EU Withdrawal Agreement: Legal Advice

Angus Brendan MacNeil Excerpts

Tuesday 13th November 2018 Commons Chamber

[Peter Grant]

I was about to say something very similar. Others in this House are much better qualified than me to decide what mechanism would best make sure that all Members of Parliament have possession of the facts, information and advice that we need. Whether that is achieved through the exact wording of the motion or a better way can be agreed in discussions elsewhere is not for me to rule on.

I come to this debate with one significant disadvantage compared with a lot of others who will take part in it, and with one significant advantage. The significant disadvantage I have is that I am not, have never been and never intend to be a lawyer. The significant advantage I have is that I am not, have never been and have no intention to be a lawyer. That means that I have no conflict of interest in saying that the law and lawyers are there to serve the public. Parliament and parliamentarians are here to serve the public, not the other way round. In this context, the law and lawyers are here to serve Parliament; Parliament is not here to serve the lawyers.

A number of really extraordinary concerns have been raised about what the motion, amended or otherwise, would mean if it was agreed. As far as I can see, this is not about abolishing the convention that legal advice is privileged or confidential, or about insisting that from now on every Attorney General who ever gives evidence has to do so on the assumption that it will be on the front page of the Daily Express by the next day. It is not about that at all. Simply reading the wording of the motion makes it perfectly clear that that is not what is being asked for.

I have heard concerns from Conservative Members. People are worried that they will be expected to vote for something but then, after they have done so, somebody else will interpret what their vote actually means. Some of us have been thinking about that since 23 June 2016, because that was exactly what happened to 33 million people after they cast their vote in the EU referendum. There is a significant danger that that is precisely what has been set up to happen to us when we are asked to vote on the Government’s deal or no deal. We will be asked to give a commitment to agreeing to something without really understanding what we are being asked to vote for. When something is so fundamentally important, that is simply not acceptable.

We should be under no illusions whatsoever about the consequences of our getting it wrong when we come to vote on a proposed deal. Whether we end up with a bad deal or no deal, the Government’s own analysis points to an economic hit that would be bigger than the crash of 2008, including a 9% reduction in economic growth; hundreds of thousands of jobs put at risk; £2,300 per year out of the pockets of every family in Scotland; the rights of millions of citizens called into question; and, as has been mentioned, the very real risk of undermining that precious but fragile peace that allows people on both sides of the Irish border to do what most of the rest of us take for granted—live normal lives. It would be a criminal dereliction of the duties entrusted to us if we willingly took that decision in the knowledge of the possible consequences and the fact that there was expert advice about what those consequences might be, but did not even ask what that advice said.

[Angus Brendan MacNeil (Na h-Eileanan an Iar) (SNP)]

My hon. Friend hits on a very important point about the best possible deal for Britain, or a good deal or whatever—I think I heard that on Radio 4 this morning. The reality is that whatever deal is good at the moment is the equivalent of having crashed the Rolls-Royce and heading down to the car shop to get the best second-hand car for Britain. What we have at the moment will not be repeated—things will be an awful lot worse—but the media are parroting a line and misleading the people. What happens under Brexit, deal or no deal, will be a lot worse than what we have today, and the chickens will come home to roost for this Government very quickly.

[Peter Grant]

I am grateful to my hon. Friend for his comments. My views are perfectly clear: I do not think there is such a thing as a Brexit deal that can come close to being as good a deal as we have just now. If that argument is not going to be rerun—if we are not going to get a chance to correct the mistakes that have been made in the past—so be it, but it is my responsibility, and the responsibility of all of us, to make sure that the Brexit that is agreed is the least damaging that is possible.

I know that some Government Members will be concerned—some have already raised concerns—about setting a dangerous precedent. May I remind them that the Government’s mantra for months has been that this is an unprecedented situation? In an unprecedented situation, precedents do not apply. How can what we do in response to an unprecedented situation set a precedent for what happens next, unless the Government propose to hit us with more unprecedented disasters through their own blundering incompetence?

