EU Withdrawal Agreement: Legal Advice

David Lidington Excerpts

Tuesday 13th November 2018 Commons Chamber

[The Chancellor of the Duchy of Lancaster and Minister for the Cabinet Office (Mr David Lidington)]

May I first genuinely express my appreciation to the right hon. and learned Member for Holborn and St Pancras (Keir Starmer) for the courteous and constructive way in which he has presented his case? As will become apparent to the House, I take issue with some of his arguments, but I hope that we can continue this debate in such a tone. As he said, we are dealing with issues of the most fundamental, political, constitutional and legal importance—not just to us, but more importantly to the people who send us here and whom we are here to represent.

As the right hon. and learned Gentleman acknowledged, the proposed withdrawal agreement—as it is referred to in today’s motion—has not been finalised. There is a live negotiation still ongoing in Brussels and the Government have consistently said that we will not provide a running commentary on our negotiating position. It is a cardinal principle of our system of government that Ministers and officials need to be able to prepare the British negotiating position in private. After all, the European Commission does not show its hand in negotiations—nor does it publish the legal advice underpinning its position on live negotiating issues—and I do not believe the Government of the United Kingdom should be expected to do so either.

I want to make it clear that I welcome the acknowledgement by the right hon. and learned Gentleman that what he seems to be seeking through this motion is perhaps not quite as all-embracing as a literal reading of the motion would lead the House to conclude. I did have some preliminary analysis done yesterday after we got sight of the Opposition’s motion. The first conclusion we came to is that if we took the wording of the motion literally, then, at a conservative estimate, we could be looking at upwards of 5,000 different pieces of documentation going back over the two years since the referendum and covering, of course, matters deriving not just from the Law Officers’ Department but from legal advisers in every Government Department in Whitehall.

However, I completely understand the concern that the right hon. and learned Gentleman has expressed, which is, I think, felt in all parts of the House by hon. Members of all political parties, that if and when—I hope when—a withdrawal agreement comes forward for debate in Parliament, right hon. and hon. Members should have access not only to an economic and political analysis of what we are being asked to approve or disapprove, but to detailed legal analysis of the meaning and the implications of the agreement.

Of course, one option is that the House or one of its Committees should itself commission its own independent legal advice separate from the Government’s, but I accept that it is a perfectly fair request to be made of Government that we set out the legal implications, as we see it, of the agreement, should we successfully conclude these negotiations. To avoid any risk of misunderstanding, I want to make it clear that when I talk about the agreement, I also refer to any protocols that might be attached to such an agreement.

[Mr Andrew Mitchell (Sutton Coldfield) (Con)]

I am extremely grateful to my right hon. Friend for the tone that he is using in this debate. In his penultimate paragraph, it seemed that he came quite close to accepting the spirit of what the Opposition are saying. I am no lawyer, but the House is about to vote on this agreement, with Members carefully considering what may be one of the most important votes that we take in our political lifetime, in the light of what is in the best interests of their constituents and their country. Would it not assist the Government in securing the support of the House if, exceptionally and in a spirit of good will on this frankly unprecedented occasion, they released the Attorney General’s advice?

[Mr Lidington]

I will come on to the specific issue of formal advice from the Law Officers in due course slightly later in my speech, but I first want to conclude the point I was making about the Government’s approach. I hope that, as my right hon. Friend suggested, what I say will be read as an attempt to find some common ground across the House, even if there is not complete agreement.

[Tom Brake (Carshalton and Wallington) (LD)]

Can I ask the Minister something before he moves on? He referred earlier to the importance of providing not only some legal advice but economic analysis. Can he confirm that that economic analysis will include the merits or otherwise of our staying in the European Union?

[Mr Lidington]

If I may, I will answer the right hon. Gentleman while also responding to something that was said by the Opposition spokesman when he referred to the commitment that, yes, is there in the White Paper that the Government published earlier this year to provide Parliament with information and analysis ahead of the meaningful vote. I want to agree and accept on behalf of the Government that that information and analysis should include not only such things as impact assessments, which the Opposition spokesman mentioned, but a legal analysis as well.

In specific response to the right hon. Member for Carshalton and Wallington (Tom Brake), we certainly do intend to provide an economic analysis. The Under-Secretary of State for Exiting the European Union, my hon. Friend the Member for Fareham (Suella Braverman), will have heard what he has proposed one of the options should be.

