Brexit: Attorney-General’s Advice

Lord Keen of Elie Excerpts

Thursday 29th November 2018 Lords Chamber

[The Advocate-General for Scotland (Lord Keen of Elie) (Con)]

My Lords, I will repeat the Statement in response to the Urgent Question:

“The Government recognise the legitimate desire of Members on all sides to understand the withdrawal agreement and its legal effect. That is why my right honourable friend the Chancellor of the Duchy of Lancaster confirmed to the House on Tuesday 13 November that the Government will publish a full, reasoned Statement setting out the Government’s position on the legal effect of the withdrawal agreement. This is in addition to the material the Government have already published; for example, a detailed explainer of the withdrawal agreement and a technical explanatory note on the Northern Ireland protocol. My right honourable and learned friend the Attorney-General will also make a Statement to the House on Monday 3 December about the legal effect of the agreement and will answer questions from Members”.

[Baroness Chakrabarti (Lab)]

My Lords, I am grateful to the Minister for that Statement, but with the greatest of respect, what have the Government to hide? The Motion passed in the other place the other week was completely unequivocal. It demanded the full and final advice provided by the Attorney-General to the Cabinet in relation to this deal which Parliament is being asked to approve. Surely it would be nothing short of contempt for Parliament not to disclose the full and final advice without delay.

[Lord Keen of Elie]

My Lords, the observations of the noble Baroness simply underline the prematurity of this Question. A Statement is going to be made by my right honourable and learned friend the Attorney-General on Monday. To anticipate the content of that Statement in the way proposed by the noble Baroness is wholly inappropriate. As regards the suggestion that the Government are hiding anything, perhaps I may quote the noble and learned Lord, Lord Goldsmith, who said that advice from the Law Officers is,

“covered by legal professional privilege, and is subject to a long-standing convention which prevents disclosure of the advice (or even the fact that the Law Officers have been consulted)”.

That explains why it is not appropriate for me to go further. However, to anticipate a Statement that has not yet been made is, I suggest, wholly inappropriate.

[Lord Bridges of Headley (Con)]

My Lords, given that we are so fortunate to have my noble and learned friend—

[Lord Marks of Henley-on-Thames (LD)]

My Lords, in March 2003 the Government resisted publishing the Attorney-General’s full advice on the legality of the war in Iraq, publishing a summary only. That episode showed how misleading a summary can be and how such tactics discredit government. Will the promised full, reasoned Statement to which the noble and learned Lord referred amount to more than a summary, and will it be the work of the Attorney-General? Are the Government determined to repeat the mistake of 2003, and this time in defiance of a binding Motion on a humble Address requiring publication of the full advice? Do the Government have any proper basis for defying that Motion? The noble and learned Lord has not addressed that question. Is not the only possible inference that the Attorney-General has advised that the Prime Minister’s deal would tie the United Kingdom to the backstop unless and until the European Union agrees to its release?

[Lord Keen of Elie]

My Lords, again, the observations of the noble Lord merely underline the prematurity of the Question that is being posed. I think that noble Lords have to be realistic about this. No, we do not intend to repeat the mistakes of past Governments, nor will we. With regard to the advice over the Iraq War, I will not go into detail on that; it is a matter of history. The issue that was raised was whether the Cabinet had been shown the full legal advice or merely a summary, which, in the latter event, would have been contrary to the then Ministerial Code which indicated that when advice from the Law Officers was included in ministerial papers or in papers for the Cabinet, the full advice should be annexed to any summary. But that issue does not arise here at this time. Again, the whole Question that has been raised is one of prematurity. I am not going to comment on the issue of legal advice in a way that would intrude upon the Law Officer privilege.

[Lord Campbell-Savours (Lab)]

My Lords, does the Minister believe that there are circumstances in which the will of Parliament in a resolution should be ignored?

[Lord Keen of Elie]

I am not suggesting for a moment that the will of Parliament is going to be ignored.

