Privilege (Withdrawal Agreement: Legal Advice)

Andrea Leadsom Excerpts

Tuesday 4th December 2018 Commons Chamber

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

I beg to move amendment (a), leave out from “House” to the end and insert:

“refers to the Committee of Privileges the question of whether the Government’s response fulfils the motion passed on 13 November 2018 and requests the Committee to consider the constitutional and historic context and the proper use, ambit and scope of the motion for return procedure.”

I want to start by thanking my right hon. and learned Friend the Attorney General for putting himself at the disposal of the House yesterday for over two hours, to provide information about the legal impact of the withdrawal agreement. He did so with his characteristic candour and integrity. The use of this motion has happened very rarely in the history of Parliament, and I do not think that any Member can be in any doubt that the information that the Attorney General provided yesterday was a very frank assessment of the legal position. The questions posed by Members on both sides of the House addressed the key issues we must all consider on the legal effects of the withdrawal agreement. My right hon. and learned Friend responded to all those questions in comprehensive fashion.

Alongside yesterday’s session of nearly two and a half hours, the Government have also provided a 48-page legal commentary that sets out the legal effect of each part of the withdrawal agreement. The information provided to the House is the detailed legal position on the withdrawal agreement and, as the Attorney General said to the House yesterday, he continues to be at the disposal of parliamentarians to answer further questions.

I would, therefore, in responding to the contempt motion before us today, urge the House to exercise caution in this matter. The issue at hand is not one of substantive content. As yesterday’s questioning illustrated, there is no real dispute as to the meaning and legal effect of the withdrawal agreement. The Attorney General could not have been clearer about the legal position yesterday. No hon. Member could say in all honesty that the Attorney General has done anything other than treat this House with the greatest respect. There can be no question that he, or the Government, has acted in a manner that is contemptuous of this House.

[Toby Perkins (Chesterfield) (Lab)]

The Leader of the House says that the Attorney General answered with candour. Indeed, he did, when he said that

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

He made it clear that he was deliberately in contempt of Parliament.

[Andrea Leadsom]

The hon. Gentleman is not correct. As I have just set out, the Attorney General answered questions from all Members with the most possible frankness on the clear legal position.

[Simon Hoare (North Dorset) (Con)]

Does my right hon. Friend share my disquiet about some of the sincerity expressed by the right hon. and learned Member for Holborn and St Pancras (Keir Starmer)? The letter that he produced in support of the motion was signed and sealed on Thursday. They clearly had no interest in what the Attorney General had to say on Monday.

[Andrea Leadsom]

I agree with my hon. Friend that the House needs to exercise some caution, and I wish to explain precisely why.

The issue we are debating today is the Government’s duty to protect Law Officers’ advice in the national interest. The House has previously recognised the importance of the principle that information cannot always be disclosed. This is always guided by the need to protect the broader public interest. This is directly reflected in the Freedom of Information Act 2000, brought in under a Labour Government, which sets out a careful scheme for balancing the twin imperatives of transparency on the one hand, and of safeguarding the public interest on the other. The consequences of not following those principles are obvious. The House might request, by way of a Humble Address, information that could compromise national security or which might put the lives of our troops in danger.

[Mr Kenneth Clarke (Rushcliffe) (Con)]

Obviously, parliamentary sovereignty and the duty of Government to obey motions is extremely important to the House, but my right hon. Friend is rightly describing the other problem of the confidentiality of legal advice, which Labour and Conservative Governments need as well. Is there not a sensible solution to this, as opposed to this current party political exchange? The Opposition could agree to receive a confidential briefing on Privy Council terms, look at the documents and have the Attorney General point out those parts that, in everybody’s view, might damage the national interest or damage the negotiating position of any Government of any party, and in effect agree to redact the documents. The politically embarrassing bits, which are what the Opposition are after, and all the rest of it can come out.

Both the conventions—that the House must be obeyed and that the Attorney General’s legal advice should be confidential—should be protected, and that is a possible way of reconciling them.

[Andrea Leadsom]

I am grateful for the advice of the Father of the House, but he will appreciate that the right hon. and learned Member for Holborn and St Pancras (Keir Starmer) wants all legal advice to be put into the public domain without any attempt to protect the national interest.

[Several hon. Members rose—]

[Andrea Leadsom]

I will not give way for a while.

The consequences of not following the principles of transparency on the one hand and safeguarding public interest on the other are obvious. The House could request, by way of a Humble Address, information that could compromise national security. It would mean releasing information with no method for the House itself to review or assess the information in question, before its full release into the public domain. It would not be possible under the Humble Address procedure to weigh up any potential consequences of such a disclosure. It is simply an irresponsible thing to do.

I turn to the present case concerning Law Officers’ advice. As the House is aware, this is the subject of very long standing conventions which are enshrined in the ministerial code, and recognised in “Erskine May”. First, without the authorisation of the Law Officers, the fact that—or indeed whether—their advice has been provided to Government should not be disclosed. Secondly, such advice must not be provided to those outside of Government without the Law Officers’ express authorisation.

The purpose of the conventions is to provide the best possible guarantee that Government business is conducted in the light of full and frank legal advice. This is a fundamental principle of the rule of law. If Government knew that they might be forced to disclose the advice that they had received, it could seriously compromise the sorts of request for advice that would be made, and totally impede the ability of the Law Officers and Government lawyers to provide it. In turn, that would seriously compromise good government.