[Chris Bryant]

I am glad that the Minister recognises, I think, that no Opposition Member is trying to drive a coach and horses through the fundamental principle that the Government should be able to take confidential legal opinion and advice during a live negotiation. None of us is seeking to transform that. However, we need to be able to understand in full all the parameters of why the Government, when they come forward with a deal, believe that it is going to be legally watertight and practicable.

Let me give just one example. The Government are saying at the moment that it is impossible to implement the Sanctions and Anti-Money Laundering Act 2018 until such time as we finish the transition period—in other words, not for another two years. Why on earth is that the Government’s legal position? When every other Government in Europe is able to implement their own sanctions, why cannot we do our own now? We would like to see the legal advice behind that.

[Mr Lidington]

That particular point is a matter to be followed up with the Ministers in charge of that particular legislation. However, I recall from my time at the Foreign and Commonwealth Office discussions with other European Governments about sanctions policy, and it was very clear that, I am afraid, contrary to what the hon. Gentleman said, a number of EU countries have, while remaining members of the European Union, given up the right to set their own policies on sanctions and rely on European Union instruments in order to give effect to those policies.

[Chris Bryant]

Unfortunately, though, when the Minister was a Minister in the Foreign Office, he himself, quite rightly, introduced sanctions on Iran that were not being implemented by the European Union, so we are perfectly free to introduce our own sanctions, and if they should be against Russia, we should do so now.

[Mr Lidington]

In the case of the United Kingdom, we have some sanctions, while members of the European Union, that are applied by virtue of European Union instruments, and there are others additional to those that we have had the freedom to apply on our own. It would probably be unwise of me to try to supplant Ministers in the Department for International Trade and get into the detail about this, but I am sure that the Secretary of State will be only too delighted to listen in detail to the hon. Gentleman’s concerns.

I want to return to the main point that the shadow Secretary of State put to me.

[Owen Smith (Pontypridd) (Lab)]

Will the Minister give way?

[Mr Lidington]

All right. Then, if the House will forgive me, I will try to make some progress, because there are some really important points that I want to respond to.

[Owen Smith]

In the light of the Minister’s very welcome admission that the Government are to publish economic analysis on the withdrawal agreement, and in the light of his failure to deny on Radio 4 this morning that Britain may well be worse off as a result of leaving the European Union, could he confirm that that analysis will measure whether we will be worse off leaving versus remaining in the European Union?

[Mr Lidington]

There will be considerable economic analysis. I do not know quite how great the hon. Gentleman’s appetite for the detail will be, but I am sure that in addition to what is provided by the Government, there will be multifarious pieces of advice and analysis from outside organisations.

I want to make it clear that the Government fully understand the historic nature of the decision that Parliament will be asked to take. Frankly, as someone who feels sometimes as if I have been living through these issues for a considerable number of years, I think that nothing would be served by coming out of the debates that we will have on the meaningful vote and then, if approved, the implementation Bill with people feeling that they were not in full possession of the arguments and the evidence in order to take a decision. When we come through this particular period in our history, we have—all of us, from our different political perspectives—to find a way of moving on, to establish this country’s new relationship with our neighbours, friends and allies in the EU27 and to get on with the debates and the work on domestic policy issues, which I certainly find are what people raise first on the doorstep, rather than the detail of article 50 procedures.

I want to give a commitment to the Opposition and the House. We will make available to all Members of the House, following the conclusion of negotiations and ahead of the meaningful vote, a full reasoned position statement laying out the Government’s political and legal position on the proposed withdrawal agreement, including any protocols that might be attached to it.

In addition, my right hon. and learned Friend the Attorney General has authorised me to confirm to the House this afternoon that he is ready to assist further by making an oral statement to the House and to take questions from Members in the normal way. I think that that would go a lot further than the Libya precedent cited by the right hon. and learned Member for Holborn and St Pancras.

Ministers are also very willing to engage in further discussions with colleagues of all political parties, including the Opposition spokesmen, about how best, in terms of both substance and timing, we can provide analysis in the form that Members will want and need in order to make an informed decision when that is presented to them.

[Lady Hermon]

Will the right hon. Gentleman give way?

[Mr Lidington]

I will just refer to the hon. Lady before I give way. I thought it was perfectly reasonable of her to ask for the analysis to include the impact that a possible Northern Ireland protocol might have on Belfast agreement commitments. I would certainly see that as the kind of thing that Ministers should be discussing with her and other colleagues from Northern Ireland, to ensure that we include everything they want.