[Lord Bridges of Headley]

My Lords, I apologise to the noble Lord, Lord Marks, for my earlier enthusiasm. My question is not precisely on this point; it is on a point that I raised yesterday which I believe has a very material impact on the decision that Parliament is about to take. In July last year, the European Commission said explicitly that, once triggered, Article 50 cannot be unilaterally reversed. Will the Government make it clear, before Parliament has a meaningful vote on whether to accept or reject the deal, whether they accept that point of view?

[Lord Keen of Elie]

My Lords, I spent an interesting day on Tuesday before 26 judges in the Court of Justice of the European Union, where this matter was addressed. I am advised that the Advocate-General to the court will deliver his opinion—of course, it is not an opinion binding upon the court itself—on 4 December.

[Baroness Hayman (CB)]

My Lords, I am sorry to intervene in a subject on which I am not expert, but it seems to me that the Minister is saying that there is nothing to worry about and we just have to wait until 3 December. Do I infer correctly from that that the Statement to be made on 3 December will fully comply in every detail with the resolution that was passed in the other place?

[Lord Keen of Elie]

My Lords, it is not for me to implore Members of this House not to worry in either the short or the long term, and it would be equally inappropriate for me to anticipate a Statement that has yet to be made by my right honourable and learned friend the Attorney-General.

[Baroness Ludford (LD)]

My Lords, can the Minister tell us whether the legal advice will take account of the interesting additional sentence in Monday’s Statement that opened up the prospect of there being a trade relationship but, if that were later altered by a future Parliament, the Irish backstop not coming back? What would be the legal implications of that for the European Union’s understanding that we will respect the Good Friday agreement and not bring back a hard border in Ireland—that is, we could chop and change whatever happens initially in the permanent relationship?

[Lord Keen of Elie]

I am not going to anticipate a Statement that has not yet been made. With regard to the interpretation and application of the withdrawal agreement, this is not the time or the place to indulge in a detailed analysis of its effect. However, the withdrawal agreement is in the public domain, and it is open to anyone and all to take appropriate legal advice if they consider that that is required with regard to the interpretation of that agreement.

[Lord Goldsmith (Lab)]

My Lords, I apologise to the noble and learned Lord for intervening. As he said that he would not anticipate what is to come, I thought that he was going to stop.

Given the references to things that I have said in the past, I thought that I should intervene for a couple of moments. First, I do not agree with or accept the characterisations that have been made in relation to what happened in 2003, but that is for another day. Of course, all the advice given on Iraq was disclosed in the Chilcot inquiry and looked at in great detail. It is important to recognise that. Secondly, I want to press the noble and learned Lord on the point that he has not really dealt with. In 2003, no resolution or humble Address was ever made by the House of Commons to the Government; they could have released whatever they wanted at any time. I am interested to know what the Minister has to say about the effect of the Commons resolution.

[Lord Keen of Elie]

There has been a resolution in the House of Commons. We are aware of its terms and its scope. We will await the Statement from the Attorney-General to see to what extent it is considered by the House of Commons to meet the resolution that was made.

[Lord Beecham (Lab)]

My Lords, as I understand the noble and learned Lord, the Attorney-General’s report, whatever form it takes, will be published only the day before the debate. Why is it being left to that late date?

--- Later in debate ---

[Lord Keen of Elie]

I do not believe that it is being left at all. It is a question of timing and the availability of the Attorney-General to provide any report and to address the House on Monday regarding these issues. Again, I emphasise the prematurity of the present questions. If noble Lords have an issue arising in the light of the Statement clearly we will respond to that.

[Baroness McIntosh of Hudnall (Lab)]

My Lords, I fully respect the position the Minister is in, but he is not being asked to divulge anything about the content of the Statement that might be put before the House of Commons on Monday. He was asked, for example in the question from the noble Baroness, Lady Hayman, about the intention behind that Statement. If he is not able to say that it is his right honourable friend the Attorney-General’s intention to meet the requirement of the Motion passed in the House of Commons, that is quite a serious matter.

[Lord Keen of Elie]

I quite understand the noble Baroness’s observations, but let me be clear that my right honourable and learned friend the Attorney-General is aware of the Motion made in the House of Commons and will be conscious of it when he comes to address that House.