The motion we are debating today would undermine these vital conventions, and it would do so through the blunt instrument of the Humble Address, an arcane parliamentary procedure which, until very recently, was last used in this way in the 19th century. Moreover, there is real doubt about the ambit of the procedure: as I said earlier, it contains no mechanism by which information can be reviewed to ensure that its disclosure would not seriously harm the public interest. In considering today’s motion, hon. Members must reflect carefully on this—and on the potential consequences not just for this Government, but for all future Governments.

As this House knows, the Government have worked extremely hard to comply with Humble Addresses that have been passed previously. We have also sought to do so in response to the case we are debating today, while at the same time, taking steps to protect the national interest. The conventions that I have spoken about stand and endure because they respect the proper balance between the Government and Parliament—and the principle that Ministers should be as open with Parliament as it is possible to be, provided that disclosure of information does not compromise the wider public interest. We chip away at them at our peril; today’s motion is not in the interests of Members and it is definitely not in the national interest. What we break now may be very difficult to fix later.

[Chris Philp]

The Leader of the House has been commenting on the use of the Humble Address mechanism to compel the disclosure of information. We were told by the Attorney General yesterday that this information would be prejudicial to the national interest. Is it not impossible to debate openly in this House whether that information should be disclosed without knowing what the information is? Would it not be more appropriate to make the decision in a confidential tribunal about what may and may not be disclosed, analogous to a judge making such a decision when a matter of disclosure arises in a court of law?

[Andrea Leadsom]

Again, my hon. Friend points out the problem, which is that the right hon. and learned Member for Holborn and St Pancras’s motion seeks that all the information be placed in the public domain without anyone on either side of the House having the ability to consider whether it is in the national interest to do so.

I want to turn now to the contempt motion itself. We recognise that concerns have been raised as to whether the Government’s response meets the terms and spirit of the motion agreed on 13 November. We consider that the spirit and intent of that motion have been fully complied with. As I said earlier, the Government have now provided a 48-page paper setting out the legal effect of the withdrawal agreement, and the Attorney General came to the House yesterday. Anyone present in the Chamber for his statement and his subsequent responses to questions can be in absolutely no doubt that the Attorney General gave a full—[Interruption.]

[Mr Speaker]

Order. The Leader of the House must resume her seat momentarily. Mr Russell-Moyle, you are a very excitable denizen of the House. If you were on your feet, you would be entitled to express your views. When you are in your seat, you are not. I hope that that basic rubric is now clear to you and will require no further explanation.

[Andrea Leadsom]

Thank you, Mr Speaker. Anyone present in the Chamber for the Attorney General’s statement and his subsequent responses to questions yesterday can be in absolutely no doubt that he gave a full and frank exposition of the legal position of the withdrawal agreement. I simply reject any suggestion that the Attorney General has done anything other than treat this House with the greatest respect.

Turning to process, the motion before the House today seeks to find the Government in contempt of Parliament, without having taken the important prior step of referring the matter to the Committee of Privileges, as is normally the case. This is a matter of due process. First, those facing this extremely serious charge of contempt should each be given the opportunity to make their case and to follow the due process of this House. They should be given the opportunity to explain how they have come to their decision about how best to balance the Government’s responsibilities to Parliament with their ministerial duties, including the need to consider the national interest. That opportunity is a vital element of any such procedure, and in this mother of all Parliaments, we are surely nothing if we do not uphold our own constitutional practices in the appropriate way.

The Privileges Committee will also want to consider the question of compliance with the motion in its full constitutional and historical context. The Government would strongly welcome the Committee having the opportunity to consider the more general scope of the motion for the Humble Address procedure, in particular as regards confidential information and the national interest. The Committee could consider these complex matters in a full and impartial way, away from the heat of the present debate and in fulfilment of its parliamentary duty as established by this House. I am grateful to the Chair of the Committee, the hon. Member for Stretford and Urmston (Kate Green), for the conversation that she and I had today in which she agreed that her Committee would be happy to consider that.

The members of the Committee are accustomed to the consideration of complex and contested issues. That is the very essence of their role. Although it would be for the House itself to reach a final determination on whether a contempt had been committed, it should do so on the basis of the full and impartial consideration of the facts by the Committee of Privileges. I therefore appeal to all hon. Members right across the House that if they seek to pass this motion, they should refer it to the Committee in line with our parliamentary procedures. I urge all hon. Members to support the Government’s amendment.

--- Later in debate ---

[Andrea Leadsom]

The Law Officers would recuse themselves from any such meeting.

[Mr Rees-Mogg]

I am extremely grateful for that. It gives me complete confidence in supporting the Government’s amendment. But I absolutely reiterate that, however the vote goes today, the Humble Address must be obeyed unless overturned. For the Government to fail to do so would not be treating Parliament properly. We on the Government Benches must remember the great need for us, when we are in power, to defend the rights of Parliament for those occasions when we will not be.

--- 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—

[Mr Speaker]

Before responding to the right hon. and learned Gentleman’s point of order, I will of course hear a point of order from the Leader of the House.

[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—

[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—

[Mr Speaker]

It would seem to me to be unimaginable that it would not be, but of course I will hear from the Leader of the House.

[Andrea Leadsom]

Further to that point of order, Mr Speaker. The Government will respond tomorrow.

[Mr Speaker]

I am extremely grateful to the Leader of the House for the clarity of that confirmation. I think that it has satisfied the curiosity of Members, and that we can leave it there.