[Lady Hermon]

I am grateful to the right hon. Gentleman for allowing me to intervene. Can he be absolutely clear in what he is saying to the people of Northern Ireland and confirm today that the people of Northern Ireland will not be kept in the dark by the British Government as to the exact legal consequences for the Belfast/Good Friday agreement of any negotiated deal by the British Government in good time, before we have to vote on this deal?

[Mr Lidington]

I am happy to give that assurance, and to say further that the relevant Ministers will be happy to talk to the hon. Lady and other Members representing Northern Ireland constituencies about exactly what form of analysis should be presented to the House, so that people in Northern Ireland can understand clearly both what is being proposed in any potential withdrawal agreement and what the legal, constitutional and practical implications of that might be.

[Mr Grieve]

I am most grateful to my right hon. Friend for giving way. I was very pleased to hear the assurances he just gave as to how the Government would proceed and how the Attorney General would play a part. Might my right hon. Friend also take on board the fact that, if we come to debate this matter on the Floor of the House, it has been a custom—although one that may have fallen by the wayside—for there to be a Law Officer sitting on the Treasury Bench during the debate who is able to respond to any queries of a legal nature that might arise?

[Mr Lidington]

My hon. and learned Friend the Solicitor General tells me that he looks forward to being there. It is not really for me to speak for the Law Officers, but I know that both the Solicitor General and the Attorney General are utterly committed to their parliamentary and governmental responsibilities.

[Robert Courts (Witney) (Con)]

I am grateful to the Minister for the commitment he just gave, but it sounded very similar to the compromise amendment that stands in my name on the Order Paper but has not been selected. Will he clarify that it is a full reasoned position statement laying out the Government’s political and legal position?

[Mr Speaker]

That was a cheeky endeavour on the part of the hon. Gentleman. We cannot debate the terms of an amendment that has not been selected, and the House will know that reasons are not given for non-selection; I had to make a judgment about how best the debate was served. It is rather cheeky, but I am sure that the Minister can deal with it dexterously.

[Mr Lidington]

I have been here long enough to know that one should accept rulings from the Chair, but I can say to my hon. Friend that our intention in Government is to provide the kind of analysis that I believe he has been seeking, but which also meets the requests and calls of Members of all shades of opinion on the European issue, not just in my party but in all parts of the House.

I want to put on the record that there have already been discussions through the usual channels on a cross-party basis about how the Government can facilitate the briefing of Members in every party represented in this House. I can give the House a further commitment that those contacts and conversations will continue.

[Kevin Hollinrake]

What my right hon. Friend is setting out seems to be more or less what the shadow Secretary of State was asking for. Can he confirm that, if we were called to vote on this motion, we would be voting on something entirely different, which would be to produce all legal advice in connection with this matter?

[Mr Lidington]

I always try to build bridges. I hope that what I have said is of some assurance to colleagues in all parts of the House. As I said earlier, I think that the motion as worded goes wider than what the right hon. and learned Member for Holborn and St Pancras, in all fairness to him, was clear about in his introductory speech.

[Neil O'Brien (Harborough) (Con)]

Will my right hon. Friend give way?

--- Later in debate ---

[Mr Lidington]

I will, and then I really must make progress.

[Neil O'Brien]

I am incredibly thankful to my right hon. Friend for his thoughtful tone in this debate and for the important reassurances he has given to the House, but could he give me one more reassurance, which is that he opposes in principle the thin end of the wedge on the Order Paper? I worked with brilliant civil servants for five years, and if they had to give any legal advice in full, written as if it were for publication every single time, their jobs would simply be impossible.

[Mr Lidington]

I want to come on to that point now. Where I part company with the Opposition motion is over the proposed disclosure of Law Officers’ formal advice. Everyone in the House will know that there is a strong long-lasting constitutional convention, followed by Governments of all political parties, that the opinions of the Law Officers remain confidential. That is reflected in the words of the ministerial code, which seeks to balance the Government’s twin duties of accountability to Parliament and maintaining confidentiality where necessary and appropriate. The code explicitly provides that

“Ministers should be as open as possible with Parliament and the public,”

but also expressly notes that the advice of Law Officers and even the fact that such advice has been sought or obtained

“must not be disclosed outside Government without their authority”—

that is, the authority of the Law Officers themselves.

