear and he was frank on his concerns about the backstop, and he was absolutely right to say it is now no longer a question of legal precedent. It is now no longer a legal question; it is a political question for each Member of the House to debate and to vote on a week today.