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[Peter Grant]

Thank you, Mr Speaker. As I was saying, if the Government’s key argument is that it is unworkable to have a set of rules that allows legal advice to Ministers to be disclosed under exceptional circumstances, that is shown to be nonsense by the fact that in Scotland a different set of rules applies, and does so very effectively.

Related to the precedent argument is the claim that Parliament is not allowed to see Government legal advice under any circumstances. Why not? The reason given is simply that we are not allowed to. I would love someone on the Government Benches who believes in the absolute sovereignty of Parliament to explain why this supposedly absolutely sovereign Parliament is not allowed to do anything it likes, because that is the argument we often hear from them. I do not believe in the absolute sovereignty of Parliament, but for those who do, how can it be that there are any restrictions on what this absolutely sovereign Parliament can ask or instruct Ministers, who are accountable to it, to do on our behalf?

[Angus Brendan MacNeil]

Will my hon. Friend give way?

[Peter Grant]

I will not take any more interventions.

As has been said, the last time there was such a significant argument about disclosure to Parliament or providing it with Government legal advice was probably in the run-up to the decision to go to war in Iraq. SNP Members and others in the House argued then that Parliament should have sight of the Attorney General’s legal advice before being asked to vote in favour of war. The SNP was vindicated, as were others. We were shown to be right in asking for that advice to be disclosed, but tragically it was too late for it to make any difference. At the time, Parliament was in possession of the equivalent of what today’s non-selected amendment asks for—the Government’s version of advice, and of such parts of arguments, and of information and intelligence dossiers, that the Government wanted Parliament to see—but not of anything that did not suit the Government. Parliament was given incomplete and, frankly, biased and misleading advice, and it made a catastrophically bad decision as a result. If we are worried about precedent, we should think about the precedent that that might set. I do not believe there is any chance that MPs would have supported the invasion of Iraq if they had been in full possession of the facts that the Government had at the time.

Two days ago, I laid a wreath at a memorial to two young men from Glenrothes who I am convinced would be alive today if Parliament had had such advice at the time it took that decision. I am not suggesting, and nobody should suggest, that a bad decision on Brexit will lead directly to thousands of deaths, but it will lead to enormous financial hardship and huge social upheaval for millions of citizens—perhaps tens of millions—and it could set off an uncontrollable chain of events with the potential to result eventually in the deaths of innocent civilians in parts of these islands.

I want the House to be given the best possible opportunity to reach not the best Brexit decision, but the least worst Brexit decision. In order to do that, we need at our disposal all the advice and information that anybody has been able to provide. If parliamentary precedent or convention, or medieval practices, prevent us from doing our job properly, they have be to be either set aside or changed. The situation is too important to allow medieval procedures to get in the way of the right decision. The Government have already set aside the Sewel convention because we are in an unprecedented position. I suggest that the convention on the absolute confidentiality of legal advice has to be varied on this occasion to get us to the correct decision.

I want every MP who shares collective responsibility for the decision we will take in the near future to know that whether our constituents agree or disagree with our decision, each of us will have exercised our judgment in full possession of the facts. We will then be able to take the responsibility for the decisions that each of us will take. I urge the House to support the motion.

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[Mr Grieve]

Yes. The Government are the client and the relationship is between a client and a lawyer, providing completely disinterested, impartial advice to the best of their ability. Of course, on top of that, it is not holy writ either; it is advice. At the end of the day, if the House gets the Government’s statement of a legal position, it can indeed go to other lawyers, who may wish to pick it to pieces, and that, I am afraid, is often almost inevitable.

[Angus Brendan MacNeil]

rose—

[Mr Grieve]

I do wish to conclude, but I will give way.

[Angus Brendan MacNeil]

Surely if the Government are the client, the client is at liberty to share the advice, and indeed the client should be sharing it, particularly in this circumstance.

