EU Withdrawal Agreement: Legal Advice

Alex Chalk Excerpts

Tuesday 13th November 2018 Commons Chamber

[Alex Chalk (Cheltenham) (Con)]

Like many Members, I am grateful to the Opposition for raising this matter. They are absolutely right to do so, because this is not a dry legal point but something that goes to the heart of the operation of government and, indeed, our constitution. I am also grateful to them for the tone that they have adopted, recognising as they have the sanctity of the principle in ordinary circumstances. The right hon. and learned Member for Holborn and St Pancras (Keir Starmer) has been careful to frame his argument by suggesting that these are exceptional circumstances, and it is to that point that I wish to direct my remarks.

At the risk of stating the obvious, the context for all this is Iraq, because there is no doubt that hon. Members do not want to fall into the same trap that I respectfully suggest the House fell into some years ago when it allowed itself to proceed with the invasion of Iraq without having in front of it the advice about the lawfulness of the decision to go to war. I venture to suggest that it is now near established that such advice should be provided in those cases—those near-exceptional circumstances—but it is important to consider in the context of this debate what the question is not about. It is not about the lawfulness of the decision to leave. Were it about that, I would respectfully agree, or expect to agree, with the point the right hon. and learned Gentleman makes, because in such circumstances, the case would be strong. Instead, however, this is about the legal implications of the withdrawal agreement, which is a completely different animal. It will be about the legal implications of the extent to which trade agreements may be struck, the quantum of financial payments, the rate at which they are to be paid, the scope of citizens’ rights, and the role, if any, of the ECJ. That is an important distinction to make.

If one accepts that point, one has to fall back on the question of whether there remains any public interest in legal professional privilege, and I think it is agreed across this House that there is. Preserving the confidentiality of Law Officers’ advice and their ability to give that advice, and to do so fully and frankly, remains important. This is about not only giving advice fully and frankly, but ensuring that the substance of that advice remains confidential. That is the case for good public interest reasons, because Law Officers might give advice about the legal merits of other parties’ positions in the run-up to reaching a concluded agreement, and such matters might be sensitive—and disadvantageous to the national interest, if I may put it in those terms.

I entirely and genuinely thank the Opposition for raising this matter—it is a one that should be considered. While I have listened with great care to the points that have been made, having heard the clarification from the Government, I feel able to vote against the Opposition’s Humble Address motion.