Furthermore, “Erskine May” on page 447 specifically states that

“the opinions of the law officers of the Crown, being confidential, are not usually laid before Parliament, cited in debate or provided in evidence before a select committee, and their production has frequently been refused”.

“Erskine May” goes on to explain that

“The purpose of this convention is to enable the Government to obtain frank and full legal advice in confidence.”

Successive Governments have upheld that principle because the work of Government—Governments past, present and future, of different political persuasions—benefits from receiving such frank, confidential advice. The convention exists for very fundamental constitutional reasons, and to uphold the rule of law.

The right hon. and learned Member for Holborn and St Pancras referred to the entrenched tradition of privileged legal advice: in this country, we operate on the basis that advice given by a lawyer to his or her client, whether an individual, a corporation, the Government or a political party, should be treated as confidential. Although he cited exceptions to that, those exceptions were about litigation in court, rather than about the circumstances we are deciding here.

[Sir Oliver Heald]

Does my right hon. Friend accept that, in giving advice, the Law Officers are often looking at questions of a very sensitive nature with an international content, that it is not always about a case that is going to come before a court in the UK, and that often it would be very difficult for our country if all the advice and various options and what the Law Officers’ are saying about them had to be laid out?

--- Later in debate ---

[Mr Lidington]

My right hon. and learned Friend is spot on. The Law Officers’ advice goes beyond other forms of legal advice in its particular complexity, sensitivity and constitutional importance. For that reason, there is a high premium—higher even than that in respect of other forms of legal advice—on protecting that advice.

The Law Officers convention is also a facet of the important constitutional convention of collective Cabinet responsibility. Again, the ministerial code is clear on this. It says that all members of the Cabinet must publicly support collective decisions, but are able within Cabinet to debate and raise concerns privately, and the Law Officers’ contributions to those Cabinet discussions and decisions should similarly be protected, just as the contributions of other Cabinet Ministers or the minutes of Cabinet meetings themselves are protected. That ensures that the public debate is about the Government’s collective decision and the Government’s accountability to this House, rather than about internal processes.

Where the right hon. and learned Member for Holborn and St Pancras was correct was to say that, in the case of the Iraq war and Lord Goldsmith’s advice, an exception was made to this general rule. It is certainly the only one of that nature in modern times that I have been able to find so far. However, it was done some years—two years—after the event, following the appearance in the media of selected verbatim extracts from the advice. However, the key difference between that case and what we are debating this afternoon is that, in the Iraq case, the point at issue was not the legal implications of particular policy options, but whether the Government’s entire action in Iraq was or was not lawful. That was the point at issue then, which is why the then Government decided that it was right for them to make an exception to what is normally a very firm convention.

I believe that, if this convention were to be set aside, there would be an adverse impact on the quality of discussions within Government and of the Government’s collective decision making, which would not be in the interests of any Government of any political party. Whether by means of resolutions of the House or otherwise, if Law Officer advice is made public, future advice is likely to be less frank and candid than at present and less likely to be written down. That is not going to make for good government.

[Joanna Cherry (Edinburgh South West) (SNP)]

Is there not another aspect to this? A number of the Minister’s Cabinet colleagues have said that they did not properly understand the legal implications of what was agreed to last December. That is of course what has led to the dilemma in which the Government now find themselves about the backstop. If the Cabinet were not able to understand the legal advice last December, surely that means they will not understand it this time round and it is important that this House, which will take the ultimate decision, fully understands the legal implications of what is about to be agreed to, if indeed there is going to be an agreement.

[Mr Lidington]

I go along with the hon. and learned Lady this far: I have set out how the Government intend to discharge the commitment that we have given to making sure that Members in all parts of the House are fully informed and do understand the nature of the legal, as well as the economic and political, implications of the decision that we are facing. However, at no time in our Parliament’s history has any Government operated in an environment where legal advice is prepared for Ministers one week and then made public the next.

I have to be clear that this motion does go against the Law Officers convention, which Governments of all colours have defended. I hope, therefore, that, during this debate, the right hon. and learned Member for Holborn and St Pancras and his colleagues will reflect on the assurances I have sought to give to the House this afternoon; will take them in the spirit in which I, on behalf of the Government, certainly intend them; and will, having reflected on these matters, decide not to press their motion to a Division, but to go forward in a spirit of cross-party consensus, so that we can work out together how to present to the entire House the information and analysis that Members on all sides rightly expect to have available in order to make an informed decision on a political issue of this historic importance.