[Mr Grieve]

I understand the hon. Gentleman’s point, and at the end of the day it is right to say that the Prime Minister can waive the privilege. It is open to a Government to decide to publish the legal advice, but, speaking as a past Law Officer, first I would be dissuading the Government from publishing legal advice for the reasons that I have just given, and secondly, that is a different thing from this House trying to coerce the Government into publishing legal advice. In my view, that undermines good governance and does not serve a purpose that is in the public interest, particularly in the light of the assurances that we now have as to how the Government will proceed, and which, I might add, I shall make it my business to try to ensure that the Government honour—and I am sure they will.

With that, as I promised I would a few moments ago, I bring my remarks to an end.

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[Hilary Benn]

I absolutely bow to the right hon. and learned Gentleman’s expertise. I was going to make a second point, which may offer Ministers some comfort: also by definition, the legal advice the motion seeks to have released has not yet been written, because we do not yet have a withdrawal agreement. Only when we have a withdrawal agreement will advice be written about what it means, to advise the Cabinet and, I hope, Parliament.

[Angus Brendan MacNeil]

Will the right hon. Gentleman give way?

[Hilary Benn]

I will, and then I shall bring my remarks to a close.

[Angus Brendan MacNeil]

The right hon. and learned Member for Beaconsfield (Mr Grieve) has just made clear why the legal advice, rather than a report on it, must be published. Remember Roger Casement, who said he was hanged on a comma—any change in wording seriously changes the meaning of the legal advice.

[Hilary Benn]

I take the hon. Gentleman’s point, but I think the House agrees that there could not be a difference between the two, for reasons that Government Members have clearly set out.

These are unique circumstances. It seems to me that, in his typically elegant way, the Minister went a long way towards meeting the requirements of the motion. If it is pressed to a vote, I hope he follows the logic of his own argument and supports it in the Division Lobby.

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[Victoria Prentis]

As a humble Back Bencher, I unfortunately have no idea what legal advice was made available to the Cabinet. It might assist the House to know that the ministerial code is clear—I cannot remember in which section, but in the same area—that if a Law Officer gives legal advice to the Cabinet, the whole of that advice must be provided as an attachment for the whole Cabinet to read. It is very important in these difficult times that we ensure that the ministerial code is complied with in full.

I pay tribute to the previous Labour Government and to previous Conservative Governments, who worked hard to improve the transparency of the process of government. Great advances have been made, for example in the field of freedom of information. It is relevant that legal officers’ advice is exempted from the Freedom of Information Act under section 42. It is also true that it is ultimately up to the client to decide whether or not legal advice should be published. I am concerned for future Governments, and for future Government legal advisers: I want them to be able to provide the fullest, frankest and most honest advice possible.

[Angus Brendan MacNeil]

Will the hon. Lady give way?

[Victoria Prentis]

I would rather just finish, if I may.

I am very concerned about the wording of the motion, which is why I hope so much that we will be able to reach a consensus this afternoon. It is very broadly drafted. It refers to

“any legal advice in full, including that provided by the Attorney General”.

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[Victoria Prentis]

I apologise for that slightly unusual exchange, Madam Deputy Speaker.

[Angus Brendan MacNeil]

A few seconds ago, the hon. Lady was arguing that if the legal advice were to be published and more widely known, that would somehow compromise future advice. Is she suggesting that the skills and the general professionalism of legal people would be compromised in future—that they would compromise themselves, and would not give the fullest, frankest and most honest advice because of what might have happened in the past, and would then become different legal people?

[Victoria Prentis]

That is absolutely what I am saying, and that is the basis of legal professional privilege. It is critical that lawyers are able to give a range of views to their clients about, for example, the chances of success in litigation, and the chances of success if various options are adopted. That is why legal professional privilege exists. It is absolutely critical for lawyers and their clients to be able to speak completely frankly to one another.

Let me end by echoing what was said by my right hon. and learned Friend the Member for Beaconsfield (Mr Grieve) about the ring of confidence. It is important, in my view, that the Attorney General’s advice is sacrosanct and should remain within the Cabinet, because if the ring of confidentiality is broken, that is a very serious matter. It is important for collective government and sensible decision-making that we maintain these conventions, even in difficult times—perhaps especially in difficult times.